Mark Joseph Derrico v. Georgia

Under Kolender v. Lawson, 461 U.S. 352, 357- 358 (1983), this Court has cautioned, “Where the legislature fails to provide … minimal guidelines, a criminal statute may permit ‘a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections,” citing Smith v. Goguen, 415 U.S. 489, 575 (1974). The resulting rule—sometimes known as the void-for-vagueness doctrine—has proven to have a blind spot, a presentation in which clearly arbitrary enforcement is lost sight of in application. As in the instant case, the alleged victim meets the same criteria (the elements) of each of the statutes or offenses under which Petitioner Derrico was prosecuted. This is a sort of arbitrariness per se, in that Defendant was prosecuted and convicted and the alleged victim was not, though he could have been. The question presented is: Does the void-for-vagueness doctrine extend to cases such as Derrico’s where courts have rested on the authority of judges and juries to ratify arbitrary enforcement? In the decision below, the Supreme Court of Georgia wholly ignores arbitrary enforcement because it concludes that the evidence was sufficient to convict Derrico. The problem is that the evidence is also sufficient to convict the victim who was not prosecuted, on each of the same charges. (I)