Whoa! So the scenario could occur that if your case happens to end up in one circuit, you may go free because that circuit holds the law unconstitutional, whereas in another, you could possibly be convicted because that circuit may not. Is there any research on the degree of dissension among circuits holding a law (or part thereof) unconstitutional?
Usually that involves a very fine point of law, some broad stroke that many feel runs counter the current socialcommon view of fairness. (i.e. sodomy in private is illegal, or blacks can’t use public toilets marked as for whites only).
As mentioned above, when two different circuits seriously disagree, it’s a good candidate for SCOTUS to sort it out once and for all.
On a side note, if a prosecutor charges you with a crime that they know is based on an unconstitutional law, they leave themselves open to a suit for malicious prosecution - why would you harass someone with a charge that you know will be thrown out? That’s an abuse of power.
If I remember right, wasn’t the vagrancy law in CA struck down as being too vague, but still dudes we arrested for it for years?