Circuit Judges Define Moral Turpitude

Justin Scheck
The Recorder
September 14, 2007 Critics pan the 9th U.S. Circuit Court of Appeals for any number of reasons, from its size to its politics, but if there's one thing above reproach, it's the court's nuanced view of moral turpitude. The court has been known to engage in long, esoteric debates on what Merriam-Webster defines as "inherent baseness" or "depravity." On Wednesday, the evolving definition settled here: Drunken driving isn't turpitude. Drunken driving without a license is. That's the stark message resident aliens will have to keep in mind, because moral turpitude is grounds for deportation. Writing for the majority in Marmolejo-Campos v. Gonzales, 07 C.D.O.S. 10982, Judge Consuelo Callahan found that, when combined, the two factors sink to the level of turpitude. "Driving while intoxicated is despicable, and when coupled with the knowledge that one has been specifically forbidden to drive, it becomes 'an act of baseness, violence or depravity in the private and social duties which a person shows to a fellowman or to society in general, contrary to the accepted and customary rule of right and duty,'" Callahan wrote, referring to a U.S. Supreme Court definition of turpitude. She was joined by Senior Judge Cormac Carney of the Central District of California, who was sitting by designation. Senior Judge Dorothy Nelson disagreed, with vehemence, going so far as to accuse her colleagues of sophistry. She said that despite the fact that the definition of turpitude is "nebulous," it's clear to her that driving drunk without a license doesn't qualify. "It is well settled that driving while intoxicated is not a morally turpitudinous act," she wrote. "Nonetheless, the majority concludes that Campos's act of drunk driving was transformed into a turpitudinous offense because he was not legally licensed to drive." Nelson pointed out that certain crimes -- such as fraud, murder and child abuse -- always entail turpitude. "On the other hand," she continued, "burglary, assault and battery, malicious mischief, alien smuggling, assault with a deadly weapon, indecency, rioting, and money laundering have all been found not to involve moral turpitude." In the case of Armando Marmolejo-Campos -- who had a history of drunken-driving offenses preceding the one at issue -- Nelson said the most serious of his offenses was driving while drunk. And since the 9th Circuit has previously ruled that multiple instances of intoxicated motoring didn't amount to turpitude, the less serious violation of driving without a license shouldn't change the depravity level of the crime. "In sum," she concluded, "while I certainly recognize that driving while intoxicated can have serious and harmful consequences, I am unable to concur in an opinion that contravenes well-established law and is belied by logic." For its vocal dissent and majority opinion that includes a non-circuit judge, the Marmolejo-Campos case could be ripe for en banc review. If so, it would be the second time in the last year that an expanded panel has taken on questions of turpitude: In December, an en banc panel heard arguments on whether being an accessory to a crime involves turpitude after a three-judge panel had split on the issue. The judges haven't ruled on that case yet.