Jordan v. De George/Dissent Jackson

by Robert H. Jackson

United States Supreme Court

341 U.S. 223

Jordan  v.  De George

 Argued: March 5, 1951. --- Decided: May 7, 1951

Mr. Justice JACKSON, dissenting.

Respondent, because he is an alien, and because he has been twice convicted of crimes the Court holds involve 'moral turpitude,' is punished with a life sentence of banishment in addition to the punishment which a citizen would suffer for the identical acts. Mr. Justice BLACK, Mr. Justice FRANKFURTER and I cannot agree, because we believe the phrase 'crime involving moral turpitude,' as found in the Immigration Act, ^[1] has no sufficiently definite meaning to be a constitutional standard for deportation.

Respondent migrated to this country from his native Italy in 1921 at the age of seventeen. Here he has lived twenty-nine years, is married to an American citizen, and his son, citizen by birth, is now a university student. In May, 1938, he pleaded guilty to a charge of conspiracy to violate the Internal Revenue Code ^[2] and was sentenced to imprisonment for one year and one day. On June 6, 1941, he was convicted of a second violation and sentenced to imprisonment for two years. During the decade since, he has not been arrested or charged with any law violation. While still in prison, however, deportation proceedings were instituted against him, resulting in 1946, in a warrant for arrest and deportation.

By habeas corpus proceedings, De George challenged the deportation order upon the ground that his is not a crime 'involving moral turpitude.' The District Court thought it did and dismissed the writ. The Court of Appeals for the Seventh Circuit thought it did not and reversed. ^[3] There is a conflict among the circuits. ^[4]

What the Government seeks, and what the Court cannot give, is a basic definition of 'moral turpitude' to guide administrators and lower courts.

The uncertainties of this statute do not originate in contrariety of judicial opinion. Congress knowingly conceived it in confusion. During the hearings of the House Committee on Immigration, out of which eventually came the Act of 1917 in controversy, clear warning of its deficiencies was sounded and never denied.

'Mr. Sabath * * * (Y)ou know that a crime involving moral turpitude has not been defined. No one can really say what is meant by saying a crime involving moral turpitude. Under some circumstances, larceny is considered a crime involving moral turpitude-that is, stealing. We have laws in some States under which picking out a chunk of coal on a railroad track is considered larceny or stealing. In some States it is considered a felony. Some States hold that every felony is a crime involving moral turpitude. In some places the stealing of a watermelon or a chicken is larceny. In some States the amount is not stated. Of course, if the larceny is of an article, or a thing which is less than $20 in value, it is a misdemeanor in some States, but in other States there is no distinction.' ^[5]

Despite this notice, Congress did not see fit to state what meaning it attributes to the phrase 'crime involving moral turpitude.' It is not one which has settled significance from being words of art in the profession. If we go to the dictionaries, the last resort of the baffled judge, we learn little except that the expression is redundant, for turpitude alone means moral wickedness or depravity ^[6] and moral turpitude seems to mean little more than morally immoral. ^[7] The Government confesses that it is 'a term that is not clearly defined,' and says: 'The various definitions of moral turpitude provide no exact test by which we can classify the specific offenses here involved.'

Except for the Court's opinion, there appears to be universal recognition that we have here an undefined and undefinable standard. The parties agree that the phrase is ambiguous and have proposed a variety of tests to reduce the abstract provision of this statute to some concrete meaning.

It is proposed by respondent, with strong support in legislative history, that Congress had in mind only crimes of violence. ^[8] If the Court should adopt this construction, the statute becomes sufficiently definite, and, of course, would not reach the crimes of the respondent.

The Government suggests seriousness of the crime as a test and says the statute is one by which it is 'sought to reach the confirmed criminal, whose criminality has been revealed in two serious penal offenses.' (Italics supplied.) But we cannot, and the Court does not, take seriousness as a test of turpitude. All offenses denounced by Congress, prosecuted by the Executive, and convicted by the courts, must be deemed in some degree 'serious' or law enforcement would be a frivolous enterprise. However, use of qualifying words must mean that not all statutory offenses are subject to the taint of turpitude. The higher degrees of criminal gravity are commonly classified as felonies, the lower ones as misdemeanors. If the Act contemplated that repetition of any serious crime would be grounds for deportation, it would have been simple and intelligible to have mentioned felonies. But the language used indicates that there are felonies which are not included and perhaps that some misdemeanors are. We cannot see that seriousness affords any standard of guidance.

Respondent suggests here, and the Government has on other occasions taken the position, that the traditional distinction between crimes mala prohibita and those mala in se will afford a key for the inclusions and exclusions of this statute. ^[9] But we cannot overlook that what crimes belong in which category has been the subject of controversy for years. ^[10] This classification comes to us from common law, which in its early history freely blended religious conceptions of sin with legal conceptions of crime. This statute seems to revert to that practice.

The Government, however, offers the mala prohibita, mala in se doctrine here in slightly different verbiage for determining the nature of these crimes. It says: 'Essentially, they must be measured against the moral standards that prevail in contemporary society to determine whether the violations are generally considered essentially immoral.'

Can we accept 'the moral standards that prevail in contemporary society' as a sufficiently definite standard for the purposes of the Act? This is a large country and acts that are regarded as criminal in some states are lawful in others. We suspect that moral standards which prevail as to possession or sale of liquor that has evaded tax may not be uniform in all parts of the country, nor in all levels of 'contemporary society.' How should we ascertain the moral sentiments of masses of persons on any better basis than a guess? ^[11]

The Court seems no more convinced than are we by the Government's attempts to reduce these nebulous abstractions to a concrete working rule, but to sustain this particular deportation it improvises another which fails to convince us. Its thesis is (1) that the statute is sixty years old, (2) that state courts have used the same concept for various purposes, and (3) that fraud imports turpitude into any offense.

1. It is something less than accurate to imply that in any sense relevant to this issue this phrase has been 'part of the immigration laws for more than sixty years.' ^[12]

But, in any event, venerability of a vague phrase may be an argument for its validity when the passing years have by administration practice or judicial construction served to make it clear as a word of legal art. To be sure, the phrase in its present context has been on the statute books since 1917. It has never before been in issue before this Court. Reliance today on United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, is unwarranted. There the Court assumed without analysis or discussion a proposition not seriously relied on. There have, however, been something like fifty cases in lower courts which applied this phrase. No one can read this body of opinions and feel that its application represents a satisfying, rational process. If any consistent pattern of application or consensus of meaning could be distilled from judicial decision, neither the Government nor the Court spells it out. Irrationality is inherent in the task of translating the religious and ethical connotations of the phrase into legal decisions. The lower court cases seem to rest, as we feel this Court's decision does, upon the moral reactions of particular judges to particular offenses. What is striking about the opinions in these 'moral turpitude' cases is the wearisome repetition of cliche § attempting to define 'moral turpitude,' usually a quotation from Bouvier. But the guiding line seems to have no relation to the result reached. The chief impression from the cases is the caprice of the judgments. ^[13] How many aliens have been deported who would not have been had some other judge heard their cases, and vice versa, we may only guess. That is not government by law.

2. The use of the phrase by state courts for various civil proceedings affords no teaching for federal courts. The Federal Government has no common-law crimes and the judges are not permitted to define crimes by decision, for they rest solely in statute. ^[14] Nor are we persuaded that the state courts have been able to divest the phrase of its inherent ambiguities and vagueness.

3. The Court concludes that fraud is 'a contaminating component in any crime' and imports 'moral turpitude.' The fraud involved here is nonpayment of a tax. The alien possessed and apparently trafficked in liquor without paying the Government its tax. That, of course, is a fraud on the revenues. But those who deplore the traffic regard it as much an exhibition of moral turpitude for the Government to share its revenues as for respondents to withhold them. Those others who enjoy the traffic are not notable for scruples as to whether liquor has a law-abiding pedigree. So far as this offense is concerned with whiskey, it is not particularly un-American, and we see no reason to strain to make the penalty for the same act so much more severe in the case of an alien 'bootlegger' than it is in the case of a native 'moonshiner.' I have never discovered that disregard of the Nation's liquor taxes excluded a citizen from our best society and I see no reason why it should banish an alien from our worst.

But it is said he has cheated the revenues and the total is computed in high figures. If 'moral turpitude' depends on the amount involved, respondent is probably entitled to a place in its higher brackets. Whether by popular test the magnitude of the fraud would be an extenuating or an aggravating circumstance, we do not know. We would suppose the basic morality of a fraud on the revenues would be the same for petty as for great cheats. But we are not aware of any keen sentiment of revulsion against one who is a little niggardly on a customs declaration or who evades a sales tax, a local cigarette tax, or fails to keep his account square with a parking meter. But perhaps what shocks is not the offense so much as a conviction.

We should not forget that criminality is one thing-a matter of law-and that morality, ethics and religious teachings are another. Their relations have puzzled the best of men. Assassination, for example, whose criminality no one doubts, has been the subject of serious debate as to its morality. ^[15] This does not make crime less criminal, but it shows on what treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case. We usually end up by condemning all that we personally disapprove and for no better reason than that we disapprove it. In fact, what better reason is there? Uniformity and equal protection of the law can come only from a statutory definition of fairly stable and confined bounds.

A different question might be before us had Congress indicated that the determination by the Board of Immigration Appeals that a crime involves 'moral turpitude' should be given the weight usually attributed to administrative determinations. But that is not the case, nor have the courts so interpreted the statute. In the fifty-odd cases examined, no weight was attached to the decision of that question by the Board, the court in each case making its own independent analysis and conclusion. Apparently, Congress expected the courts to determine the various crimes includable in this vague phrase. ^[16] We think that not a judicial function.

A resident alien is entitled to due process of law. ^[17] We have said that deportation is equivalent to banishment or exile. ^[18] Deportation proceedings technically are not criminal; but practically they are for they extend the criminal process of sentencing to include on the same convictions an additional punishment of deportation. If respondent were a citizen, his aggregate sentences of three years and a day would have been served long since and his punishment ended. But because of his alienage, he is about to begin a life sentence of exile from what has become home, of separation from his established means of livelihood for himself and his family of American citizens. This is a savage penalty and we believe due process of law requires standards for imposing it as definite and certain as those for conviction of crime.

Strangely enough, the Court does not even pay the tribute of a citation to its recent decision in Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 92 L.Ed. 562, where a majority joined in vacating and remanding a decision which had sustained convictions under a Utah statute which made criminal a conspiracy 'to commit acts injurious to public morals'. We said of that statute: 'Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order.' 333 U.S. at 97, 68 S.Ct. at page 398. For my part, I am unable to rationalize why 'acts injurious to public morals' is vague if 'moral turpitude' is not. And on remand, the Supreme Court of Utah said: 'We are * * * unable to place a construction on these words which limits their meaning beyond their general meaning.' State v. Musser, 1950, Utah, 223 P.2d 193, 194.

In Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, the Court directly struck down for indefiniteness a statute sixty years on the statute books of New York and indirectly like statutes long on the books of half the States of the Union. ^[19] The New York statute made a person guilty of a misdemeanor who in any way distributes 'any book, pamphlet, magazine, newspaper or other printed paper devoted to the publication, and principally made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime; * * *.' 333 U.S. at 508, 68 S.Ct. at page 666. That statute was certainly no more vague than the one before us now and had not caused even a fraction of the judicial conflict that 'moral turpitude' has.

In Winters v. New York, supra, the Court rested heavily on Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, in which this Court found unconstitutional indefiniteness in a statute calling for 'the current rate of per diem wages in the locality' where contractors were doing government work. (The sanction of the statute was a relatively small money fine, or a maximum of six months, though of course a corporate violator could only be subjected to the fine.) The test by which vagueness was to be determined according to the Connally case was that legislation uses terms 'so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *.' 269 U.S. at 391, 46 S.Ct. at page 127. It would seem to be difficult to find a more striking instance than we have here of such a phrase since it requires even judges to guess and permits them to differ.

We do not disagree with a policy of extreme reluctance to adjudge a congressional Act unconstitutional. But we do not here question the power of Congress to define deportable conduct. We only question the power of administrative officers and courts to decree deportation until Congress has given an intelligible definition of deportable conduct.

Notes

1. Section 19(a) of the Immigration Act of February 5, 1917, 39 Stat. 889, as amended, 8 U.S.C. § 155(a), 8 U.S.C.A. § 155(a).
2. 26 U.S.C. § 3321, 26 U.S.C.A. § 3321, 53 Stat. 401.
3. 183 F.2d 768.
4. United States ex rel. Berlandi v. Reimer, 2 Cir., 113 F.2d 429, and Maita v. Haff, 116 F.2d 337, 9 Cir., hold this crime involves moral turpitude. Cf. Guarneri v. Kessler, 5 Cir., 98 F.2d 580, certiorari denied, 305 U.S. 648, 59 S.Ct. 229, 83 L.Ed. 419.
5. Hearings before House Committee on Immigration and Naturalization on H.R. 10384, 64th Cong., 1st Sess. 8.
6. Black's Law Dictionary defines turpitude as: '(I)nherent baseness or vileness of principle or action; shameful wickedness; depravity.' An example of its use alone to signify immorality may be taken from Macaulay, whose most bitter critics would admit he was a master of the English word. 'The artists corrupted the spectators, and the spectators the artists, till the turpitude of the drama became such as must astonish all who are not aware that extreme relaxation is the natural effect of extreme restraint.' History of England, Vol. I (1849 ed.), p. 374.
7. Bouvier's Law Dictionary, Rawles Third Revision, p. 2247, defines 'moral turpitude' as 'an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.'
8. 'Mr. Woods * * * I would make provisions to get rid of an alien in this country who comes here and commits felonies and burglaries, holds you up on the streets, and commits crimes against our daughters, because we do not want that kind of alien here, and they have no right to be here. * * * The rule is that if we get a man in this country who has not become a citizen, who knocks down people in the street, who murders or who attempts to murder people, who burglarizes our houses with blackjack and revolver, who attacks our women in the city, those people should not be here. * * *' Hearings before House Committee on Immigration and Naturalization on H.R.10384, 64th Cong., 1st Sess. 14. Mr. Woods was not an ordinary witness. As the then Police Commissioner of New York City, his testimony appears to have been most influential in this provision of the 1917 Act.
9. In Volume II of Administrative Decisions under Immigration and Nationality Laws of the United States, p. 141, there is an administrative interpretation by the Department then having the administration of the Act. In an opinion on a deportation proceeding decided by the Board June 26, 1944, and approved by the Attorney General July 12, 1944, the statement was quoted with approval:
10. Crimes mala in se, according to Blackstone, are offenses against '(t)hose rights then which God and nature have established, and are therefore called natural rights such as are life and liberty, * * * the worship of God, the maintenance of children, and the like.' They are 'crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se (crimes in themselves), such as murder, theft, and perjury: which contract no additional turpitude from being declared unlawful by the inferior legislature.' According to Blackstone, crimes mala prohibita 'enjoin only positive duties, and forbid only such things as are not mala in se * * * without any intermixture of moral guilt.' Illustrative of this type of crime are 'exercising trades without serving an apprenticeship thereto, for not burying the dead in woollen, for not performing the statutework on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin: the only obligation in conscience is to submit to the penalty, if levied.' and his conscience will be clear, which ever side of the alternative he thinks proper to embrace.' Cooley's Blackstone, Vol. I (4th ed.), pp. *54, *58. Of this, J.W.C. Turner says: 'Some of the weak points in this doctrine were detected by an early editor of Blackstone, and in modern times it is generally regarded as quite discredited.' The Modern Approach to Criminal Law 221. And cf. United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604.
11. As Judge Learned Hand put it, in attempting to resolve a similar conflict: 'Even though we could take a poll, it would not be enough merely to count heads, without any appraisal of the voters. A majority of the votes of those in prisons and brothels, for instance, ought scarcely to outweigh the votes of accredited churchgoers. Nor can we see any reason to suppose that the opinion of clergymen would be a more reliable estimate than our own.' Schmidt v. United States, 2 Cir., 177 F.2d 450, 451.
12. We are construing the Act of 1917 and not the earlier Immigration Acts, those of March 3, 1891, 26 Stat. 1084; March 3, 1903, 32 Stat. 1213; February 20, 1907, 34 Stat. 898. All of these prior statutes allowed deportation for conviction for every felony or crime, which meant for conviction of every crime involving a sentence of not less than a year. It then added another deportable category, to wit, misdemeanors involving moral turpitude. In addition to all crimes involving a sentence of a year or more, the earlier Acts carved out a small category of petty offenses, when they were of a kind 'involving moral turpitude,' i.e., offenses even though carrying a small sentence having a manifestation of intrinsic badness. But that creates a very different problem from requiring us to discriminate among all offenses, felonies and misdemeanors on the basis of intrinsic badness.
13. How unguiding the guide 'moral turpitude' is in relation to the enforcement of the Act of 1917, can be shown by three pairs of cases:
14. Viereck v. United States, 318 U.S. 236, 241, 63 S.Ct. 561, 563, 87 L.Ed. 734.
15. John Stuart Mill, referring to the morality of assassination of political usurpers, passed by examination of the subject of Tyrannicide, as follows: 'I shall content myself with saying that the subject has been at all times one of the open questions of morals; that the act of a private citizen in striking down a criminal, who, by raising himself above the law, has placed himself beyond the reach of legal punishment or control, has been accounted by whole nations, and by some of the best and wisest of men, not a crime, but an act of exalted virtue; and that, right or wrong, it is not in the nature of assassination, but of civil war.' Mill, On Liberty and Considerations on Representative Government, p. 14, n. 1.
16. However, a statement by the Chairman of the Committee on Immigration and Naturalization may suggest another explanation: 'My recollection is that the Supreme Court of the United States has determined what crimes are crimes involving moral turpitude under the Federal law, and if so, that would control, I should think.' Hearings before House Committee on Immigration and Naturalization on H.R.10384, 64th Cong., 1st Sess. 8.
17. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616.
18. Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433.
19. The Court's reference to the dissent in the Winters case would seem to make questionable its present force as an authority.