Appellants Brief — Mattiello v. Connecticut

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JPREMB 19 COURT. . O\ vs cepeeie Court, US.

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TATE MENT NgT "RenTD , ] SUL 17 1968

Supreme Court of “the | aiktsS Bits 7 : fate —

October Term, 1968

No. 150°

——

FRANCES MATTIELLO>

a, _ » Appellant,

STATE OF CONNECTICUT,

} Appellee.

wep ye

“ah ;

On AppgaL From THE APPELLATE DIVISION OF THE

Crecuir Court or Connecticut

‘

BRIEF OF APPELLANT.

ete d

Rosert N. Grossy,

Public Defender,

- First Circuit Court,

- 21 Isaac Street,

N orwalk, Connecticut.

Josepu D. er ee tn,

Chief Public Defender, \

Connecticut Circuit Court,—.

31 High Street, -

' “New Haven, Connecticut.

_ Attorneys for Appellant.

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INDEX

Oprxtons Bere rT eyes ery (ecko na weneeun 1

OO PE my re eer aes 1

ConstITUTIONAL Provision aND ‘STATUTES IxvoLvED 2

QUESTIONS Parsentep nh ie 4

’ STATEMENT OF THE CASE ............... ae aa 5

ba is St i

SuMMARY OF THE ARGUMENT .......... inks cee - 6

ARGUMENT:

I. Whether or not C.G.S., §17-379 is a penal

statute, it must comply with the due process

and equal protection standards of the Four-

teenth Amendment to the United States Con-

stitution because the statute provides the

state a procedure for depriving young ad

males of their liberty ........ Perret y 7

II. The terms ‘‘habits of vice’’ and ‘‘vicious

' life’? render C.G.S., §17-379 void for vague-

ness under the Due. Process Clause of the

Fourteenth Amendment to the United States | ;

Constitution because they fail to afford the

accused a clear standard of conduct and fail

to provide the trier of fact a legally suf-

ficient standard ‘to measure the .conduct —

SUOTER cac scorer chareeteaa Pre yn rye 9.

A. C.G.S., §17-379 is void for ‘vagueness

because it fails to afford an accused a

clear standard of conduct ......... rs 9

Pe ee we an

sD Q

ITI.

INDEX

B. C.G.S.,.§17-379 is void for vagueness be-

cause it fails to provide the trier of fact

a legally sufficient standard to measure

the conduct proven ..................

C.G.8., §17-379 violates the Equal Protection

Clause of the Fourteenth Amendment to the’

United States Constitution because, by ap-

plying only to unmarried females between

the ages of sixteen and twenty-one, it allows

the state to deprive an arbitrarily-defined -

class of individuals of their liberty ........

A. A statute which singles out an arbi- ©

trarily-defined class of individuals and

deprives its members of basic human

. rights violates the equal protection stand-

ards of the Fourteenth Amendment...:.

B. When equal protection claims are raised,

court inquiry is not limited to the ques-

_ tion whether those within the statutory

' classification are treated equally ......

C. C.G.S., §17-379 arbitrarily discriminates

between males and females within the

same age group and in so doing denies

females equal treatment’ for identical _

behavior ........... ys heen hee

D. C.G.S., §17-379 arbitrarily discriminates

between married and unmarried females

within the ‘same age group and in so

doing: denies unmarried females equal

procedural protection against depriva--

tion of their liberty ....... ry eyes

PAGE

* INDEX | wo. . ill

PAGE

KE. Even if the ‘‘reasonableness’’. test

should be applied in the instant case,

C.G.S., §17-879 cannot survive a chal-

lenge on equal protection grounds .....

_ ConcLusion TTT TE ee 20

APPENDIX A—SratisticaL Summary oF PRocEEDINGS

Unper C.G.S., §17-379 ............ Pere ‘ae 21

| ‘Table of Cases — |

Baxtrom v. Herold, 383 U. S. 107 0) eee -8, 16, 18, 19

Connally v. General Constr uetion Co., 269 U. S. 385 ©

CRS 65 pis 6035 4a an eee Ones ceek eee 9,10, 12,13 ©

F., Giovannozzi & Sons v. Luciani, 41 Del. 211, 18

rh 2) 4s) ) ere ere tenes 11

Giaccio:v. Pennsylvania, 382 U. S. 399 (1966) .. 8,9, 10, 12

Gulf, Colorado & Santa Fe R.R. v. Ellis, 165 U. S.

150 (1BDG) concen cn ctesesccevendecec cesses 17

Harper v. Virginia Board of Elections, 383 U. S. 663

[| PP reer te ee ere te 14

Io ve Gawd, 367.0. B10 CGRT) os sc co icisccccsaes a |

In re Newborn, 53 Cal. 2d. 789, 350 P. 2d 116 (1960) 12

Korematsu_ v. United States, 323 U. S. 214 (1944) . 14

Lanzetta v. — Jersey, 306 U.S. 451 (1939) ...... ‘10

Loving v. Virginia, 388 U. S. 1 (1967) ........... M

MENT A RTP RAE ON =

eS tee S

SPUUF TRACER ey thes

ees ine INDEX

ek , | PAGE

McGowan v. State, 83 Okla. Crim. 310, 173 P. 2d 227

SS ecu naee eee ce ee ce ee

McLaughlin v. Florida, 379 U. S. 184 (1964) ..... 14, 16.

Morey v. Doud, 354 U. 8. 457 (1957) .......... eae

Patsone v. Pennsylvania, 232 U. S. 138 (1914) ..... 17 ;

Reynolds v. Sims, 377 U. S. 533 SEE ox kee eon 14

Rinaldi v. Yeager, 384 U. S. 305 (1966) ........ 14, 16,20

Sanger v. Bridgeport, 124 Conn. 183 (1938) ....... 20

Shutt v. Shutt, 71 Md. 193, 17 A. 1024 (1889) .....° 11

Skinner v. Oklahoma, 316 U.S. 535 (1942) .. 14, 15, 16, 17

Specht v. Patterson, 386 U. S. 605 (1967) ......... 8,16

Sproles v. Binford, 286 U. S. 374 (1932) ......... 10°

State v. Andrews, 108 Conn. 209 (1928) ........... 10

State v. Hernandez, 154 Conn. 698, 229 A. 2d 30

MS 3a. MAREN Aa dea potote ee adits TR 12

State v. Hurliman, 143 Conn. 502 (1956) 5 aaa 17

State v. Mattiello, 4.Conn. Cir. Ct. 55, 225 A. 2d 507 3

ci aPrepari re eee eee ee 5, re 7

State v. Stanley, — Conn. Cir. Ct. —, — A. 2d —

— (Vol. VII, App. Div., No. 33, May 12, 1967),

cert. granted, — Conn. —,:235 A. 2d 848 (1967) 5 i

United States ex rel. Robinson v. York, 281 F. Supp.

Fe Se ee a, BE Wa es cc eaekes ees 8, 14, 15, 18

United States v. Harriss, 347 U.S. 612 (1947)... 9

‘ United States v. L. Cohen Grocery Co., 255 U. S. 81

EES AAT RE re > 10, 12

Williamson v. Lee Optical, Inc., 348 U. S. 483 (1955) 14

Wright v. Georgia, 373 U. S. 284 (1963) ........... 7

els mF

‘INDEX

Statutes and Authorities Cited

Black’ s Law Dictionary eth i ) ee

F. Loveland, The Correctional Sastitusions and

Services of Connecticut (1966) ..............

Murray, et al, A New- English Dictionary of His-.

torical. Principles (vol. 10, pt. 2, 1928) ......

Radin’s Law Dictionary (1955) .............. at

Random House Dictionary (1967) ... Sealey naan a |

Section 17-360, Connecticut General Statutes ..... "

Section 17-379, Connecticut General Statutes .... 2, et seq.

Bostion 17-391, Connecticut General Statutes .... 4, 16, 18

U. S. Constitution, Amendment XIV, §1........ 2, et seq.

Webster’s Dictionary (3d Int’l ed.-1961) ........

44 Words & Phrases (Perm.’ed. 1962) ..:.........

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IN THE

Supreme Court of the United States

Ocroser TERM, 1968

No. 150 oor

Frances Matrti£.1o,

Appellant,

< Vv. : .

STATE OF ConNECTICUT, | .

- Appellee.

On AppeaL From THE APPELLATE DIvISION OF THE:

’ Crrcuir Court or CONNECTICUT

dy.

BRIEF OF APPELLANT

Opinions Below.

The memorandum opinion of the trial court overruling

. appellant’s demurrer is unreported, but has been made a

part of the Record (R. 7). The opinion of the Appellate

Division of the Circuit Court of Connecticut (R..12) is’

reported at 4 Conn. Cir. Ct. 55, 225 A. 2d 507 (1966).

The denial of certification by the Supreme Court- of Con-

necticut (R. 20) is = at —— Conn. ——,, 225 A. 2d

201 (1966).

Jurisdiction

, i ' :

‘ The judgment of the Appellate Division of the Circuit

Court of Connecticut was entered on November 10, 1966

(R. 11). Petition for certification to the Supreme Court

EAE Ht cake AR ah AM Babe E i

of Connecticut was filed on Ciniiihies 17, 1966, and denied

by that court on December 21, 1966. Notice - of appeal

- to the Supreme Court of the United States was filed with

the First Cireuit Court of Connecticut on March 20, 1967.

On May 18, 1967, the First Circuit Court of Connecticut

granted an extension of time under Rule 13 (1) (subse-

quently amended, effective October 2, 1967), to docket the

appeal. and file the Jurisdictional Statement. until June 2,

1967. The Jurisdictional Statement was filed on June 2,

1967. On March 27, 1968, pursuant to the direction of ©

this Court, the appellant! filed an additional response.

Probable jurisdiction was noted, and appellant’s motion

for leave to proceed in forma pauperis granted on June

3, 1968. —— U.S. ——, 88 S. Ct. 2037 (1968). The juris-

diction of this Court rests upon 28-U. S. C. 1257 (2).

Constitutional Provision -and_Statutes Involved

1. U. S. Constitution, Amendment XIV; §1:

of, are citizens of the United States and of the

State wherein they reside. No State shall make

or enforce any law which shall abridge the privilege

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty

- or property, without due process of law; nor deny

to any person within its jurisdiction the equal pro-

‘tection of the laws. _

-2. Section 17-379, Connecticut General Statutes:

‘‘Any unmarried female between the ages of: six-

teen and twenty-one years who is in manifest dan-

ger of falling into habits.of vice, or who is leading

a vicious life, or who has committed any crime,

‘‘Section 1. All persons born or naturalized in the .

United States, and subject to the jurisdiction there- |

may, ttpon complaint of the prosecuting attorney

of the circuit court, be brought before said court

for the circuit withini whose jurisdiction she resides .

or is found, and, upon conviction thereof, may be

committed, until she has arrived at the age of

twenty-one years, to the custody of any institution,

except Long Lane School, chartered by the general

assembly or incorporated under-the general laws for

the purpose of receiving and caring for females who

have fallen sate or are in danger of. falling into

vicious habits.’

8. Section 17-360, Connecticut General Statutes (as

amended by Public Act No. 152, §20, 1967) :

~‘*Women over sixteen years of age belonging to

any of the following classes who have been com- -

. mitted by any court of criminal jurisdiction to the

commissioner of correction shall be confined in The

Connecticut State Farm for Women: First, persons

convicted of, or who plead guilty to, the commis-

sion of. felonies; second, persons convicted of, or

who plead guilty to, the commission of misdemean- -

ors, including prostitution, intoxication, drug-using’

and disorderly conduct; third, unmarried girls be- _

tween the ages of sixteen and twenty-one years who

are in manifest danger of falling into habits of vice

or who are leading vicious lives, and who are con-

victed thereof in accordance with the provisions of

section 17-379; fourth, women sentenced to jails.

Only such offenders may be committeed to said in-

stitutions as in the opinion of the trial court. will

be benefited physically, mentally or morally by such

commitment, and immediately upon: commitment, a

careful physical and mental examination, by a com-

- petent —— shall be made of each person com-

waited.

Pee SIP Te ek Pee eee

4. Section 17-391, Connecticut General Statutes (as

amended by Public. Act No. 266, $1, 1967):

“The circuit court may sentence any male person

between the ages of sixteen and twenty-one years

mm to the reformatory in any case where the maximum’

( - ° term of imprisonment for the offense committed

does not exceed ifiprisonment in the State Prison

for five years. Any person so sentenced shall be

sentenced for an indefinite term and may be de-

tained in the reformatory not more than two years.’’

Questions Presented

1. Do the standards of the Fourteenth Amendment to

the United States Constitution apply to C.G.S.; §17-379

which, although characterized by the State court as a

‘‘protective’’ statute, permits the State to deprive a aie

_ woman of her liberty?

2.- Does C.G.S., §17-379 violate the Due Process Clause

of the. Fourteenth Amendment to the United States Con-

stitution because its‘terms are so vague and uncertain

that it fails to provide both the accused and the trier |

of fact a fixed standard by which to recognize and measure

the proscribed conduct?

3. Does C.G.S., §17-379 violate the Equal Protection

Clause of the Fourteenth Amendment to the United States

Constitution because it invades fundamental rights of an

arbitrarily-defined class of individuals, to wit, unmarried

females between the ages of sixteen and twenty-one years?

| Statement of the Case :

On March 17, 1966, the appellant was arrested in Nor-

walk, Connecticut, and charged with being in ‘‘manifest

danger of falling into habits of vice,’’ in violation of C.G.S.,

_§17-379 (R. 2). At that time she was within one month of.

attaining her eighteenth birthday and unmarried.

On April 15, 1966, a substituted information was filed

AR. 4) charging appellant with two additional crimes, one

- alleging ‘“‘lascivious carriage,’’ in voiolation of C.G.S.,

§53-219, the other alleging “disorderly conduct,’’ in viola-

‘tion.of C.G.S., §53-175. On the same date, the appellant,

through appointed counsel, filed a demurrer (R. 6) to the

allegation appearing as the. first count of the substituted

information. The demurrer claimed that §17-379 was

unconstitutional on its face in that it violated the Equal Pro-

tection and Due Process Clauses of the Fourteenth Amend-

ment to the Constitution of the United States.

After a hearing on May 13, 1966, the demurrer W was Over- .

ruled and a memorandum decision filed by the court (R.

7-8). Thereafter, appellant pleaded not guilty and elected

‘to be fried to the court on all caunts of the substituted in-

formation. Trial was held on June 10, 1966, and appellant

was adjudged guilty of the first two counts and not guilty

of the. third count.: The appellant was-committed concur-

rently on the first two counts to the Connecticut State Farm °

for Women. She began to serve this sentence on June 10,

1966.

Appellant appealed her conviction of being i in ‘‘manifest

| danger of falling into habits of vice,’’ to the Appellate Divi-

sion of the Circuit Court of Connecticut, assigning as error

the overruling of the demurrér. No appeal was taken from _

the conviction under C.G.S., §53-219. The Appellate Divi-

sion of the Cireuit Court of Connecticut held that since the

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statute was non- penal, it was unnecessary to decide the con-

stitutional questions (R. 12, 19).

Following this adverse decision, the appellant filed a

timely petition for certification in the Supreme Court of

Connecticut for review of the Appellate Division judgment.

On December 21, 1966, the Supreme ‘Court of Connecticut

exercised its discretion and denied appellant’s petition for

certification (R. 20).

On February 16, 1967, the appellant was released on

parole from the Connecticut State Farm for.Women. She

will be subject to the terms and conditions of parole until

June 10, 1969.

.”

Summary of the Argument

Sens C.G.S., §17-379 has been characterized by the

State court as a “‘protective” rather than a ‘‘penal’’ stat-

ute, it must still comply with the standards of due process

and equal protection since it permits deprivation of liberty.

Thus, the State court erred when it refused to decide the

constitutional questions presented (Argument I).

The ‘terms “‘‘thabits of viee’’ and ‘‘vicious life’? are so

vague and uncertain that the statute is void on its face. The

terms have no fixed legal or common sense meaning that:

would afford an accused a clear standard of conduct. More- .

over, the words are so vague that the conduct proven niust.

_ be measured by the individual predilections. of a judge or

jury (Argument. IT).

‘. The statute arbitrarily singles . out unmarried females -

against whom to impose its sanctions. Neither males of

the same age group nor married females are liable to com-

mitment for their’ ‘‘habits of vice’’ or ‘‘vicious life.’’ There

was neither reason nor necessity for the legislature to single .

out unmarried females and to ‘seek to stamp out vice and’

. vicious behavior only.in them (Argument III).

'f. Whether or Not C.G.S., §17-379 Is 4 Penal Statute,

It Must Comply With ‘the Due Process and Equal

Protection Standards of the Fourteenth Amendment

to the United States Constitution Because the Stat-

ute Provides the State a Procedure for Depriving

Young Females of Their Liberty..

| The Appellate Division of the Connecticut circuit court

‘declined consideration of the due process’ and equal pro-

tection claims first raised by the appellant’s demurrer.

(Cp. Wright v. Georgia, 373 U. S, 284, 287, 288 (1963), | .

on the propriety of raising constitutional issues by de-

murrer.) As grounds for its decision, the Appellate Divi-

sion held that C.G.S., §17-379 is a protective rather than

a penal statute and therefore is not governed by Four-

teenth Amendment standards. State v. Mattiello, 4 Conn.

Cir. 55, 225 A. 2d 507, 511 (1966) (R. 12, 19). In a later

ease the Appellate Division affirmed the’ protective char-

acter of §17-379 and, although examining the identical

equal protection claims raised in this case, upheld the

statute’s constitutionality. The due process claim of

vagueness was recognized but dismissed without discus-

sion. State v. Stanley, — Conn... Cir. ; A. 2d

— (Vol. VII,. App. Div., No. 33, May 12, 1967) (Cer-

tification granted by the-Connecticut Supreme Court, ——

_ Conn. , 235 A. 2d 848 (Dec. 12; 7967)). Recent de-

cisions of this Court indicate that the Appellate Division’s

conclusion in the instant matter was erroneous, and that

the constitutional issues should have been considered.

Even if it is conceded that $17-379 is a protective statute

designed to implement a parens patriae concern for minor

females, the statute.must still comply with Fourteenth ©

Amendment standards. In re Gault, 387 U. S. 1, 12, 13:

(1967). This Court has indicated that its concern is not

whether the State labels a statute civil, penal, or protec-

tive, but whether the statute ‘‘provides the State with a

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procedure for depriving [a] defendant of his liberty and ‘

his property.’’ Giaccio v. Pennsylvania, 382 U. 8. 399, 402

(1966). If a statute subjects an accused to potential loss

of liberty, it must eémply with due process and equal pro-

tection standards to ‘withstand a challenge on constitu-

tional grounds. Guaccio v. Pennsylvania, 382 -U. S. 399,

402, 403 (1966) ; Baxtrom v. Herold, 383 U. S. 107 (1966); -

Specht v. Patterson, 386 U. S. 605, 608 (1967).

Section 17-379 provides a procedure for incarcerating

young unmarried females in a penal institution. Such in- -

carceration may continue for up to five years, depending

on a girl’s age at the time of sentencing. On ifs face the

statute provides that a young female convicted under it

may be committed, until she has arrived at the age .

of twenty-one years, to the custedy of any institu-

tion, except Long Lane School, chartered . . . for

the purpose of receiving and caring for females.

The only institution in Connecticut chartered for the pur-

pose of receiving and caring for females is the State Farm

for Women at Niantic. Felons, misdemeanants, and those -

committed pursuant to §17-379 are all incarcerated there.

Although girls committed pursuant to §17-379 are segre--.

gated from the felons, they participate in the same pro-

grams and receive the same treatment as adult female

misdemeanants. F. LoveLtanp, THE CorrectTionau Institv-

TIONS AND SERVICES or Connecticut 45-47 (1966). The

misdemeanants include those convicted of prostitution,

drug usage, intoxication, petit larceny, and other crim-

inal offenses. C.G.S., §17-360. Although the State Farm

provides many rehabilitative programs and facilities, it

is still a penal institution. United States ex rel. Robinson

v. York, 281 F. Supp. 8; 14, 15 (D.C. D. Conn..1968).

-- Recent statistics indicate that §17-379 is used exten-

sively by the circuit court prosecutors. Within the last

seven years, some five hundred and sixty (560) girls have

been charged under the statute. Of this number, nearly

half have been convicted and over one-quarter have been |

committed to the State Farm. See Appendix A. Clearly §|

a statute so widely used as §17-379 which allows the State § ~

to commit young females to a penal institution for up to |

five years cannot escape due process and equal protection [

scrutiny merely because’ the State chooses to label it |

‘‘protective.’’ Hence, the appellant. submits that ‘the |

Fourteenth Amendment standards do apply to §17-379 and

that the Appellate Division erred in holding to the con-

trary.

II. The Terms “Habits of Vice” and “Vicious Life” |

Render C.G.S., §17-379 Void for Vagueness Under |.

the Due Process Clause of the Fourteenth Amend- :

ment to the United States Constitution Because They |

Fail to Afford the Accused a Clear Standard of Con-

- duct and Fail to Provide the Trier of Fact a Legally

Sufficient Standard to Measure the Conduct Proven.

A. C.G.S., §17-379 Is Void for’ Vagueness Because It Fails

to Afford an Accused a Clear Standard of Conduct.

Statutes which provide for deprivation of liberty must be

adequate to inform persons accused of violation thereof of

the nature and cause of the accusation against them. Giac-

cio v. Pennsylvania, 382-U. S. 399 (1966). The violation

must be. defined with appropriate definiteness and employ

terms of fixed legal meaning. Connally v. General Con-

struction Co., 269 U.S. 385, 395 (1926). These requirements

are based on the principle ‘‘that no man shall be held crim- -

-inally responsible for conduct which he could not reason- . .

ably understand t6'be proscribed.’’ United States v. Har-

_... riss, 347 U. S. 612, 617 (1947).

C.G.S., §17-379 stands condemned by the above authori-

ties because the terms ‘‘habits of vice’’ and ‘‘vicious life’’

‘are so indefinite and inclusive that they deny an accused her

right ‘‘to be informed as to what the State commands and

forbids.’’ Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

‘Thus, as this Court noted in United States v. L. Cohen Gro-

cery Co., 255 U. S. 81, 89 (1921) :

Observe the section forbids | no specific or definite act.

. It leaves open, therefore, the widest possible

leuaiey. the scope of which no one can foresee and

the result of which no one can foreshadow or ade-

quately guard against.

Since any conduct short of moral perfection is potentially

violative, it cannot.be said that these terms possess the fixed

legal meaning required by Connally v. General Construction

Co., 269 U. S. 385, 395 (1926) and Giaccio v. Pennsylvania,

382 U. S. 399, 402, ‘403 (1966).

Moreover, the terms ‘“habits of vice’’ and ‘‘vicious life’’

lack that precise common sense meaning which would per-

mit their vagueness to be cured by judicial delimitation.

Sproles v. Binford, 286 U. S. 374, 393 (1932) ; State v. An-

-drews, 108 Conn. 209, 213 (1928). Both legal and general

dictionaries indicate how numerous and varied are the -

meanings of ‘‘vice’’ and ‘‘vicious’’.* Thus, although they

* Legal dictionaries define “vice” as follows: apes

Biack’s Law Dictionary (4th ed. 1951): “vice . . . a fault,

defect or imperfection.”

Rapin’s Law Dictionary (1955) : “vice . . . 2. A defect or

‘imperfection ; immoral conduct.”

In 44 Worps axp Purases (Perm. ed. 1962), the word “vice” is

applied generally. to defects in property, while “vicious” relates

_ generally to a propensity in animals.

Dictionaries of general usage define the words as follows:

Wesster’s Dictionary (3d Int’l ed. 1961): “vice . . . moral

depravity or corruption: evil conduct or habits: indulgence of

degrading appetites . . . a wrong, degrading, or immoral habit or

practice: evil behavior of a particular or accustomed kind ...a fault

Bg ““

' or shortcoming that becomes foible ...a moral flaw. . . vicious

... having the nature or quality of vice: violative of moral rectitude :

(footnote continued on next page) .

CL NRT LADD

are common words in daily use, their generality of usage

has resulted 1 in an assortment of definitions instead of any :

Uloatinate soatinnad from previous page)

contrary to accepted standards of right and good: . . . addicted to :

vice, immorality, or depravity: corrupt or dissolute in conduct: .. . :

missing or incompatible with a norm of excellence. . . .” . r

Ranpom House Dictionary (1967): “vice ... . 1. an immoral 3

or evil habit or practice. 2. immoral conduct ; depraved or degrading

behavior :’. . . 3. ‘sexual immorality, esp. prostitution. 4. a particu-

lar form of depravity. 5. a fault, defect, shortcoming, or imperfec-

tion: . . .” “vicious . . . 1. addicted to or characterized by vice; :

grossly immoral; depraved; profligate: . ... 2. given or readily dis- °F

posed to evil: . . . 3. reprehensible, blameworthy; wrong: .. . 4.

”

_ spiteful; malicious: . . .

Murray, et al., A New EnGiisn DIcTIONARY oF HISTORICAL z

PRINCIPLES (vol. 10, pt. 2, 1928): “vice: .. . 1. Depravity or cor- 4

ruption of morals; evil, immoral, or wicked habits or conduct; in-

-dulgence in degrading pleasures or practices... . 2. A habit or

practice of an immoral, degrading or wicked nature. .. . 4. Moral

fault or defect (without implication of serious wrongdoing); a

flaw in character or conduct.”: “vicious: ... 1.1. Of habits, practices, .

etc.: Of the nature of vice; contrary to moral principles; depraved,

immoral, bad... .2. Of persons: Addicted to vice or immorality ; of

. depraved habits : profligate, wicked. ... 3. Falling short of, or vary-

ing from, what is morally or practically commendable ; reprehensible,

blameworthy, mischievous. .. .”

An extensive search of the cases reveals that where “vice” and

“vicious” have been defined, the words generally have been used in

relation to property or animals. See e.g., F. Giovannozzi.& Sons v.

Luciani, 41.Del. 211, 18 A. 2d 435 (1941). In McGowan v. -State,

83 Okla. Crim. 310, 173 P. 2d 227 (1947), the phrase “vicious or. -

immoral person’’, as used in a contributing to the delinquency of a

minor statute, was discussed but not defined. In Shutt v. Shutt, 71

Md. 193, 17 A. 1024, 1025 (1889), Chief Justice Alvey made the

following comment on the phrase “excessively vicious conduct” as

applied to a divorce statute. ,

“The terms “excessively vicious conduct” are e very indefinite ; .

and of the multitude.of vices to which humanity is subject

-the Legislature has given no iritimation as to the class or

character of vices to which the statute was intended to apply.

It would, however, be difficult to suppose that it was intended

to apply to all the multiform vices to which mankind is liable,

though indulged i in to an excessive degree.” an i

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single precise meanings. In re Newborn, 53 Cal. 2d oe 350

P. 2d 116, 121 (1960). °

That the words are inadequate to inform an individual of

the extent of prohibited conduct ‘‘so clearly results from

_ their mere statement as to render elaboration on the subject

wholly unnecessary.’’ United States v. L. Cohen Grocery

Co., 255 U. S. 81, 89 (1921). A young girl is required to

guard against all moral and social faults or shortcomings,

and yét she is unable to ascertain from the statute the

standard of morality or social value. The terms are so |

vague that an unmarried minor female ‘‘of common intel-

ligence must necessarily guess at [their] meaning.’? Con-

nally v. Gereral Construction Co., 296 U?S. 385, 391 (1926).

Such vagueness, when the liberty of an individual is at —

_ stake, cannot be tolerated under our system of justice. .

B. C.G.S., §17-379 Is Void for Vagueness Because It Fails

to Provide the Trier of Fact a Legally Sufficient weed

ard to Measure the Conduct Proven.

No person ’s liberty may be taken away merely because his

conduct offends the capricious sensibilities of the trier of

It is established that a law fails to meet the require-

ments of the Due Process Clause if it is so vague and

standardless that it leaves . . . judges and jurors

free to decide, without any legally fixed standards,

what is prohibited and what is not in each particular

case. Giaccio v. Pennsylvania, 382 U. S. 399, 402,

403 (1966). : .

Section 17-379 ia the required fixed legal standards to

guide the trier of fact. In order to secure a conviction un-.

der the statute the prosecution must convince the trier that

the violation charged has been proven beyond a reasonable

doubt. State v. Hernandez, 154 Conn. 698, 229 A. 2d 30, 31

(1967). Yet §17-379 does not even indicate the character cf

conduct that might be legally cognizable as a vice or as

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viciousness. The trier is left to devise a legal standard

according to his own personal predilections and then to de-

cide whether the prosecution has proven beyond a reason-

able doubt that the violations of the.trier’s standard are in

danger of becoming habitual. The process is legally absurd,

and the petitioner submits that

The result is that the application of the law, depends

not upon a word of fixed meaning in itself, or one

made definite by statutory or judicial definition, or by -

the context or other legitimate aid to its construction,

but upon the probably varying impressions of juries.

The constitutional guarantee cannot be allowed

to rest upon a support so equivocal. Connally v.

General Construction Co., 269 U. S: 385,395 (1926).

Because the terms of §17-379 are so vague and indefinite,

the petitioner submits that the statute both fails to afford

an accused a clear standard of conduct and. fails to ‘provide

the trier of fact a legally sufficient standard to measure the

- @onduct proven. For these reasons it is submitted that

§17-379 violates. the Fourteenth Amendment’s Due Process

Clause and must be held ‘unconstitutional

Ill. C.6.S., -§17-379 Violates the Equal: Protection

Clause of the Fourteenth Amendment to the United |

States Constitution Because, by Applying Only to

Unmarried Females Between the Ages of Sixteen

and Twenty-one, It Allows the State to Deprive an

‘Arbitrarily-defined Class of Individuals of Their

Liberty.

A. A Statute Which. Singles Out an Aprbitrarily-Defined

Class of Individuals and Deprives Its Members of Basic

Human Rights Violates the Equal Protection maniieee

of the Fourteenth Amendment.

The Equal Protection cases decided by this Court in

‘recent years evidence two distinct tests employed to decide.

the. issues raised. The first test requires the challenged

statutory classification to be ‘‘reasonably related to the

purposes of the Act in which it is found.’’ Morey v. Doud,

354 U. S. 457, 465 (1957). See also Williamson v. Lee

Optical, Inc., 348 U. S. 483, 489 (1955) ; Rinaldi v. Yeager,

384 U. S. 305, 308 (1966). The second test subjects the

challenged classification to the ‘‘most rigid secrutiny’’ to

determine whether it is ‘‘necessary to the accomplishment

of some permissible state objective.’’ Loving v. Virginia,

388 U.S. 1, 11 (1967). See also Harper v. Virginia Board °

of Elections, 383 U. S. 663, 670 (1966); MWeLaughlin: v.-

Florida, 379 U. S. 184, 192 (1964) ; Reynolds v. Simms, 377

_U. S. 533, 561, 562 (1964); Aorematsu v. United States,

323 U, S. 214, 216 (1944) ; Skinner v. Oklahoma, 316 U. S.

- 535, 541 (1942) ; United States ex rel. Robison v. York, 281 -

F. Supp. 8, 14 (D. C. D. Conn. 1968). _

Although the circumstances. under which the ‘‘necessity’!

rather than the ‘‘reasonableness’’ test will be applied have

not yet been clearly demarcated, an examination of the

cases reveals that the necessity test has been invoked con-

sistently where the challenged statutory classification im-

pinges upon a basic personal right, whether civil, political,

v. Virginia Board of Elections, 383 U, S. 663 (1966), in

which the Court said: |

We have long been mindful that where funda-

or ‘‘human.’’ Such circumstances were stressed in ae

_ mental rights and liberties are asserted under the: °

Equal Protection Clause, classifications which might

invade or restrain them must be closely scrutinized

-and carefully confined. 383 U.S. at 670.

Thus in Loving, McLaughlin, and K orematsu this Court

struck down discriminatory classifications which infringed

upon civil rights. In all those cases the challenged statutes

contained classifications drawn along racial lines. In

Reynolds and Harper statutes which diluted the right to

vote, a political right, were held unconstitutional. In°

Skinner and Robinson statutes infringing upon ‘‘sensitive

re ee ce ee ns

and important area[s] of human rights’? (Skinner v.

Oklahoma, 316 U. S. 535, 536 (1942)) were -invalidated

upon equal protection grounds. Skinner involved a statute

allowing sterilzation of certain criminals, which, according

to the Court, infringed upon ‘‘the right to have offspring. ‘os

316 U. S. at 536. Robinson involved a statute which-im-

posed longer prison sentences upon women than men con-

victed of identical offenses.

If the proper interpretation of the foregoing cases is

that a statute will be rigidly scrutinized and evaluated

under the necessity test where it appears that its classifi: _

cation infringes upon basic. personal rights, these rigid

standards should be applied in the instant case. The right

infringed by C.G.S., §17-379 is a ‘‘human”’ right similar to

those involved in Skinner and Robinson. It is the right of

a female adolescent to develop her personality and style of

life without state: interference unless her conduct clearly

violates the state’s crimimal law. The adolescent years are

a crucial developmental period in the life of any individual.

During those years a young woman is exposed to a variety

of formative cultural experiences which shape her character

as an adult. If the state arbitrarily deprives a female

adolescent of the opportunity to grow to maturity in free

and open society, ‘clearly it has imposed an invidious dis-

crimination upon her. Because §17-379 permits the state

to deprive an adolescent female of her liberty arbitrarily,

the appellant submits that the statute should be severely

scrutinized and coristitutionally upheld only if it appears:

to be necessary to implement a-legitimate state purpose.

B. When Equal Protection Claims Are Raised, Court In-

quiry Is Not Limited to the Question Whether Those

' Within the Statutory Classification Are Treated

~ Equally. ’

Court inquiry is not limited to. the question whether .

- those within the statutory classification .are. treated

equally, but extends to consideration of whether the clas-

sification arbitrarily :discriminates between those subject

“to its terms and those excluded. McLaughlin v. Florida,

' 379 U. S. 184; 191 (1964); Rinaldi v. Yeager, 384 U. S.

_ 805, 308 (1966). Pursuing such inquiry, this Court has

‘held that those who have committed intrinsically the same

quality of offense must be punished equally, Skinner v.

Oklahoma, 316 U. S. 535, 541 (1942), and that those who

are liable to substantially equal disposition must be af-

forded equal procedural safeguards. Baxtrom v. Herold, :

383 U. S. 107, 110 (1966). Cf. Specht v. Patterson, 386

U.S. 605, 608 (1967). In subsequent sections of this ar-

gument the appellant raises claims similar to those in.

’ both Skinner and. Baxtrom. Relying on McLaughlin and

Rinaldi, the appellant submits that this Court has au-

' thority to consider those claims.

C. C.G.S., §17-379 -Arbitrarily’ Discriminates Between

Boles. and Females Within the Same Age Group and

in so Doing Denies Females Equal Treatment for Iden-

tical Behavior.

Section 17-379 applies only to ae females be-

tween the ages of-sixteen and twenty-one years of age.

Young women convicted under it may be committed to a

penal institution for up to five years. (See Argument I,

supra.) A male in the same age group is subject to dif-

ferent and considerably milder penalties under an alto-

gether different set of categories. : A young male cannot

be committed for his ‘“‘habits of vice’’ yor ‘‘vicious life.”’

In order to be subject to any kind of

must first be convicted of a substantive crime as defined

in Title 53 (entitled ‘‘Crimes’’) of the Connecticut Gen-

eral Statutes. Only then can the circuit court sentence —

.him to the reformatory under the provisions of C.G.S.,

§17-391. Moreover, under §17-391, a young male convicted

of a criminal offense would be liable to a maximunt sen-

tence of two years 1 in the reformatory.

“=

commitment, he ~

Two elements of arbitrary and unnecessary discrimina-

tion between the treatment of males and females appear

from the foregoing comparison. First, males must be con- .

victed of substantive criminal acts.under Title 53 before

they are liable to commitment. This means that they must

be charged with a-substantive offense and have all the

elements of a criminal act proven against them. Young

- women; on the other hand,.rhay be committed indefinitely

uppn a loose showing that they are in ‘‘manifest danger

of falling into habits of vice’’ or are ‘‘leading a vicious

life.’’

Assuming that society can agree on workable definitions

of ‘‘vice’’ and ‘‘viciousness,’’ one can assume that the

legislature may wish to suppress them. However, it is

impossible to comprehend why it was necessary for the

legislature to make vice and viciousness legally objection-

able only in young females. Female vices are no more

dangerous to society: than those of the male, and hence

cannot be singled out as an evil mainly to be feared.

Patsone v, Pennsylvania, 232 U. S. 138, 144 (1914). Neither

is a ‘‘vicious’’ female adolescent more likely to become an’

adult of bad character than isa ‘‘vicious’’ male adolescent.

Clearly, there are no ‘‘natural and.substantial differences,

germane to the subject and purposes of the legislation’’

which justify this sexual differentiation. State v. Hurli-

man, 143 Conn. 502, 506 (1956). See, Gulf, Colorado ¢&

Santa Fe R.R. v. Ellis, 165 U. S. 150, 165, 166 (1896).

The effect of §$17-379 is to allow young men to escape

punishment for conduct legally condemned in young

women. The statute thus contenances unequal treatment

for substantially identical behavior and in so doing vio-

lates the standards of the Equal Protection Clause as

stated in Skinner v. Oklahoma, 316 U. S. 535, S41 (1942) :

When the law lays an unequal hand on those who-

have committed intrinsically the same quality of

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offense, .. . it has made as invidious a-discrimina-*

tion as if it had selected a particular race or nation-

ality for oppressive treatment. — :

The ‘second discriminatory element is the disparity, of

sentences to which males and females are liable. A male

convict, sentenced pursuant to. C.G.S., §17-391, is liable

for a maximum term of two years in the reformatory..

Under §17-379, however, a young woman’ may be sentenced

indefinitely to the State Farm for Women. This means

that she 18, liable for a maximum term of five years, de-

. pending’ ipon her age at‘the time of. sentencing. Such’ -

disparity, which subjects females to greater liability than

» males, falls squarely within the: proscription of United

States-ex rel. Robinson v. York, 281 F. Supp. 8 (D. C. D.

Conn. 1968). There the court, in — upon C.G.S.,

§17- 360, stated: $e

Insofar as, the future: protection of society is con-. -

_ . cerned, the state has failed to carry its burden in

support of the proposition that a greater period

of imprisonment is necessary for the deterrence of °

women than for men. And it is hardly an open - ~

question that women, as such, do not deserve

greater punishment than men. In our society any

- discrimination. in ‘the treatment of women is be-

ie} in their favor. 281 F. Supp. at 16.

'D. C.G.S., §17-379 Arbitrarily Discriminates Between

Married and Unmarried Females Within the Same

Age Group and in:so Doing Denies Unmarried Females —

Their Liberty. - . ‘ st

Arbitrary procedural. disparities are among the statutory

distinctions violative of équal protection standards. Baz-

trom v. Herold, 383 U. 8S. 107,110 (1966). Where. there is

no legitimate reason for distinguishing between two classes

ee yee

_ position,” equal protection standards demand that - -both

~ classes receive the same seeeaaie protection. Id. at 114,

115,

In Connecticut, no matter whether a young woman ais mar-

ried or single, upon her conviction in the circuit court, she

is sentenced to the State Farm for Women. C€.G.S., §17-360.

All inmates, with the exception of felons, receive the same

treatment at the State Farm. F. LoveLanD, THE CoRREC-

TIONAL : INSTITUTIONS AND SERVICES OF Coxwzortcur 45-47 .

(1966).

If a young woman is married, she’ cannot be committed to

the State Farm without having first been convicted of a

criminal offense under Title 53 of;the General. Statutes.

- On the other hand, §17-379 allows a single female of the

same age to be committed to the State Farm following a

proceeding in which the evidentiary requirements for con-

that must be proven against a single female is that she has

‘somehow violated the trier of fact’s .personal morality.

(See Argument II., B., supra.) It is submitted that there is

no reason, much less a necessity, for such procedural dis-

parity. ‘To allow an accused’s procedural rights to turn on

whether she is married or single is an invidious discrimina-

‘tion and a denial of equal protection under the esate of

Baxtrom v. Herold, 383 U.S. 107 (1966).

Upon the basis of the foregoing analysis, the appellant

_ submits. that the classification §17-379 embodies permits

the State to impose an invidious‘discrimination upon its un-—

married female, adolescents. Hence §17-379 cannot with-

stand the rigid scrutiny that equal protection standards de-

mand, and for this reason must be held unconstitutional.

”

E. — if the “Reasciiableness” Test Should Be Applied

in the Instant Case, C.G.S., §17-379 Cannot Survive a

“ Challenge on Equal Pestectton Grounds. ,

- According to Rinaldi v. Yeager, 384 U.S. 305, 309 (1966), -

court inquiry under the reasonableness test is directed

toward determining whether the distinctions focused upon

in the statute as classifying features bear a reasonable re-

lation to the legislative purpose. The classifications em-

‘bodied in C.G.S.,. §17-379 focus on sex'and marital status.

Neither of these foci-reflect a reasonable relation to the

manifest legislative purpose—to control vice and vicious

behavior. Such conduct is as objectionable in males and

in married females as it is in unmarried females. Thus

‘‘there is no fair reason for [this] law which would not re-

quire with equal force its extension to others whom it leaves

untouched.’? Sanger v, Bridgeport, 124 Conn. 183, 189

(1988). Consequently, the appellant submits that §17-379

on its face arbitrarily denies unmarried females equal pro: .

> - tection of the law and for this reason is unconstitutional.

CONCLUSION

For the reasons stated above, this Court should reverse

the judgment and sentence of the Appellate Division of

_ the Circuit Court of Connecticut and hold that C.G. eS.

§17-379 is unconstitutional as applied to unmarried fe-

_males between the ages of sixteen and twenty-one.

q Q :

; Respectfully submitted,

| Rosert N. Grossy,

a Cee Josep D. Harpaven,

Attorneys for Appellant. —

July 18, 1968.

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APPENDIX A

Statistical Summary of Proceedings Under

C.G.S., §17-379

PROCEEDINGS PURSUANT TO Section 17-379 ConNNECTICUT

GENERAL Statutes, 1961-1967.* . '

Number Percentage

Total qnnen: . A ere ue 560 100.0%

Found guilty: 3 256 . - . 45.8%

Nolle proseque: 179 : . 31.9%

Found not guilty: ed ny 4 - » 96%

Referred to the J uvénile Court: 47 8.4%

Boundover to the Superior Court: a 24 - = 439%. .

- INDIVIDUALS COMMITTED TO THE Connecticut ies FARM.

FOR WoMEN ‘PURSUANT TO. SECTION. 17-379 Connecticut

GeNrRAL Statutes, -1961-1967.**

Year. aia Number at

ee ase

1962 nome ice

1963 | tee ee

1964 | . %

1965 eee

1966 “. 97

1967 po

Total: i 148

Total committed is equal to 26.4% of total cases.

* Source: State of Connecticut; Circuit Court, Statistical Reports,

Section G, January 1, 1961-November 30, 1967.

<. ** Source: Division of Records, Connecticut State Farm for |

~ Women, Niantic, Connecticut.

| XN \

~ >

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.