Thursday, August 4, 2011

Immigration Article of the Day: Moral Turpitude: A Standard in Search of a Doctrine" by JULIA ANN SIMON-KERR

"Moral Turpitude: A Standard in Search of a Doctrine" by JULIA ANN SIMON-KERR, The University of Chicago Law School. ABSTRACT: lAs a legal standard, moral turpitude explicitly assumes the existence of a moral consensus that can be discerned by judges and given force in particular legal contexts. Today, it is most frequently used to classify crimes in order to determine whether a collateral sanction, such as deportation, should be imposed. In order to determine whether a crime involves moral turpitude, courts look for grave infringement of the moral sentiment of the community. The few scholars to examine the standard have argued that this amorphous inquiry in immigration law is unconstitutionally vague. This Article contends that the most powerful critique of the standard is not its vagueness, but its origins in an honor code that identified certain norms, among them integrity in business dealings and sexual purity, as critical to a good reputation and essential to civic virtue. Those norms guided courts' use of the standard, but from its first application in the common law of slander, courts sought to devise a moral turpitude test that could resolve borderline cases. The result mixed older common law doctrines, such as malum in se, with conclusory moral statements. That very fluidity of application coupled with its implicit reference to honor norms made moral turpitude attractive to legislatures seeking to maintain a certain social order. In the span of a decade at the end of the nineteenth century, moral turpitude was codified as a standard for exclusion in federal immigration law and voter disenfranchisement in certain states in the post-Reconstruction south. Moral turpitude was also used for a time in evidence law as a standard for impeachment, but in that context many courts eventually rejected the standard, and the federal rules of evidence did not include it. For the federal courts, however, abandoning a statutorily-mandated standard in immigration law has not been an option. They have responded by adopting a rule-based approach that purports to ignore the facts underlying particular convictions and to eschew moral reasoning, focusing instead on whether corrupt scienter is a necessary element of the crime. That abstracted approach, while more efficient and arguably less susceptible of bias, has created a technical body of doctrine that is not transparent and does not prevent inconsistent outcomes based on the extralegal moral intuitions of particular judges.


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