Academic journal article Albany Law Review

Should Misprision of a Felony Be Considered a Crime Involving Moral Turpitude?

Academic journal article Albany Law Review

Should Misprision of a Felony Be Considered a Crime Involving Moral Turpitude?

Article excerpt

INTRODUCTION

Misprision of a felony criminalizes having knowledge of a felony and concealing it. Currently there is a split between the Board of Immigration Appeals ("BIA") and the federal circuit courts, and between the circuits themselves, as to whether the crime involves moral turpitude. (1) While there are relatively few convictions for misprision of a felony, (2) it is important to examine this circuit split because it demonstrates the current lack of uniformity in our immigration system.

To analyze this split, this note first summarizes the history of misprision of a felony and the interpretation of its elements in case law. Part I discusses the definition of moral turpitude in immigration law and current approaches to determining whether a crime involves moral turpitude. Part II discusses the BIA's and Fifth, Ninth and Eleventh Circuits' decisions regarding whether misprision is a crime involving moral turpitude ("CIMT"), including the latest BIA decision, which came down in February 2018. Part III discusses common divisions between the two camps, including: (1) whether fraud can be read into the statute; (2) whether misprision has the requisite degree of scienter to be a CIMT; and (3) whether an "absurd result" result exists when misprision of a felony is a CIMT, but the underlying felony is not.

Ultimately, like accessory, misprision of a felony should not be considered a CIMT when the underlying felony is not. While deportation is not considered to be part of criminal sentencing, in practice it is an added punishment. To have a noncitizen be deported for misprision when the perpetrator of the underlying felony is not is fundamentally unfair and should not be tolerated in our immigration system.

I. BACKGROUND LAW

A. Misprision of a Felony

Misprision of a felony is a crime that has its roots in English common law. (3) Sir William Staunford in 1557 defined the crime as "when anyone learns or knows that another has committed treason or felony, and he does not choose to denounce him to the King or to his Council." (4) As the State was not actively involved in policing its citizens at the time, the individual was charged with an affirmative duty to report criminal activity to the authorities. (5) If a citizen witnessed a felony, a mortal wounding, or found a corpse and did not report such incidents to the State, he had run afoul of his duty to raise "the 'hue and cry"' that a crime was committed. (6) Mere knowledge of the criminal behavior was enough to secure a conviction for common law misprision of a felony. (7) Only a partial disclosure of the facts of a criminal offense would also result in a conviction. (8)

Privilege was the only defense to common law misprision, such as attorney-client privilege and physician-patient privilege. (9) However, privilege would not apply when the accused gave misinformation to the authorities "because lying was considered an affirmative act of concealment." (10) By the mid-1800s in England, there were so few misprision prosecutions that the crime was considered to be obsolete, and it was eventually repealed in 1967. (11)

While prosecutions of misprision waned in England, (12) the first United States Congress codified the crime in 1790. (13) Federal misprision of a felony is currently defined as:

Whoever, having knowledge of the actual commission of a felony
cognizable by a court of the United States, conceals and does not as
soon as possible make known the same to some judge or other person in
civil or military authority under the United States, shall be fined
under this title or imprisoned not more than three years, or both. (14)

Federal misprision of a felony is a vestige of this common law "duty to raise the hue and cry." (15) To ignore this affirmative duty to report remains "a badge of irresponsible citizenship." (16) Unlike the common law crime, knowledge that criminal activity has occurred does not constitute misprision of a felony. …

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