Criminal Law

Criminal Law

1. Criminal Defense

In the field of criminal law there are a variety of conditions that will tend to negate elements of a crime (particularly the intent element), known as defenses. The label may be apt in jurisdictions where the accused may be assigned some burden before a tribunal. However, in many jurisdictions, the entire burden to prove a crime is on the government, which also must prove the absence of these defenses, where implicated. In other words, in many jurisdictions the absence of these so-called defenses is treated as an element of the crime. So-called defenses may provide partial or total refuge from punishment.


2. Criminal Law

Criminal law, also termed as Penal law, encompasses the rules and statutes written by Congress and state legislators dealing with any criminal activity that causes harm to the general public, with penalties. It also covers criminal procedure connected with charging, trying, sentencing and imprisoning defendants convicted of crimes. It regulates how suspects are investigated, charged and tried. Criminal law also includes decisions by appellate courts that define and interpret criminal law and regulate criminal procedure, in the absence of clear legislated rules. In order to be found guilty of violating a criminal law, the prosecution must show that the defendant intended to act as he/she did. In other words, there had to be intention (Mens rea). Criminal law is typically enforced by the government. The state, through a prosecutor, initiates the suit. Criminal law encompasses Substantive Criminal law; Criminal Procedure; and the special problems in administration and enforcement of criminal justice.


3. Relationship between Criminal Law and Immigration Deportation

A judicial order of deportation can be requested only if the offense for which the alien will be sentenced renders such alien deportable on one or more of the following grounds:

  • Crime of Moral Turpitude

The alien must be convicted of a crime involving moral turpitude committed within five years after the date of entry, and sentenced to confinement or confined therefor for one year or longer. Although the conviction must occur within five years of entry, any entry into the United States may be used to support the charge of deportability.

The term “involving moral turpitude” is difficult to define with precision. However, a challenge to this designation as being unconstitutionally vague has been rejected.

Administrative case law has characterized moral turpitude as “a nebulous concept, which refers generally to conduct that shocks the public conscience.” Obviously, offenses such as murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults involve moral turpitude. However, assaults not involving dangerous weapons or evil intent have been held not to involve moral turpitude. Conspiracy, attempt, or being an accessory involves moral turpitude if the underlying offense involves moral turpitude. There is administrative and judicial case law holding that any crime having as an element the intent to defraud is a crime involving moral turpitude.

A sentence of confinement of one year or more is sufficient even if the sentence is entirely suspended. However, a single crime of moral turpitude in which a sentence of less than one year is imposed would not be a ground for deportation, but the same offense might provide a basis for deportability as an aggravated felony.