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Criminal Law
University of California, Berkeley School of Law
Murray, Melissa

Criminal Law, Professor Murray, UC Berkeley Law, Fall 2012
I.    Basic Principles of Criminal Law
A.   Introduction
1.      Sources of Criminal Law, CL 1-5
a.       Where gaps exist in penal codes, courts will often turn to common law to fill them.
b.      Retains significance in statutory interpretation (particularly if common law is the source)
Ø  Keeler v. Superior Court (ex-husband kicks wife in gut; kills fetus) – faced with statutory ambiguity regarding definition of human being, court finds that only a viable fetus born alive constituted a human being at common law.
c.       Federal and State criminal Law
Ø  Federal criminal law derives from Constitution.
§  Ex: Commerce Clause of Article I (Drug Trafficking)
Ø  Constitutional limits on criminal law
§  First Amendment:
§  Due Process Clause (5th and 14th Amendments)
§  “Cruel and Unusual Punishment (8th Amendment)
Ø  Model Penal Code
§  Portions of the MPC has become law in many states (34 states have adopted parts).
2.      The Criminal Process, CL 6-13
a.       Henry Hart’s The Aims of the Criminal Law (5 characteristics of the method of criminal law)
Ø  Operates by a series of general commands telling people what they must/must not do.
Ø  The commands speak to members of the community on the community’s behalf, with the power of the community behind it.
Ø  The commands are subject to one or more sanctions for disobedience.
Ø  Distinct from civil sanctions, because criminal sanctions are a judgment of community condemnation, accompanies and justifies imposition.
Ø  Involves community condemnation + threat of unpleasant physical consequences, commonly called punishment
b.      Basic Criminal Process
Ø  Crime occurs.
Ø  Police detect and investigate the crime.
Ø  Based on the results of these investigations, prosecutors make decisions about whether to charge an individual for the crime.
Ø  Once they decide that they want to pursue prosecution of the crime, prosecutors have to charge the individual believed to be responsible. Sometimes the charge is issued by a judge in a document called an information. More often, the prosecutor presents the evidence to a grand jury, which then decides whether to issue an indictment charging the individual.
Ø  Once the individual is arrested and has heard the charges against her (as documented in the indictment or information),
Ø  Whether by guilty plea (90%) or by guilty verdict at trial, the defendant is convicted and later sentenced for the crime charged.
c.       Burden of Proof (from Due Process Clauses of 5th and 14th Amendments)
Ø  To convict a defendant, the government must persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged.
3.      Owens v. State, CL 14-17
a.       Man gets DUI by running car that was parked in a driveway.
b.      Whether circumstantial evidence was enough to prove his guilt beyond a reasonable doubt
c.       Reasonable doubt: “being unable to say that you have an abiding conviction, to a moral certainty, of the truth of the charge.”
Ø  Beyond a reasonable doubt is proof that leaves you “firmly convinced of the defendant’s guilt” – It is not proof of guilt “beyond all possible doubt.”
B.   Principles of Punishment
1.      Theories of Punishment, CL 31-48, MPC § 1.02
a.       Utilitarianism (Jeremy Bentham) – All punishment is mischief and can only be justified insofar as it promises to exclude some greater evil.
Ø  Utilitarian Purposes:
§  General deterrence – Allow punishment because it deters others in society from committing bad acts.
§  Specific/Individual deterrence – Allow punishment because it deters the wrongdoer from committing future crimes.
§  Incapacitation – Allow punishment because it removes the offender from society, incapacitating his deviant impulses.
§  Rehabilitation/Reform – Allow punishment because it allows the offender an opportunity to reform his character and return to society as a law-abiding and productive citizen.
b.      Retributivist (“retrospective”) – punishment is justified when it is deserved, when the wrongdoer freely chooses to violate society’s rules, regardless of whether it will result in a reduction in crime. Concerted with moral culpability, free will, and the wrongdoer’s desert (just deserts).
Ø  Variations on the Retributivist Theme
§  Immanuel Kant – punishment is justified because the offender has dome something wrong.
§  Michael Moore (positive retribution) – punishment is justified because the offender deserves to be punished for the wrong committed (guilt is a necessary and sufficient condition of punishment)
§  James Fitzjames Stephen (assaultive retribution) – punishment is justified because it expresses our collective hatred of the crime and the offender
§  Herbert Morris (protective retribution) – punishment is justified because, in committing a wrong, the offender has availed himself of the benefits of society but has refused to assume the burden of being law-abiding. Punishment recalibrates this balance between benefits and burdens
§  Jeffrie Murphy and Jean Hampton (victim vindication) – punishment is justified because it allows the victim to vanquish the offender and assert that he is equal to the offender.
2.      The Queen v. Dudley and Stephens, CL 48-50
a.       Kant
Ø  They killed somebody, they did something wrong, must be punished.
b.      Stephen
Ø  We would punish them so that we can express our hatred for the act of murder and cannibalism.
c.       Morris 
Ø  Yes we have benefits and burdens but maybe these reasons are not in play here.
d.      Murphy and Hampton
Ø  By choosing him to eat, they decide on their superiority. We punish them because he was not inferior to them, he was morally as capable of life as they were.
e.       Bentham
Ø  Specific deterrence doesn’t make sense.
Ø  General deterrence. Would always happen in the 1800’s. Why wouldn’t general deterrence be useful?
Ø  General deterrence – you see Dudley and Stephens being punished, you’re not going to eat somebody the next time you’re on a boat.
§  They are not generally wrongdoers so they don’t need reform. Dudley is religious. Both family men. Unlikely need punishment to be good people.
§  Do we need to incapacitate them to prevent them from doing it again? Not dangerous.
§  Were found guilty and were sentenced to death. General deterrence by sentencing.
§  Bentham is concerned about proportionality of punishment. If it is severely harsh, maybe I’ll say I’m going to die anyway, might as well do it. There has to be a proportionate system of costs and benefits. If punishment is too high, people would lose faith in system.
f.       Commutation after 6 months. What does it suggest?
Ø  Would Jeremy Bentham prefer this to death sentence? Yes. He would not be for death penalty. Three lived instead of none.
g.      Queen is showing strains of U and R.
Ø  Something happened for which punishment is necessary but not this much.
h.      Utilitarian for purposes of the severity of this punishment.
3.      People v. Superior Court (Du), CL 51-54
a.       Store clerk shot and killed girl she thought was robbing/attacking, did not know gun was modified. Convicted of voluntary manslaughter.
b.      Rule: the amount of punishment imposed for voluntary manslaughter depends on the facts of each case.
4.      People v. Du & Note 4, CL 54-56, 57-59
a.       Rule: Probation is a permissible punishment for voluntary manslaughter in unusual cases.
C.   Proportionality of Punishment
1.      General Principles, CL 69-71 – A general principle of criminal law is that punishment should be proportional to the offense committed.
a.       Utilitarian Meaning – Punishment is proportional if it involves the infliction of no more pain than necessary to fulfill the law’s deterrent goal of reducing a greater amount of crime.
Ø  Punishment cannot be less than is required to outweigh the potential profit to the criminal of committing the offense.
Ø  The greater the mischief of the offense, the greater the expense of the punishment required.
Ø  Offense must be graded in a manner that would induce a person to choose the lesser of two possible offenses.
Ø  Punishment should not be more than is necessary to bring it in conformity with the above stated rules.
b.      Retributive Meaning – Punishment should be proportional to the harm caused on the present occasion, taking into consideration the actor’s degree of culpability for causing the harm.
Ø  Penalty for murder must be death, however, it must be kept from all maltreatment
Ø  In cases like theft and rape, punishment should be in kind (not in type).
c.        Key Differences between Utilitarian/Retributivist Approach
Ø  Utilitarian punishment linked to deterrence and predictions of future harm. Retributivists portion punishment to crime already committed (therefore may be less supportive of increased punishments for recidivists)
Ø  Retributivists view punishment as a right or obligation. Utilitarian view punishment as undesirable unless it creates a net benefit to society.
2.      Constitutional Principles, CL 72
a.       Eight Amendment
Ø  “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
Ø  Weems v. United States – SCOTUS interpreted this constitutional provision to contain an implicit requirement that “punishment for the crime…be graduated and proportional to the offense.
3.      Model Penal Code § 1.02(2)(c)
a.       “The general purposes of the provisions governing the sentencing and treatment of offenders are:…(c) to safeguard offenders against excessive, disproportionate or arbitrary punishment.”
4.      CA Penal Code  § 1170(a)(1)
a.       “The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.”
5.      Coker v. Georgia and Notes, CL 72-81
a.       SCOTUS holds that death penalty is not invariably cruel or unusual punishment under the 8th Amendme

warning of the law’s requirements, and the opportunity to conform one’s conduct to the law, there is no basis for moral condemnation of the actor.
Ø  Utilitarian:
§  Enhances the possibility for general deterrence.  Individuals cannot be deterred from committing that they don’t realize has been prohibited as criminal.
d.      Constitutional Foundations of the Principle of Statutory Clarity
Ø  Due Process Clause of the 5th Amendment
§  “No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury … nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; … nor be deprived of life, liberty, or property, without due process of law….”
Ø  Due Process Clause of the 14th Amendment
§  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall … deprive any person of life, liberty, or property, without due process of law….”
e.       In re Banks and Notes 3 & 7-8, CL 105-113
Ø  Banks (Defendant) was charged with violating a Peeping Tom statute.
Ø  Prior judicial interpretation of the terms of a statute challenged for unconstitutional vagueness can vitiate (destroy or impair legal validity) the challenge.
Ø  N.C. Gen. Stat. § 14-202, Secretly peeping into room occupied by female person.
Ø  “Any person who shall peep secretly into any room occupied by a female person shall be guilty of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of the court.”
Ø  Basic Principles of Statutory Interpretation
§  Step One: Determine if the statutory language is clear and unambiguous.  If it is, interpret the statute strictly according to its language.
§  Step Two: If it is not, courts must determine the legislature’s intent in enacting the statute and give effect to that intent.
Ø   Basic Techniques for Determining Legislative Intent
§  Common meaning of the terms
§  Language of the statute
§  Legislative history (Look at title, speeches, preamble, what does it seem that they were doing?)
§  Earlier statutes on the same subject
§  Common law as it was understood at the time the statute was enacted
§  Previous interpretations of the same or similar statutes
Ø   “A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties….[N]o more than a reasonable degree of certainty can be demanded.  Nor is it unfair to require that one who deliberately goes perilously close to an arena of proscribed conduct shall take the risk that he may cross the line.”
f.       City of Chicago v. Morales, CL 113-19
Ø  Chicago’s (Plaintiff) anti-loitering ordinance was challenged as unconstitutionally vague because it failed to give adequate notice of what conduct it prohibited and gave police too much discretion.
Ø  To meet the requirements of the Due Process Clause and thus survive invalidation due to vagueness, a criminal law must provide sufficiently specific limits on the enforcement discretion of the police and sufficient notice to the public of what conduct is prohibited.
Ø  What behavior are they proscribing as loitering? Unclear what the conduct proscribed is and unclear that that which is proscribed is not lawful.
3.      Muscarello v. United States, CL 120-25
a.       The defendant challenged the application of a federal firearms statute to his conduct, which involved carrying a firearm in his car, not on his person.
b.      The word “carry,” in its ordinary sense, includes carrying in a car, and neither the basic purpose nor the legislative history of 18 U.S.C. § 924(c)(1) supports circumscribing the scope of the word “carry” by applying an “on the person” limitation.
c.       The way you interpret “use” and “carry.” Looking at other statutes to see what congress might mean. Looking at his provision to see how other terms would work if you interpret this challenge in a particular way. If there is vagueness, apply the Rule of Lenity.