Criminal Defense of Immigrants


§ 20.16 g. Malice

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The mental state of malice is often considered to constitute a crime of moral turpitude.  In relatively minor offenses, however, the malice requirement may not be sufficient to render the offense to be one involving moral turpitude.  The Ninth Circuit in a malicious mischief case rejected the government’s argument that if a statute requires an “evil intent, wish, or design to vex, annoy, or injure another person,” then the crime necessarily involves moral turpitude.[93]  The court found that “malice” does not always evidence evil intent because:


Here, for example, the Washington statute permits malice (which imports an evil intent) to “be inferred from an act done in willful disregard of the rights of another, or an act wrongfully done without just cause or excuse, or an act or omission of duty betraying a willful disregard of social duty.” RCW § 9A.04.110(12). Under this definition, evil intent may become much too attenuated to imbue the crime with the character of fraud or depravity that we have associated with moral turpitude.[94]


Counsel should examine the definition of “malice” in the jurisdiction in which the conviction occurred to determine whether there is an argument that malicious crimes do not necessarily involve moral turpitude.


[93] Rodriguez-Herrera v. INS, 52 F.3d 238, 240 (9th Cir. 1995).

[94] Ibid.



First Circuit

Da Silva Neto v. Holder, 680 F.3d 25 (1st Cir. May 10, 2012) (Massachusetts conviction of malicious destruction of property, under Mass. Gen. Laws ch. 266, section 127, is a crime involving moral turpitude; Mass. definition of malicious requires "a state of mind infused with cruelty, hostility, or revenge."), distinguishing Rodriguez"Herrera v. INS, 52 F.3d 238 (9th Cir.1995) (malicious intent in Washington State may be inferred if merely wrongfully done and can include mere pranksters).

Ninth Circuit

United States v. Kelly, 676 F.3d 912, 918 (9th Cir. Apr. 13, 2012) ([I]t is malicious to intend to do what constitutes the actus reus of the crime in question. Id. Nevertheless, the common-law definition of malice clearly recognized the non-necessity of any element of hatred, spite, grudge, or ill-will. Perkins & Boyce, Criminal Law 857; see also In re Bammer, 131 F.3d at 791 (Malice does not require a showing of biblical malice, i.e., personal hatred, spite, or illwill.); 4 Charles E. Torcia, Whartons Criminal Law 470 (15th ed. 2011) ([M]alice in the traditional legal sense does not require that the defendant harbor ill will toward the [property] owner. (footnote omitted)); 3 id. 337 ([M]alice in a literal sense is not required; a defendant may act maliciously even though he harbors no malevolence or ill-will toward the owner or occupant.). It was sufficient that the defendant (1) had the intent to do the prohibited act and (2) had no justification or excuse.). Note: Kelly supports arguments that offenses with malice as an essential mental element are not crimes involving moral turpitude, because malice is not a worse mens rea than merely an intentional illegal act done without justification. Therefore malicious mischief and similar offenses do not require a particularly evil intent. The lack of evil intent and moral turpitude in such malicious property destruction is underlined by the fact that Kelly involved mostly symbolic property damage done as an act of civil disobedience by longtime peace and disarmament activists. Two are Catholic priests, and one is an eighty-year old Catholic nun. Two others are grandmothers. Kelly, at 914. Thanks to Jonathan Moore.