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Criminal Law
University of California, Berkeley School of Law
Sood, Avani Mehta

Criminal Law
Professor Avani Mehta Sood
Spring 2014
Berkeley Law (Boalt Hall)
(See table of contents on last 2 pages)
Abbreviations Note: don’t use P for purposefully
SBH = serious bodily harm
MR = mens rea
AR = actus reus
CL = common law
AC = attendant circumstances
jxn = jurisdiction
RP = reasonable person
SL = strict liability
K = knowingly
R = recklessly
N = negligently
EED = extreme emotional disturbance
P = prosecutor
D = defendant
SCOTUS = U.S. Supreme Court
DV = domestic violence
b/c = because
b/w = between
w/ = with
w.r.t. = with respect to
FM(R) = felony murder (rule)
MoF = mistake of fact
MoL = mistake of law
MPC = Model Penal Code
MS = manslaughter
1.      Introduction
·         Factors we consider when thinking about what makes some things crimes
·   Culpable mind (mens rea)
·   Voluntary conduct
·   Moral blameworthiness (malum in se)
·         Miles Harrison (left son in car) – involuntary manslaughter (criminal negligence)
·         Drazen Erdemovic – enlisted in Bosnian Serb Army – unwillingly participated in slaughter of Muslims near Srebrenica (ordered by commander at threat of life)
·         Jack Tatum – Oakland Raider safety “the Assassin” – in 1978 hit another player causing paralysis, failed to show remorse
a.Sources of Criminal Law
·   Criminal law is now essentially statutory – all states (+ feds) have penal code
·   Statutes (states, federal)
·   Often based on common law and/or MPC
·   Common law (originated in England, developed by judges)
·   Memorialized in judicial opinions rather than codified
·   Reception statutes – receive entire common law into statute
·   Judges continue to interpret statutes
·   MPC (1962) – influential catalyst for criminal code reform in U.S.
·   Promulgated by the ALI
·   Other ways society can regulate conduct: Tort law, incentives (taxes), admin law, social/religious pressures/norms
b.Theories of Punishment
·   Punishment intended to be unpleasant, gov’t must have strong justification for inflicting
·   Criminal punishment also has sense of condemnation, stigma
·   Prison is punitive – overcrowded, sexual violence, poss. 8th Am (cruel & unusual) violations
·   Questions: General justifying aim – why punish? Distribution – why punish this individual? Who should be punished? Degree – what justifies the amount of punishment in a particular case?
·   Correction/rehabilitation is no longer primary goal, but still called Dep’t of Corrections
·    Emphasis on incapacitation, little interest in/resources for treatment or education
·    Jail = local facility, usually sentences < 1 year; Prison = longer sentences ·   Many offenders also supervised thru probation or parole ·  High caseload for probation officers (117 actual, 35 is goal) ·  Parole: post-incarceration, conditional release from prison, serve remainder of sentence in community ·  Probation: pre-incarceration or generally in lieu of, if fail to comply with conditions then sent to prison ·   Record number of offenders in system in U.S., large increase since 1995 (and 1980), esp. in incarceration (although rate of violent or property crime did not increase during this period) ·   U.S. has highest rate of incarceration in the world ·   Women incarcerated at much lower rate than men ·   Young black males – severe impact (D.C., Baltimore, other inner-cities) ·   Disturbing evidence: black & Hispanic offenders receive harsher sentences than whites ·   Convicted offenders have problems finding housing, jobs - stigma ·   Statutory restrictions on occupational licenses, educational assistance, other public benefits (voting rights, student loans), also impacts on social relationships ·   Prevalence (ubiquity) of criminal background checks   Retributivism Utilitarianism About wrongdoer and what they did About society & greater good (forward looking) Looks backward – punishment justified by past wrongdoing Looks forward – punishment justified by its future benefit Punishment as an end in itself Punishment as a means to an end Assumes people have free will Assumes people make rational cost-benefit calculations (esp. deterrence) ·   Different justifications can lead to similar or different outcomes ·   Retributive justification for punishment: just deserts ·   Punishment justified b/c people deserve it – morally right ·   Look at offender’s behavior, blameworthiness/seriousness of that behavior ·   Individual choices – assumption we have free will/choose our actions and should be held morally responsible for our choices ·   Punishment justified by seriousness of offense committed ·   Degree of punishment usually linked to moral culpability ·   Proportional to moral blameworthiness of act ·  Retaliation: punishment should be linked to harm caused ·   Some believe guilty must be punished (moral guilt is sufficient - positive retributivism, focus on moral element) ·   Contrast negative retributivism (focus on what we must not do): must not punish innocent, punish disproportionately (guilt is necessary but not necessarily sufficient) ·   Offender must be first found guilty and punishable – justice and righteousness require ·   Immanuel Kant (p. 93-94) argues for equality – retaliation – all who commit murder must die (eye for an eye) – offended by using offender as an instrument of society ·   Michael Moore (p. 95) – punish only b/c deserved, not b/c of deterrence or victims want it – moral culpability gives duty to punish ·   We may be uncomfortable letting someone off the hook but it’s hard to admit you want to punish for retributive reasons (utilitarian easier to admit/sounds more studied?) ·   Old proportionality: eye for an eye; Modern – ask for proportional sentence ·   Criticisms ·   Moral judgment being imposed ·   Fine line b/w vengeance and retribution   ·   Utilitarian justification for punishment: justified by useful purpose(s) it serves ·   Purpose of law is to maximize net happiness of society (see Bentham) ·   Good future consequences of punishment ·   Measure policy by costs and benefits ·   Assumptions: people are thinking rationally, making cost/benefit calculations (before and at the time they commit offenses), people know the law ·   Criticisms ·   too little attention to individual rights ·   too little concern about what happens to this offender (willing to offer up as an example for deterrent effect) – in candy bar thief hypo, outcome disproportionate ·   lack of connection b/w punishment and offender’s moral blame ·   Jeremy Bentham (p. 91) – goal should be happiness of community ·   Punishment evil/causes unhappiness, only punish when it will reduce greater evil ·   Man weighs magnitude of pain, pleasure consequences of act in decision “In matters of importance every one calculates.” ·   Greater offenses ought to have more severe punishment – gives an incentive to stop at lesser offense ·   Deterrence (general, specific) – keep (other, this) offender from committing same crime ·   Underlying assumption: people are rational actors, making cost/benefit calculations ·   Debate: does variation in punishment lead to variation in amount of crime ·   Argument against: offenders do not make cost/benefit calculations, ignorant of sentences, some crimes impulsive, gangs just replace members who go to jail ·   Incapacitation of offender – restrain/remove from society so can no longer commit crimes ·   Jails are designed to restrain those held there ·   Dilulio, Jr. (p. 120) – cost effective compared to leaving criminals on streets except for first time low-level drug offenders – later retracted- so many incarcerated, U.S. had maxed out on public-safety value of incarceration – argued for policy of zero prison growth, drug treatment, effective probation/parole supervision ·   Not all offenders as likely to commit crimes – decrease with age (crim behavior concentrated in late teens/early 20’s) – implications for length of sentence ·   Criticism: may have unintended consequence of hardening the offender ·   Rehabilitation of offender – repair them so they can return to society ·   Rehab/reformation popular in 1940’s but replaced by “medical” model in 1960’s – Quaker view that religious instruction & hard labor could cure ·   Medical model - perception of criminal as sick & in need of treatment ·   Criticism (left): paternalistic, someone else decides when you’re “cured” ·   Criticism (right): too soft and costly ·   By 1970’s, rehab had fallen almost totally ·   Some programs reduce recidivism for some offenders under some circumstances, but “nothing works” became lodged in public mind ·   Restorative justice – goal is to repair/restore rather than to satisfy an abstract theory ·   Think about needs of: offender, victim, community ·   Sometimes about a dialog – return stolen items, perform community service ·   Used often in

(than plea) – poss. incentive for attorney to plea
2.      Contract system – group of attorneys agree to represent # of clients for $ paid by government
·   Compensation same whether plead or trial
3.      (Public) defender system – staff attorneys represent D’s
·         Annual salary so no financial incentive to plea but high caseload creates time/budget pressures
·         Judges – majority of states – election at some point (varies by jxn)
·   21 states – elected
·   29 states – initially appointed but then must run for reelection
·   U.S. is unique among western democracies in have judges elected
·   Lower courts esp. crowded – chronically overstaffed, hasty decisions common
·         Speed more important than care, over 100 cases/day
·         CrimPro overview
·         Presentment – handed crim complaint from judge
·         Preliminary/detention hearing – more formal, in front of judge
·         Indictment – 23 people on grand jury – doesn’t involve judge or defense attorney
·         No right to indictment in CA
·         Arraignment – formally charged
·         MJOA = motion for judgment of acquittal
·         Defense case – will often renew MJOA
·         Order of jury instructions/gov’t rebuttal can vary
·   Jury instructions are frequent subject of appeal
·   Most offenses not serious
·   Investigation (police) – assemble evidence – not all crimes reported, solved
·   Dismissal/diversion – roughly 50% dismissed at early stage
·         Often police or prosecutors drop b/c too busy
·         Sometimes offender better served by help w/mental, emotional, social problems – police/prosecutors decline to proceed – most first offenders let go
·         Diversion – if D agrees to meet certain conditions (drug treatment or anger management class), charges dismissed
·   Pretrial release
·         Bail while awaiting trial – 10% charge paid by D as fee to bondsman
·         Some malfeasance/corruption b/w bail-bond agencies and courts
·         Reforms – for D’s with significant ties to community, may not be required to post $, post 10% directly with court (refundable when you appear)
·         Minority D’s more likely to get higher bail or more likely to be detained pre-trial
·         Prosecutorial Discretion (broader & more important than ever)
·   Low requirements for proof at grand jury and preliminary hearing stages
·   Prosecutors are typically elected
·   Prosecutor must have “probable cause” to file charges, for trial need admissible evidence that will show guilt beyond a reasonable doubt
·   Standards for P’s in some jxns – be personally convinced beyond a reasonable doubt before bringing charges
·   ABA standard: P required to dismiss charges when “reasonably believes that proof of guilt beyond a reasonable doubt is lacking”
·   ABA Standard 3-3.0: Discretion in the charging decision
·   (a)A prosecutor should not … permit… charges when [she] knows that the charges are not supported by probable cause [nor]… in the absence of sufficient admissible evidence to support a conviction.
·   (b) … The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction.
·   2 commonly cited reasons for not pursuing all legally sustainable charges: limited resources, need to individualize justice
·         “Overcriminalization” also supports discretion: legislatures define lots of crimes and authorize severe punishments
·   “tough on crime” – easy to enact, hard/impossible to repeal
·   “One-way ratchet” – laws are mostly symbolic, presuppose discretion