69 Pages Posted: 13 Jul 2011 Last revised: 11 Jan 2013
Date Written: July 12, 2011
Moral turpitude is a legal standard used in areas of American law as diverse as torts, immigration, professional licensing, and evidence. Although the standard has a profound effect on a wide array of privileges, entitlements, and liabilities, scholars have devoted scant attention to it. The few who have studied it have echoed the courts in arguing that the standard is vague. This Article argues, in contrast, that the problem with moral turpitude is that it has too much meaning, not too little. Moral turpitude imports into our legal system an outdated nineteenth century honor code that reflects republican virtues: oath and promise keeping, honest business practices, hard work and productivity for men, and sexual purity for women. It ignores certain violent behavior while condemning petty property crimes. Those norms are no longer uncontroversial and unquestioned. Moral turpitude continues to retain its original valence because courts are uncomfortable with a legal standard that requires that they use the rhetoric of morals to write opinions based on social beliefs. Courts have instead long reached for proxies for moral turpitude in order to eschew a moral analysis. Rather than taking the standard at face value and determining whether a crime is especially “base, vile, or depraved,” courts today make moral turpitude determinations by looking at whether the crime falls into particular, historically-informed categories, and if not, whether it involves an element of scienter. That approach fails along dimensions ranging from efficiency to transparency to substantive fairness. More broadly, this Article shows that using morality as an overt legal standard may have the perverse effects of clouding moral decision making and of ossifying outmoded values.
Keywords: immigration, defamation, criminal law, evidence, legal history, law and society
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