When does uncertainty regarding enforcement standards constitute an impermissible delegation of legislative authority such that a criminal law should be declared unconstitutionally vague? The Kansas Supreme Court addressed this important question in answering whether a small pocketknife meets the statutory definition of a prohibited knife in State v. Harris.[1]

Kansas law makes it a crime for a convicted felon to possess a “knife.” K.S.A. 2019 Supp. 21-6304 defines a knife as “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character.” In State v. Harris, the Kansas Supreme Court considered whether the statute’s catch-all clause—“or any other dangerous or deadly cutting instrument of like character”—was impermissibly and unconstitutionally vague. The Kansas high court’s July 2020 decision held that it is.

Christopher Harris, a convicted felon, brandished a pocketknife with a 3½ inch serrated blade during an altercation in Wichita. Kansas charged him with aggravated assault, criminal use of a weapon, and criminal possession of a weapon by a felon. At trial, Harris was acquitted of the first two charges, but the jury convicted him of the third.

Harris appealed on two grounds: first, that the law’s definition of a knife was unconstitutionally vague both facially and as applied to his case; and second, that the trial court erred in preventing Harris from introducing evidence that his parole officer told him that he could legally possess his serrated pocketknife. The appellate court rejected Harris’s constitutional challenge, holding that the statute was not “so vague that it [did not warn] people of ordinary intelligence of the prohibited conduct or that the statute is susceptible to arbitrary and discriminatory enforcement.”[2] The appellate court, however, reversed Harris’s conviction and remanded the case for a new trial after finding “a reasonable probability that the outcome of the trial would have been different had the court allowed Harris to introduce the parole officer’s testimony and the [Kansas Department of Corrections’] Handbook to the jury.”[3] Harris and Kansas appealed their respective appellate losses to the Kansas Supreme Court.

The Kansas Supreme Court’s majority ruled that the Kansas statute was unconstitutionally vague on its face, and therefore the majority declined to address the evidentiary question presented by the state.[4] Two justices joined Justice Daniel Biles in dissent.

Justice Caleb Stegall, writing for the Harris majority, observed that vagueness challenges raise two concerns: due process and separation of powers. Due process challenges ask whether “the statute fairly put people on notice as to the conduct proscribed? Are the words used common and understandable enough to allow persons of ordinary intelligence to easily grasp their meaning?”[5] The separation of powers concerns arise when the legislature “fails to ‘provide explicit standards’ for enforcement” such that the law “‘threaten[s] to transfer legislative power to’ police, prosecutors, judges, and juries, which leaves ‘them the job of shaping a vague statute’s contours through their enforcement decisions.’”[6] The majority focused on the second concern, and held that the statute’s “or any other dangerous or deadly cutting instrument of like character” clause violated this separation of powers doctrine and presented a “textbook example” of the arbitrary guesswork induced by vague laws because:

. . . [Kansas] enforcement officials must ask, what exactly is a dangerous cutting instrument of like character? We are unable to discern a sufficiently objective standard of enforcement in this language. Instead, we are left with the subjective judgment of the enforcement agencies and actors. A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters?[7]

The dissent objected to such hypotheticals, but the majority countered that the “crucial question” was whether the law “invite[s] ‘varying and . . . unpredictable’ enforcement decisions ‘on an ad hoc and subjective basis,’” and that the state’s own inconsistent interpretations answered that question in Harris’s favor.[8] The majority noted that the state’s prosecutors believed that the statute was enforceable against Harris’s possession of the pocketknife, while the Department of Corrections through its Handbook and parole officer believed it was not. Thus, the majority concluded, “the circumstances present us with an unmistakable instance of arbitrary enforcement of an inherently subjective standard.”[9]

Justice Biles disagreed that the statute was unconstitutionally vague either facially or as applied to Harris. He argued in dissent that the majority was wrong to frame the challenge only as a facial one, and that “the statutory language does not insert subjective judgment unmoored from the statute’s specifics. Harris’ knife . . . falls well within this statute’s foreseeable bounds.”[10] The majority’s approach, according to Justice Biles, “goes too far” by transforming “the appropriate degree of specificity . . . from a requirement for commonsense adequate protections against arbitrary and discriminatory enforcement to an unbearably exacting requirement that all statutes making specific conduct criminal must be wholly expressed by the Legislature.”[11] Such an exacting standard, argued Justice Biles, plows new legal ground for Kansas.[12]

The dissent, however, would have reversed Harris’s conviction and afforded him a new trial in which to present his “mistake-of-law defense” with the previously excluded evidence that his parole officer and the Department of Corrections Handbook had advised Harris that he could legally possess a pocketknife with a blade shorter than 4 inches.[13]

The Harris decision opens the door for challenges to other statutes that might lack explicit standards for enforcement under principles of non-delegation and void for vagueness.

 

Note from the Editor:
 
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[1] State v. Harris, No. 116,515 (Kan. July 17, 2020).

[2]Id. slip op. at 4 (Kan. App. 2018) (unpublished opinion).

[3]Id. at 8.

[4]Id. at 6 (“Because we resolve this case in Harris’ favor on constitutional grounds, we need not reach the evidentiary issue raised by the State's petition for review.”).

[5]Id. at 8.

[6]Id. (quoting Sessions v. Dimaya, 138 S. Ct. 1204, 1228 (2018) (Gorsuch, J., concurring)).

[7]Id. at 11.

[8]Id. (citations omitted).

[9]Id. at 12.

[10]Id. at 19 (Biles, J., dissenting).

[11]Id. at 23 (Biles, J., dissenting).

[12]Id. at 22 (Biles, J., dissenting).

[13]Id. at 13 (Biles, J., dissenting).