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December 22, 1971

Esther Frances GESICKI et al., Plaintiffs,
Russell G. OSWALD, Commissioner of Correctional Services, et al., Defendants

The opinion of the court was delivered by: KAUFMAN

IRVING R. KAUFMAN, Circuit Judge:

This class action presents an issue of fundamental importance concerning the power of a state to enforce against juveniles a purportedly non-criminal statute which permits commitment of defendants to adult criminal correctional programs and facilities, but is impermissibly vague if judged by the standards applicable to penal laws. We hold that the particular provisions at issue, on their face, violate due process of law.

The procedural and factual background is well presented in Judge Lasker's opinion requesting that this three-judge court be convened. D.C., 336 F. Supp. 365. We need reiterate only the essential details necessary to frame the questions we now resolve.

 Each of the three named plaintiffs was "deemed" by a County Court of New York State to be a "wayward minor" between the ages of 16 and 21, under N.Y. Code Crim. Proc. § 913-a(5) or (6), each having been found "morally depraved" or "in danger of becoming morally depraved." *fn1" As a result, each was subsequently sentenced to terms in the Albion and Bedford Hills Correctional Facilities, penal institutions for adult criminals. *fn2" All three have since been paroled from Bedford Hills, and each currently remains on parole status.

 Plaintiffs rely on three arguments in requesting that we set aside their convictions, declare §§ 913-a(5) and (6) unconstitutional, and enjoin the further enforcement of those provisions. They urge that the provisions are unconstitutionally vague, that they permit punishment of a status or condition rather than a criminal act, and that their enforcement violates the equal protection of the laws by discriminating against 16-to-21-year olds in relation both to adults and to younger children who are not subject to the Wayward Minor statute. Since we agree with plaintiffs that the provisions under which they were convicted are unconstitutionally vague and impermissibly punish a status, we do not reach the equal protection claim.

 Before discussing the merits, a threshold question is presented by plaintiffs' designation of their suit as a class action "on behalf of all persons presently serving sentences as Wayward Minors" under Section 913-a. Judge Lasker expressly reserved the determination of the propriety of the class action and the appropriate definition of the class to this court. We find that all the requisite elements for a class action are present, but only with respect to a more limited class then plaintiffs seek to represent. These litigants obviously are not appropriate representatives of anyone declared to be a "wayward minor" by virtue of any subsection other than subsections (5) and (6) under which they themselves were adjudicated. See Rule 23(a)(2)-(4), F.R. Civ. P.

 With respect to the class of persons who have been found "wayward" under subsections (5) and (6) and are still subject to the operation of the statute, however, each of the requirements of Rule 23(a), F.R. Civ. P., are met. We are advised that it is estimated that more than 200 individuals formerly adjudicated "wayward minors" are currently incarcerated or on parole or probation, and we are not aware of any disagreement over the claim that subsections (5) and (6) were applied in a substantial number of these cases. Recourse to joinder of the members of this large class, therefore, would be impractical. In addition, since we hold the provisions in question unconstitutional on their face, the questions of law and the claims presented are identical for all members of the class. The named plaintiffs manifestly will adequately protect the class. Finally, the adjudication here with respect to the parties before us will "be dispositive of the interests of the other members" of the class. F.R. Civ. P. 23(b)(1)(B). *fn3" See also id. 23(b)(2).

 1. Vagueness4

 It is clear to us that the terms "morally depraved" and "in danger of becoming morally depraved" fall far beyond the bounds of permissible ambiguity in a standard defining a criminal act. Indeed, a penal statute purporting to outlaw "evil," as these criteria essentially do, is a paradigm of a statute "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926). The concept of morality has occupied men of extraordinary intelligence for centuries, without notable progress (among even philosophers and theologians) toward a common understanding.

 By contrast with the language in question, criteria previously found too vague to pass constitutional scrutiny are models of precision. See Coates v. Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971) ("conduct . . . annoying to persons passing by"); Palmer v. City of Euclid, 402 U.S. 544, 91 S. Ct. 1563, 29 L. Ed. 2d 98 (1971) ("suspicious person"); Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939) ("known to be a member of any gang"); Connally v. General Constr. Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926) ("not less than the current rate per diem wages in the locality where the work is performed").

 To require more definite standards of criminal behavior than those at issue is hardly to require the "impossible." The cases the State relies on to buttress its argument that a penal statute is not unconstitutional merely because there are doubtful hypothetical cases at the margins of a basically clear standard, to the contrary, amply illustrate the intangible, diffuse, and chameleonic nature of the concept of "moral depravity." See United States v. Petrillo, 332 U.S. 1, 67 S. Ct. 1538, 91 L. Ed. 1877 (1947) ("unlawfully" and "by the use of . . force" or threat of force "to coerce, compel or constrain"); United States v. Irwin, 354 F.2d 192 (2d Cir.), cert. den., 383 U.S. 967, 86 S. Ct. 1272, 16 L. Ed. 2d 308 (1965) (statute prohibited giving "anything of value to any public official").

 An excellent object lesson in the lack of meaning of the challenged standards is provided by the specific allegations that were the apparent basis for the adjudications of the named plaintiffs here. The state urges that those charges -- involving pregnancy out of wedlock, sexual promiscuity, suspected drug use and truancy -- are clear instances of "moral depravity," so clear, that even if the standards are otherwise vague, when applied to these plaintiffs they are clear and certain. *fn5" We cannot agree.

 Justice Jackson, in Musser v. Utah, 333 U.S. 95, 97, 68 S. Ct. 397, 398, 92 L. Ed. 562 (1948), described the similar phrase "injurious to public morals:"

Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order. In some States the phrase "injurious to public morals" would be likely to punish acts which it would not punish in others because of the varying policies on such matters as use of cigarettes or liquor and the permissibility of gambling. This led to the inquiry as to whether the statute attempts to cover so much that it effectively covers nothing. Statutes defining crimes may fail of their purpose if they do not provide some reasonable standards of guilt. See, for example, United States v. [L.] Cohen Grocery Co., 255 U.S. 81 [41 S. Ct. 298, 65 L. Ed. 516]. Legislation may run afoul of the Due Process ...

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