Saturday, April 25, 2015

Defining the Indefinable: Crimes of Moral Turpitude

Guest Blogger: Kelsey Quist, third year law student, University of San Francisco

The phrase “moral turpitude” may seem like an outdated term, however, it is alive and well in the immigration world. Although its origin dates back hundreds of years, the phrase has never been explicitly defined. And yet, to be convicted of a crime of moral turpitude carries extremely grave consequences. Under the Immigration and Nationality Act, “an alien convicted of a crime of moral turpitude is deportable when the potential term of imprisonment is one year or longer, and the offense was committed within five years of the alien’s admission to the United States, or within ten years of admission if the alien was granted lawful permanent resident status.” Additionally, “any alien that has committed two or more crimes involving moral turpitude (or “CIMTs”) is deportable if the offenses do not arise out of a single scheme of conduct.” What then does it mean to be convicted of a crime of moral turpitude? And why should such a conviction carry so much weight in a culture that has increasingly distanced itself from inflicting morality on its residents?

The reality is, there is no direct answer to these questions. Our courts are still defining what it means to be categorized as a crime of moral turpitude and whether certain questionable conduct should be considered in light of the surrounding circumstances, or simply measured against the language of the statute. Some of the offenses that have been considered within the realm of moral turpitude have included: murder, voluntary manslaughter, kidnapping, mayhem, rape, fraud, spousal abuse, child abuse, incest, assault with intent to commit another specific intent offense, aggravated assaults, assaults on vulnerable classes, lewd and lascivious conduct toward a child, knowing possession of child pornography, driving under the influence without a license, theft, robbery, receiving stolen goods with guilty knowledge, forgery, embezzlement, extortion, perjury, and willful tax evasion. The list seems pretty exhaustive. Still, offenses that may fall outside the realm of moral turpitude have included: simple assault, unlawful entry, damaging private property, escape, possession of an altered or fraudulent document, and indecent exposure. So where does the Legislature draw the line? While it seems obvious that certain offenses are “immoral” or “corrupt” - such as murder, kidnapping, or rape - it is less clear when it comes to offenses such as petty theft, or false use of a social security number, which may have been committed out of necessity or desperation. Even within the long list of offenses above there exists a varying degree of depravity, some of which warrant long periods of imprisonment, others which merely impose a fine. This only adds to the complexity of the definition of moral turpitude.

Nevertheless, in a society where our moral standards are ever-changing, we use morality as a foundation for deportation. Several hundred years ago, abortion was considered a crime and women were prosecuted and some even faced the death penalty. Now, under Obamacare, birth control is free. Sixty years ago, our society would not have thought possible the recognition of same sex marriages, and yet today it is hard to imagine a world without this acceptance. It seems misguided and inherently unfair to subject immigrants to our constantly evolving standards of decency when we as a society have trouble defining them. Perhaps if we were still living in the time of the Ten Commandments, the application of this category would be clear-cut and straightforward. But we cannot sum up our country’s morals in ten simple rules. Even if we could, these rules would be in constant flux as time goes on. As a result, our courts are left with the task of determining what constitutes moral turpitude – and inevitably, it becomes an extremely subjective analysis.

So where do we go from here? While I am not suggesting that we completely abolish laws based on an evaluation of our society’s morals, I do think we need to reevaluate their applicability in modern times. From a due process standpoint, it is impossible to put immigrants on notice that certain “morally reprehensible” conduct is grounds for deportation when such conduct is not unanimously held to be immoral. Since the phrase “moral turpitude” has been around for over 100 years, there have been various conflicting definitions that have developed over time, ranging from that of  “vile, based, and depraved” to “dishonest and deceitful.” Since our courts seem to be at odds with which definition they employ, our Legislature needs to step in and explicitly define the phrase, so as to provide some direction for our judicial system. Most importantly, the definition of moral turpitude should accurately reflect the time in which we live – not an ancient representation of good versus evil.  

bh

https://lawprofessors.typepad.com/immigration/2015/04/defining-the-indefinable-crimes-of-moral-turpitude.html

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