Select Page

Criminal Law
University of California, Berkeley School of Law
Roth, Andrea

Criminal Law Outline

Fall 2013, Professor Roth

Substantive Criminal Law

Functions Of Criminal Law

v Goals: Protect society from harm to public safety

· To Shape social norms

o (1)Defining moral blameworthiness and (2) community standards of moral condemnation for wrongdoing

· Prevent social Harm/Collective interests – by prohibiting certain behavior that falls outside the social norm

o Fair Warning – Instructs the public on how to act according to such norms by giving a fair warning that prohibited behavior will be punished

§ Statutory vs. Common Law – Movement away from expectations of Common Law to statutorily defined law

v Major Issues

· Individual vs. Society Interests: Balancing interests of society with individual interests/rights

o Uniformity vs. individualized justice

· Normative vs. Descriptive – Should criminal law reflect how society should be or

· Criminal Law: Defines the social harms that are punishable with respect to community norms (jury as reflection of community standards)

o Punishment: Society’s answer to the social harm done by criminals à

§ Formal stigmatization / condemnation by the community


Principle of Legality: no crime w/out law, no punishment without law

Defendant cannot be convicted of a crime unless enacted in advanced by legislature

Ø Benefits of Statutory law/Legality: individuals are entitled to protection afforded by clearly announced rules à movement away judge-made law

Ø Fair warning, separation of powers through use of statutes

Ø Punishment-Theory & Fair Warning – Providing prior notice of which behavior is illegal

· Utilitarian – effective deterrence requires individual knowledge of which conduct is forbidden and the consequences such conduct would have

· Retributivist – blaming a person who is chooses to do wrong à no prior notice, no knowledge of what constitutes a wrongful act

§ No choice to break the law if he doesn’t know what it is in advance

Ø Prohibition of Ex-Post Facto – (only) Legislatures cannot enact statutes that criminalize conduct that was innocent when it occurred; no retroactive

· Courts+Retroactive Criminalization – Improperly interprets statutory definition à criminalizes behavior or punish more severely than scope of statute allows for

Ø Rule of Lenity/Ambiguity – any ambiguous language should be interpreted to favor defendant

PURPOSES OF PUNISHMENT: Theories and Justifications

Punishment: Suffering purposely inflicted by the state because one of its laws were violated

RETRIBUTION: Backward-looking rationales; just desert

Punishment for wrong committed àjustified because it is deserved à when wrongdoer freely chooses to violate rules (Moore);

· Past Actions- Punishment on basis of past behavior/act

· Vindictive justice foundation – moral wrongs must be answered, regardless of future/crime reduction

· Free will – Justified because offender made willful, moral choice to violate society’s rules

o No Choice = No Punishment

§ Mental illness à inability to choose actd à no punish.

· Proportional Punishment – eye for an eye, punishment should be no more or no less than severity of crime

v Public Vengeance – Punishment satisfies passion for revenge that may otherwise be sought through private vengeance

§ Expression of society’s hatred (Stephen) for criminals

§ ratification of victim’s resentment for violation of rights

v Protective Retribution/Social Cohesion – Maintain social cohesion by sending message for moral wrongdoing (Stephen), punish to secure moral balance, not inflict suffering

§ Debt – Repaying moral debt owed to society (Hart) – proportional to wrong doing

Ø Rationales For (Pro):

o Social Cohesion –Common belief; society collectively/intuitively believes in retribution

o Personal Autonomy – no forced rehabilitation

§ Punished only as much as is deserved on basis of moral culpability of acts

o Deters Private Vengeance – if criminal is punished based on their actions

Ø Critiques (Cons)

o Evil – why cause more human suffering? à hatred of criminals, glorifies anger

o Proportionality Problem – How to determine? Eye for an eye à excessive/barbaric punishment

§ Ex – proportional imprisonment length / ordinal ranking of crimes

o No return on social harm – making up for the injury D inflicted on society?

UTILITARIANISM: Forward-looking; Consequentialist justification

· Future Benefit – punishment is justified because good consequences it can produce in future à reduction of crime

· Pain – infliction of pain justified only if results in reduction of crime/pain it causes

v DETERRENCE – ability of law to threaten potential D’s with penalty serious enough to dissuade them from acting à REDUCTION OF CRIME IN 2 ways

· Criminals as Rational Calculators – potential D will balance benefits of crime vs. pain of punishment (Bentham)

· 1)Specific – D is punished in order to deter his own future misconduct

· 2) General – D is punished in order deter others in community not to commit crimes (shows impressible conduct and instills fear of pain in those who contemplate it)

Ø Critiques of Deterrence:

· Assumes Rationality – must know the rule/punishment and weigh against his conduct at time of offense

§ Impulsiveness? Lack of empathy (mental issues)

· D as means to end – system ignores personal autonomy, wrongdoer is an instrument for improvement of society

· Justified Punishment of Innocents – allows punishing of innocent in event that it would deter others from committing crime (white mob/black man framed for rape)

v REHABILITATION – Prevent crime by reforming individual through treatment and aid

· 1. Public benefit – make criminals better because society will be better off/safer

· 2. Individual – rehabilitate offenders so they can live successful, normal lives(paternal)

Ø Critiques –

· Inequities – expensive, resources taken from society and non-criminals

§ Those who get caught receive treatment but not others

· moral blameworthiness ignored – no answer to wrongdoing done, help criminals

· Individual Autonomy – rehabilitation is force upon individual, no choice

§ Focus on curing him rather than what is deserved (moore)

§ Criminals treated as childlike/sick not willful moral agents

v INCAPACITATION – Prevent criminals from committing future offenses



pression by gov’t; Peer safeguard against overzealous prosecutors/ corrupt judges à common sense/deliberation of diverse views

Jury Nullification: When the jury acquits despite extreme weight of evidence and knowledge of the law; always available but no right to instruct jury on it and do not have to allow it as a defense (Dougherty)


· Why does it happen? Reasons of conscience, disagreement with law, sympathize with and personal responsibility for fate of accused

Ø Pro-Instruction

o Check on law – power to act against the law à check on governmental powers

o Inconsistent Knowledge – not fair for some juries to know about it and some not

o History – been used for ever, morally justified, shouldn’t be discouraged

o Case specific – individualized cases, may be fair/serve justice in some

Ø Against Instruction (Duncan)

o Encouraging – May encourage individuals to disregard laws they wouldn’t of / taint decision à potential for discrimination

o Anti-democratic – Jury system should not act as a mini-legislature


· Judge can say no à If they ask if acquitting regardless of law is okay

· Can dismiss a juror in selection if he thinks nullification is appropriate

· US v. Dougherty – Upheld lower court Judgment in refusing jury instruction on nullification and barring defense from arguing nullification in case

Prosecutorial Discretion and Plea Bargaining

Prosecutor has ultimate discretion: prosecution is exclusively within powers of executive branch; Judicial officers cannot direct/compel executive offers to prosecute (attica)


· Plea Bargaining – may charge more serious crime for stronger position in bargaining

§ Ex – judge can sentence for maximum against prosecutor’s suggest

· No charge – resources limited and think they will lose/insufficient evidence; want to focus on a stronger case more likely for conviction

§ Considerations – harm done / strength of evidence

· “De factor adjudicator – work backwards to find a charge to fit a sentence they are seeking à prosecutor showing factually similar case where like sentence was given (Lynch)

· Federal v. State – federal usually more uniform and supervised à

§ convict on drugs regardless of amount, only evaluating in sentencing by judge

· Inmates of Attica v. Rockefeller – Prosecutorial powers/discretion exclusively limited to executive branch, judiciary cannot compel executive to prosecute (overburdensome)

· Bordenkircher v. Hayes – Case against prison warden, claimed due process violation after convicted under a diff. charge than indictment after refusing plea bargain