Note

The Right to Remain Protected: Upholding Youths’ Fifth Amendment Rights After Vega v. Tekoh

In June 2022, the Supreme Court held in Vega v. Tekoh that a failure to read a suspect their Miranda rights before questioning them does not provide a basis for a claim under 42 U.S.C. § 1983. Experts predict that this decision will disproportionately affect youth, who are more psychologically vulnerable to coercive interrogation tactics. However, no scholars have yet proposed any ways to mitigate this impact. This Note explores potential changes to Fifth Amendment doctrine that would safeguard youths’ ability to obtain a remedy following a Fifth Amendment violation. It explains that while the voluntariness test gives many youths hope of securing a remedy for a Miranda violation, the current voluntariness doctrine will not protect all youth whose un-Mirandized statements are admitted in court. Furthermore, while protecting youths’ Miranda rights is necessary, Miranda alone is not sufficient to uphold youths’ rights because youth struggle to understand Miranda warnings and waive Miranda at very high rates. In light of these issues, this Note proposes three changes to Fifth Amendment doctrine. First, courts should adopt a rule that statements made by youth in custody without a parent, guardian, or lawyer present are per se involuntary. Additionally, courts should hold that un-Mirandized statements by youths in custody are per se involuntary. Finally, courts should allow youths to bring a lawsuit under § 1983 for the admission of an un-Mirandized statement.

[S]ometimes, as a result [of an un-Mirandized statement being admitted], a [youth] will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? . . . [The Supreme Court’s interpretation of the Fifth Amendment in Vega v. Tekoh] injures the right by denying the remedy.1 1.Vega v. Tekoh, 142 S. Ct. 2095, 2111 (2022) (Kagan, J., dissenting) (citations omitted).Show More

Introduction

In June 2022, the Supreme Court held in Vega v. Tekoh that a failure to read a suspect their Miranda rights before questioning them does not provide a basis for a claim under 42 U.S.C. § 1983.2 2.Id. at 2099.Show More Several experts have indicated that this decision could have grave consequences for the future of the right against self-incrimination. For example, Gary Stuart, author of a 2004 book about Miranda rights,3 3.Gary L. Stuart, Miranda: The Story of America’s Right to Remain Silent (2004).Show More explained that the decision “will encourage that tiny minority of police officers . . . who abuse these rules routinely, who solve crimes by lying to suspects, by not telling suspects what their constitutional rights are.”4 4.Joe Dana, Arizona Miranda Rights Experts Weigh Significance of Supreme Court Decision, 12News (June 23, 2022, 6:42 PM), https://www.12news.com/article/news/local/‌arizona/Miranda-rights-experts-weigh-significance-of-us-supreme-court-decision/75-976b5c‌32-19f4-48b2-a97f-4a7035373f3a [https://perma.cc/C7CB-6QN9].Show More While defendants who go to trial can seek the suppression of statements made following a violation of their Miranda rights, “sometimes, such a statement will not be suppressed.”5 5.Vega, 142 S. Ct. at 2111 (Kagan, J., dissenting); see, e.g., B.A. v. State, 100 N.E.3d 225, 233–34 (Ind. 2018) (overturning a conviction due to a juvenile court failing to suppress a statement a thirteen-year-old student made after a school resource officer escorted him to the vice principal’s office, another officer encouraged the student to “just tell the truth” without giving him a Miranda warning, officers stayed between the student and the door at all times, no one told the student he was free to leave the room, and no one called the student’s parents until after the interview).Show More

Experts predict that Vega’s harm will have an “outsized impact[]” on youth.6 6.Tami Abdollah,‘You Have to Say the Magic Words.’ What the Supreme Court Ruling on Miranda Rights Means for You, USA Today (June 24, 2022, 7:31 AM), https://www.usa‌today.com/story/news/nation/2022/06/24/supreme-court-ruling-Miranda-weakens-civil-right‌s-activists-say/7716824001/ [https://perma.cc/R7LY-WY27].Show More When asked who is most at risk if police fail to give Miranda warnings, public defender Ilona Coleman responded, “It’s the young—so teenagers who we see . . . in many of our cases that come through the criminal justice system.”7 7.Shannon Bond, Supreme Court Says Police Can’t Be Sued for Not Reading Out Miranda Rights, NPR (July 3, 2022, 8:01 AM), https://www.npr.org/2022/07/03/1109607667/supreme‌-court-says-police-cant-be-sued-for-not-reading-out-Miranda-rights [https://perma.cc/G6DM‌-TDL9].Show More Given these potential consequences, it is essential for lawyers and judges to take action to protect youths’ rights against self-incrimination. This Note argues that courts should hold that a statement made by a youth in custody without a parent, guardian, or lawyer present or without Miranda warnings is per se involuntary and that youth have a cause of action under § 1983 for the admission of an un-Mirandized statement.8 8.For purposes of this Note, “youth” consists of people under eighteen years old.Show More

Although experts acknowledge that Vega is likely to impact youth disproportionately, no scholarly works have proposed any ways to mitigate this impact. This Note makes two primary contributions to the literature. First, this Note argues that statements made by youth in custody without a parent, guardian, or lawyer present or without Miranda warnings should be deemed per se involuntary. Professor Eve Brensike Primus has discussed the importance of the voluntariness test in upholding interrogation rights as the Supreme Court narrows Miranda’s protections,9 9.Eve Brensike Primus, The Future of Confession Law: Toward Rules for the Voluntariness Test, 114 Mich. L. Rev. 1, 10–11 (2015).Show More and Professor Hillary Farber has argued that states should adopt statutes requiring consultation with an attorney prior to an interrogation of a youth.10 10.Hillary B. Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe?, 41 Am. Crim. L. Rev. 1277, 1308–11 (2004).Show More However, this Note is the first to argue that courts should expand the voluntariness doctrine to require both the presence of a parent, guardian, or lawyer and Miranda warnings in order for youths’ statements to be deemed voluntary. Additionally, this Note contends that youth should have a § 1983 cause of action for the admission of an un-Mirandized statement even if adults do not. This argument is partially based on the notion that youths’ un-Mirandized statements should be deemed per se involuntary, which would necessitate the availability of a § 1983 cause of action. However, this Note explains that even if courts do not adopt the proposed expansion of the voluntariness doctrine, the balance-of-interests test used in Vega favors extending Miranda to allow youth to bring § 1983 claims for the admission of un-Mirandized statements.

This Note proceeds in five Parts. Part I discusses how it is especially important to protect youths’ rights during interrogations due to their psychological vulnerabilities and the profound harms they face when incarcerated. Part II explains youths’ rights during interrogations under the U.S. Constitution and how the holding in Vega v. Tekoh has limited the ability to vindicate those rights. Part III discusses how the current voluntariness doctrine can help to uphold youths’ interrogation rights after Vega. Part IV argues that courts should adopt rules that statements by youth in custody without a parent, guardian, or lawyer present or without Miranda warnings are per se involuntary. Finally, Part V explains why youth should be able to sue under § 1983 for the admission of an un-Mirandized statement even if adults cannot.

  1.  Vega v. Tekoh, 142 S. Ct. 2095, 2111 (2022) (Kagan, J., dissenting) (citations omitted). ↑
  2.  Id. at 2099. ↑
  3.  Gary L. Stuart, Miranda: The Story of America’s Right to Remain Silent (2004). ↑
  4.  Joe Dana, Arizona Miranda Rights Experts Weigh Significance of Supreme Court Decision, 12News (June 23, 2022, 6:42 PM), https://www.12news.com/article/news/local/‌arizona/Miranda-rights-experts-weigh-significance-of-us-supreme-court-decision/75-976b5c‌32-19f4-48b2-a97f-4a7035373f3a [https://perma.cc/C7CB-6QN9]. ↑
  5.  Vega, 142 S. Ct. at 2111 (Kagan, J., dissenting); see, e.g., B.A. v. State, 100 N.E.3d 225, 233–34 (Ind. 2018) (overturning a conviction due to a juvenile court failing to suppress a statement a thirteen-year-old student made after a school resource officer escorted him to the vice principal’s office, another officer encouraged the student to “just tell the truth” without giving him a Miranda warning, officers stayed between the student and the door at all times, no one told the student he was free to leave the room, and no one called the student’s parents until after the interview). ↑
  6.  Tami Abdollah, ‘You Have to Say the Magic Words.’ What the Supreme Court Ruling on Miranda Rights Means for You, USA Today (June 24, 2022, 7:31 AM), https://www.usa‌today.com/story/news/nation/2022/06/24/supreme-court-ruling-Miranda-weakens-civil-right‌s-activists-say/7716824001/ [https://perma.cc/R7LY-WY27]. ↑
  7.  Shannon Bond, Supreme Court Says Police Can’t Be Sued for Not Reading Out Miranda Rights, NPR (July 3, 2022, 8:01 AM), https://www.npr.org/2022/07/03/1109607667/supreme‌-court-says-police-cant-be-sued-for-not-reading-out-Miranda-rights [https://perma.cc/G6DM‌-TDL9]. ↑
  8.  For purposes of this Note, “youth” consists of people under eighteen years old. ↑
  9.  Eve Brensike Primus, The Future of Confession Law: Toward Rules for the Voluntariness Test, 114 Mich. L. Rev
    .

    1, 10–11 (2015). ↑

  10.  Hillary B. Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe?, 41 Am. Crim. L. Rev

    .

    1277, 1308–11 (2004). ↑

Making Section 1983 Malicious-Prosecution Suits Work

The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, but lack of proper focus. The Court first endeavored to identify the proper constitutional source of a malicious-prosecution right, all the while failing to consider the more practical problems that make Section 1983 malicious-prosecution claims nearly impossible to win.

The Court seemed to reverse its course in Thompson v. Clark, eschewing big constitutional questions in favor of a narrow, practical one. This Note applauds that turn in spirit. But it seems that the Court overcorrected by choosing too small of a question. This Note contributes the first postmortem of Thompson and finds that a year later, the lower courts look like nothing ever happened: almost every Section 1983 malicious-prosecution case since has been dismissed for reasons unrelated to Thompson’s favorable-termination rule.

What if instead of asking questions too big to be practically impactful, or too small to do much work on their own, we found the questions that are “just right”? This Note identifies these questions by analyzing remaining splits in the lower courts and where those splits overlap with the issues killing otherwise meritorious Section 1983 malicious-prosecution claims. By asking and answering the right questions, this Note constructs a version of Section 1983 malicious prosecution that could work in real life.

Introduction

How do you define a right if you aren’t sure it exists? The right to be free from malicious prosecution has remained elusive despite decades of judicial and scholarly attention. Some still debate whether it even exists, and many more argue that it should not. The constitutional malicious-prosecution claim often brought under Section 1983 is something of an enigma—despite the name, the claims generally are not brought against prosecutors, and they rarely involve malice in an ordinary sense. Rather, they are part of the family of constitutional torts aimed at addressing police misconduct—here, for initiating criminal prosecutions without probable cause.

These lawsuits serve two critical roles. First, they provide redress for the harms uniquely associated with enduring a criminal prosecution, namely, being deprived of rights “to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place.”1 1.Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting).Show More And second, because malicious-prosecution claims are not ripe until favorable termination—which occurs when a prosecution ends without a conviction2 2.Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022).Show More—they may extend the timeframe to bring civil-rights suits. Because companion constitutional torts generally accrue much earlier,3 3.If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination).Show More malicious-prosecution suits give a person more time to vindicate at least some of their rights.4 4.Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months).Show More

But regardless of how important they are in theory, in practice, these suits rarely succeed. Despite significant debate over the proper constitutional home of malicious prosecution,5 5.See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”).Show More there is little clarity on its practicalities: after thirty years of effort, an “embarrassing diversity of judicial opinion” remains.6 6.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.).Show More In Albright v. Oliver,7 7.510 U.S. 266 (1994) (plurality opinion).Show More and again nearly twenty-five years later in Manuel v. City of Joliet,8 8.580 U.S. 357 (2017).Show More the U.S. Supreme Court made its first error: by focusing only on whether malicious prosecution is properly housed in the Fourth or Fourteenth Amendment, the Court twice missed its chance to intervene in any practical sense. Both decisions had shockingly little real-world impact.9 9.See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel).Show More But two years ago, in Thompson v. Clark,10 10.142 S. Ct. 1332 (2022).Show More the Court made a new kind of error: by failing to address the most important problems in Section 1983 malicious-prosecution litigation, the Court issued an ostensibly good decision that, as this Note discovers, also failed to make much of a difference.11 11.See infra Section II.C.Show More At each turn, the Court has failed to identify the sources of malicious prosecution’s challenges and thus has failed to provide solutions tailored to those core problems. This Note fills that gap.

By exploring for the first time how the U.S. Courts of Appeals have responded to Thompson, this Note identifies two primary issues. First, in the wake of Thompson, the high-level disagreement that Judge Posner called “embarrassing”12 12.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992).Show More endures.13 13.See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim.Show More Here, “[v]aried interpretation of federal constitutional law raises . . . troubling[] questions,” and nonuniformity has had tangible consequences.14 14.See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake).Show More The details of these claims diverge wildly depending on the circuit, and even within circuits, so plaintiffs—many of whom are not represented by counsel15 15.See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases).Show More—have little chance of figuring it out. Specifically, there is significant disagreement on the two usual elements of a Section 1983 malicious-prosecution claim that most often prove fatal: probable cause and malice. The initiation of criminal charges without probable cause is the “gravamen” of malicious prosecution,16 16.Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022).Show More but there is little clarity on what probable cause is relevant.17 17.There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280.Show More Because malicious-prosecution defendants are typically police officers or investigators, and not those directly responsible for decisions to prosecute,18 18.SeeImbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits).Show More it can be hard to parse whose decisions—and which of those decisions—matter. Lack of malice, while not always even an element of malicious prosecution, can serve as a nearly insurmountable barrier to plaintiffs.

Second, because the Court has never directly considered what the “seizure” in a malicious prosecution is, some lower courts have artificially narrowed Section 1983 malicious-prosecution claims to encompass only suits where the plaintiff was detained. This misunderstands the harm of a malicious prosecution and closes courthouse doors to individuals whose constitutional rights have been violated. Although we more often think of trans-substantive doctrines like qualified immunity as limitations on the availability of damages remedies, here we see remedial access limited through a restrictive framing of the substantive right itself.19 19.See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”).Show More

Answering these questions the right way could produce the result the Court’s repeated efforts would suggest it desires—a settled doctrinal framework for malicious-prosecution claims brought under Section 1983. And more importantly, clarifying the scope of malicious-prosecution claims should cure the notice issues and inconsistencies that make them harder to win than they should be. Maybe the fourth time could be the charm?

This Note explores these questions through three Parts. Part I will discuss the Court’s historical efforts to determine where a right to be free from malicious prosecution is located in the Constitution, a project that failed to yield doctrinal stability. Part II will provide the first postmortem of Thompson—a case that, promisingly, addressed a narrow, technical aspect of Section 1983 litigation—and explore its (limited) impacts on the lower courts. Part III will answer the questions at the root of Section 1983 malicious prosecution’s problems—those identified in Part II. This Note thus has two primary contributions: first, it provides a descriptive account of the lower courts after Thompson, which both makes evident the Court’s failure in problem identification and identifies the right problems to address next; and second, through answering the questions left open after Thompson, it provides the first account of malicious prosecution that solves the meaningful practical problems that have, until now, gone unaddressed. The goal of this Note is simple: to make Section 1983 malicious-prosecution suits work.

  1.  Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting). ↑
  2.  Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022). ↑
  3.  If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination). ↑
  4.  Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months). ↑
  5.  See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”). ↑
  6.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.). ↑
  7.  510 U.S. 266 (1994) (plurality opinion). ↑
  8.  580 U.S. 357 (2017). ↑
  9.  See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel). ↑
  10.  142 S. Ct. 1332 (2022). ↑
  11.  See infra Section II.C. ↑
  12.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992). ↑
  13.  See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim. ↑
  14.  See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake). ↑
  15.  See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases). ↑
  16.  Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). ↑
  17.  There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280. ↑
  18.  See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits). ↑

  19.  See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”). ↑

Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework

Before Roe v. Wade was decided, the Board of Immigration Appeals (“BIA”) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could be removed from or declared inadmissible to the United States if they were convicted of or admitted to performing an illegal abortion. Because the standard of moral turpitude is one that evolves with society as societal values change, it is unclear that the BIA would still find performing an illegal abortion to be a crime involving moral turpitude today. In order for a conviction to constitute a crime involving moral turpitude, the statute the defendant was convicted under must require sufficient intent and criminalize reprehensible conduct. This Note looks to the history of moral turpitude and the current tests applied in immigration law to determine whether performing an illegal abortion could be considered a crime involving moral turpitude post-Dobbs v. Jackson Women’s Health Organization. After applying the relevant tests and comparing performing an illegal abortion to crimes that have previously been designated crimes involving moral turpitude, this Note reaches the conclusion that performing an illegal abortion should not be found to be a crime involving moral turpitude.

Introduction

In 1946, before Roe v. Wade or Planned Parenthood of Southeastern Pennsylvania v. Casey were decided,1 1.See generally Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).Show More the Board of Immigration Appeals (“BIA”) determined that performing an illegal abortion was a crime involving moral turpitude (“CIMT”) in the immigration context.2 2.Matter of M—–, 2 I. & N. Dec. 525, 528 (B.I.A. 1946).Show More As a result, pre-Roe, a noncitizen could be removed from or declared inadmissible to the United States if they were convicted of performing an illegal abortion.3 3.The current version of the Immigration and Nationality Act states that a noncitizen is inadmissible if they have been convicted of or admit to having committed a CIMT. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A noncitizen who has been legally in the United States is removable if they are convicted of a single CIMT within five years of admission and if the conviction carried a potential imprisonment of at least one year. Id. § 1227(a)(2)(A)(i). A noncitizen is removable if they commit two CIMTs not arising out of a single scheme of criminal misconduct at any point after admission. Id. § 1227(a)(2)(A)(ii).Show More While there has not been an immigration case determining whether performing an illegal abortion is a CIMT post-Roe, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization4 4.142 S. Ct. 2228 (2022).Show More creates the possibility that this may change. It is important for both criminal defense attorneys and immigration advocates to be aware of the implications of this reality.

This Note explores the history of moral turpitude and analyzes whether performing an illegal abortion would be considered a CIMT today. After the Supreme Court decided Dobbs, overturning Roe and Casey,5 5.Id. at 2242.Show More the United States faced, and still faces, a period of uncertainty regarding abortion laws. At the time Dobbs was decided, some states had trigger laws in place that immediately outlawed virtually all abortion as soon as Roe was overturned,6 6.See, e.g., La. Stat. Ann. § 40:1061 (2023).Show More while other states passed new abortion bans,7 7.See, e.g., West Virginia Gov. Jim Justice Signs Abortion Ban Into Law, Politico (Sept. 16, 2022, 2:17 PM), https://www.politico.com/news/2022/09/16/west-virginia-jim-justice-abort‌ion-ban-law-00057255 [https://perma.cc/7GN9-UWKV].Show More the strictest of which criminalized abortion from the time of conception.8 8.Ark. Code Ann. §§ 5-61-303 to 5-61-304 (Supp. 2023).Show More These new laws conflict with previously existing statutes at times9 9.Rebecca Boone & Claire Rush, Post-Roe, States Struggle With Conflicting Abortion Bans, AP News (July 1, 2022, 6:41 PM), https://apnews.com/article/abortion-state-governments-idaho-afa15cab32e3f46524997e0255fe8c8f [https://perma.cc/9NKK-JGXC].Show More and create an unclear line between a legal abortion under federal law and a felony abortion under state law.10 10.Compare Exec. Order No. 14,067, 87 C.F.R. 42053 (July 8, 2022) (stating that abortion is “essential to justice, equality, and our health, safety, and progress as a Nation” and directing the Secretary of Health and Human Services to protect and expand access to abortion care), with Tex. Health & Safety Code Ann. § 170A.004 (West 2022) (classifying abortion as a felony of the first or second degree). A similar conflict is currently being litigated in the U.S. Court of Appeals for the Ninth Circuit with respect to Idaho’s abortion law. United States v. Idaho, No. 23-35440, 2023 WL 6308107, at *1 (9th Cir. Sept. 28, 2023). The federal government argued that federal law could require abortions which are not included under the State’s life of the mother exception. Id. at *3. The Ninth Circuit found in favor of the State, overturning a district court decision and granting a stay of the preliminary injunction on Idaho’s abortion law. Id. at *1, *7. The Ninth Circuit panel stated that the state law did not restrict abortions required by federal law. Id. at *5. The Ninth Circuit later vacated the order and agreed to rehear the matter en banc. See United States v. Idaho, 82 F.4th 1296 (9th Cir. 2023). An en banc panel subsequently denied Idaho’s motion to stay the injunction pending appeal. See United States v. Idaho, 2023 U.S. App. LEXIS 30135 (9th Cir. Nov. 13, 2023).Show More Other states have since passed new statutes to protect an individual’s right to receive an abortion.11 11.As of sixty days after Dobbs was passed, sixteen states had “passed legislation to protect access to abortion before and in response to Dobbs.” Larissa Jimenez, 60 Days After Dobbs: State Legal Developments on Abortion,Brennan Ctr. for Just. (Aug. 24, 2022), https://www.brennancenter.org/our-work/research-reports/60-days-after-dobbs-state-legal-de‌velopments-abortion [https://perma.cc/VB7W-SVPY].Show More Immigration attorneys have recognized the danger these new abortion laws may present in immigration law.12 12.Immigration attorneys and advocates published an open letter to the Department of Homeland Security (“DHS”) after Dobbs, requesting that DHS clarify that abortion-related convictions would not be used as a basis for immigration enforcement actions. Letter from Advocs. for Youth et al. to Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec. (July 19, 2022), https://www.americanimmigrationcouncil.org/sites/default/‌files/research/coalition‌_ur‌ges_dhs_to_protect_the_right_to_abortion_after_dobbs.pdf [https://perma.cc/5LAJ-SX‌HP].Show More

The term “crime . . . involving moral turpitude” first appeared in immigration law in the Immigration Act of 1891 as a ground for exclusion13 13.Immigration Act of 1891, Pub. L. No. 51-551, § 1, 26 Stat. 1084.Show More and was designated by Congress as a ground for removal in 1917.14 14.Immigration Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874.Show More The term “crime involving moral turpitude” has never been defined by Congress15 15.See Jordan v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting) (“Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’”); see also De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (“The phrase ‘crime involving moral turpitude’ is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is ‘perhaps the quintessential example of an ambiguous phrase.’”).Show More and instead has largely been left to judicial interpretation. The result is a patchwork area of law, with circuit splits both as to what constitutes a CIMT and what the correct test is to apply to make that determination. The current definition put forth by the BIA is that a CIMT is “conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”16 16.Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (B.I.A. 2016) (citation omitted) (interim decision).Show More

This Note will analyze total abortion bans enacted in the United States under the modern immigration CIMT framework and provide a basis for immigration advocates to argue that performing an illegal abortion is not a CIMT. Part I provides a brief history of CIMTs, both within and beyond immigration law. Part II provides an overview of the current frameworks used by the BIA and federal courts to determine if a conviction constitutes a CIMT. Part III analyzes how modern abortion bans are likely to fit within this framework, finding that these illegal abortions are unlikely to be considered CIMTs. Part IV discusses the potential implications were the BIA or a federal court to find that performing an abortion is a CIMT.

  1.  See generally Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). ↑
  2.  Matter of M—–, 2 I. & N. Dec. 525, 528 (B.I.A. 1946). ↑
  3.  The current version of the Immigration and Nationality Act states that a noncitizen is inadmissible if they have been convicted of or admit to having committed a CIMT. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A noncitizen who has been legally in the United States is removable if they are convicted of a single CIMT within five years of admission and if the conviction carried a potential imprisonment of at least one year. Id. § 1227(a)(2)(A)(i). A noncitizen is removable if they commit two CIMTs not arising out of a single scheme of criminal misconduct at any point after admission. Id. § 1227(a)(2)(A)(ii). ↑
  4.  142 S. Ct. 2228 (2022). ↑
  5.  Id. at 2242. ↑
  6.  See, e.g., La. Stat. Ann. § 40:1061 (2023). ↑
  7.  See, e.g., West Virginia Gov. Jim Justice Signs Abortion Ban Into Law, Politico (Sept. 16, 2022, 2:17 PM), https://www.politico.com/news/2022/09/16/west-virginia-jim-justice-abort‌ion-ban-law-00057255 [https://perma.cc/7GN9-UWKV]. ↑
  8.  Ark. Code Ann. §§ 5-61-303 to 5-61-304 (Supp. 2023). ↑
  9.  Rebecca Boone & Claire Rush, Post-Roe, States Struggle With Conflicting Abortion Bans, AP News (July 1, 2022, 6:41 PM), https://apnews.com/article/abortion-state-governments-idaho-afa15cab32e3f46524997e0255fe8c8f [https://perma.cc/9NKK-JGXC]. ↑
  10.  Compare Exec. Order No. 14,067, 87 C.F.R. 42053 (July 8, 2022) (stating that abortion is “essential to justice, equality, and our health, safety, and progress as a Nation” and directing the Secretary of Health and Human Services to protect and expand access to abortion care), with Tex. Health & Safety Code Ann. § 170A.004 (West 2022) (classifying abortion as a felony of the first or second degree). A similar conflict is currently being litigated in the U.S. Court of Appeals for the Ninth Circuit with respect to Idaho’s abortion law. United States v. Idaho, No. 23-35440, 2023 WL 6308107, at *1 (9th Cir. Sept. 28, 2023). The federal government argued that federal law could require abortions which are not included under the State’s life of the mother exception. Id. at *3. The Ninth Circuit found in favor of the State, overturning a district court decision and granting a stay of the preliminary injunction on Idaho’s abortion law. Id. at *1, *7. The Ninth Circuit panel stated that the state law did not restrict abortions required by federal law. Id. at *5. The Ninth Circuit later vacated the order and agreed to rehear the matter en banc. See United States v. Idaho, 82 F.4th 1296 (9th Cir. 2023). An en banc panel subsequently denied Idaho’s motion to stay the injunction pending appeal. See United States v. Idaho, 2023 U.S. App. LEXIS 30135 (9th Cir. Nov. 13, 2023). ↑
  11.  As of sixty days after Dobbs was passed, sixteen states had “passed legislation to protect access to abortion before and in response to Dobbs.” Larissa Jimenez, 60 Days After Dobbs: State Legal Developments on Abortion,

    Brennan Ctr. for Just. (Aug. 24, 2022), https://www.brennancenter.org/our-work/research-reports/60-days-after-dobbs-state-legal-de‌velopments-abortion [https://perma.cc/VB7W-SVPY]. ↑

  12.  Immigration attorneys and advocates published an open letter to the Department of Homeland Security (“DHS”) after Dobbs, requesting that DHS clarify that abortion-related convictions would not be used as a basis for immigration enforcement actions. Letter from Advocs. for Youth et al. to Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec. (July 19, 2022), https://www.americanimmigrationcouncil.org/sites/default/‌files/research/coalition‌_ur‌ges_dhs_to_protect_the_right_to_abortion_after_dobbs.pdf [https://perma.cc/5LAJ-SX‌HP]. ↑
  13.  Immigration Act of 1891, Pub. L. No. 51-551, § 1, 26 Stat. 1084. ↑
  14.  Immigration Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874. ↑
  15.  See Jordan v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting) (“Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’”); see also De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (“The phrase ‘crime involving moral turpitude’ is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is ‘perhaps the quintessential example of an ambiguous phrase.’”). ↑

  16.  Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (B.I.A. 2016) (citation omitted) (interim decision). ↑

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