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Rh if real threat of enforcement is wanting. If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. [Citations omitted.]

Id. at 503-04, 507-08 (emphasis added). The Court's analysis in Poe was specifically limited to the federal judicial power to declare a state law unconstitutional. It is important to note that the statute at issue in Poe was struck down just four years later in Griswold v. Connecticut, 381 U.S. 479 (1965), after the State of Connecticut prosecuted two people for violating it.

More recently, in Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979), the United States Supreme Court held a challenge to the criminal penalty provision of Arizona's farm labor statute to be justiciable despite the state's claim that the provision had not been and might never be applied. The Court held that the plaintiffs were not without some reason in fearing prosecution given that the statute could apply to conduct in which they intended to engage and the fact that the state had not disavowed any intention of invoking the provision. Id. The Court stated:

A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. But "[o]ne does not have to await the consummation of threatened injury to obtain preventative relief. If the injury is certainly impending, that is enough. [Citations omitted.]

When a plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188, 93 S. Ct. 739, 745, 35 L. Ed. 2d 201 (1973). But "persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs." Younger v. Harris, 401 U.S.