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Criminal Law
University of California, Berkeley School of Law
Weisselberg, Charles D.

Criminal Law

Professor Weisselberg

Fall 2014

1. Purposes of Punishment


i. Utilitarian Approach: Do the benefits outweigh the costs?

ii. Rationale: Sanctions against offenders will deter future offenders

iii. Problems: Presumes offenders make cost-benefit calculation

iv. Forward-Looking: looks to deter future crimes by others through punishment of the current offender


i. Assumptions of Incapacitation

1. Assumes preventing further harm to public is worth the cost of exposing incapacitated population to the danger of a given criminal

2. Assumes criminal career will last the length of incapacitation

3. Assumes no replacement of incapacitated criminal with another

4. Assumes incapacitation would increase recidivist behavior

ii. If Incapacitation Was Only Purpose

1. Widespread incarceration

2. Minimal weight given to nature/circumstances of offense/public needs


i. Purpose: Prevent future crime (correct past crime through reconciliation)

ii. Assumptions

1. Assumes offender willingness to be rehabilitated

2. Assumes motives are correctable

iii. Problems

1. Offenders often unwilling/unable to be rehabilitated

2. Offender behavior not the result of personal, but situational problems

iv. If Rehab Was the Only Purpose

1. Focus less on tying length of sentence to moral culpability

2. Structural effect: less incapacitation; more mediation, psychiatric and educational services

3. More indeterminate sentencing scheme (allows for early rehab)


i. Purpose: Correct past crime

1. Proportionality of punishment to offense

2. Reassertion of personal value of the victim

a. Punishment that shows offender s/he is not better than the victim

b. Vindication for the victim

ii. Assumptions

1. Assumes victim wants to be vindicated

2. Assumes offender will understand punishment’s equalizing purpose

3. Assumes methods are proportionate to dissimilar/unrelated offense

e. Compare with Cal. Rules of Court 4.410 (Objectives of Sentencing)

i. Protecting society (incapacitation)

ii. Punishment (retribution)

iii. Encourage law-abiding behavior (deterrence/rehabilitation)

iv. Deterring others (general deterrence)

v. Prevent commission of additional crimes (incapacitation)

vi. Restitution for victims (retribution and rehabilitation)

vii. Uniformity of sentencing

f. Determinate vs. Indeterminate Sentencing

i. Indeterminate example – Cal. Penal Code § 190(a): “Except as [otherwise] provided…, every person guilty of murder in the second degree shall be punished by imprisonment in the state for a term of 15 years to life.”

ii. Determinate example – Cal. H&S Code: “[E]very person who possesses for sale or purchases for purposes of sale [certain controlled substances]…shall be punished by imprisonment in the state prison for two, three or four years.”

g. Constitutional Limitations on Punishment

i. Coker v. Georgia – Death penalty for rape

1. Rule: Punishments violated the Eighth Amendment if:

a. It makes “no measurable contribution” to the “accepted goals of punishment,” rending it a “purposeless” and “needless imposition of pain and suffering,” or

b. It is grossly disproportionate to the severity of the crime.

2. Holding: Death penalty for the crime of rape is unconstitutional.

ii. Ewing v. California – 25-to-life for three strike law

1. Rule: “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.”

a. Guiding Principles

i. Legislative primacy

ii. Variety of penalogical schemes

iii. Nature of the federal system

iv. Objective factors must guide review of proportionality

b. Test: Does the state have a reasonable basis for believing that its sentencing scheme advances crim justice goals in substantial way?

2. Holding: 25-to-life for three strikes law is not grossly disproportionate given the state’s reasonable basis for punishing habitual offenders

iii. Miller v. Alabama – Mandatory LWOP for minors

1. Rule: The Eighth Amendment right against excessive sanctions requires that the punishment be “graduated and proportioned” to the criminal and the offense. Juveniles’ “lack of maturity and an underdeveloped sense of responsibility” make them “less deserving of the most severe punishments.”

2. Holding: Because mandatory LWOPs “prevent[] those meting out punishment from considering a juveniles ‘lessened culpability’ and greater ‘capacity for change,’” they violate the Cruel and Unusual Punishment Clause of the Eighth Amendment.

2. Statutes & Principles of Legality


i. Conduct must be defined as criminal at the time the conduct was committed

ii. Crimes are conduct defined as such by the Legislature

iii. Statutory Requirements

1. Fair notice to citizens

2. Fairness to citizens

a. No delegation of policy matters to police, judges, and juries

b. Too much discretion raises DPC concerns, civil liberties concerns, and other problems w/arbitrary or discriminatory enforcement

3. Reasonable specificity

a. Understandable to reasonable, law-abiding people

4. Ex post facto – new laws must be prospective, not retroactive

iv. Rule/Doctrine of Lenity: Doubt/vagueness re: statute’s meaning is to “be biased in favor of the accused”

1. Compare with MPC 1.02(3): No lenity principle; ambiguities resolved in a manner that furthers the MPC’s general purposes & purpose of provision at issue

v. Principles of Legality Cases

1. Commonwealth v. Mochan

a. Holding: common law misdemeanor of attempting to “debauch, corrupt, etc.” enforceable through PA statute permitting prosecution of criminal acts at common law that were not separately codified still consistent wi

to the use of narcotics” violates the Cruel and Unusual Punishment Clause.

iv. Status offenses are defined very narrowly

1. Powell v. Texas: Public intoxication statute does not violate CUPC because it does not punish the status of alcoholism, but the act of going into public while in a state of intoxication

v. States may accomplish purpose of certain status crimes by punishing use/intoxication + public place/possession, etc. See Powell, supra.

d. Omissions (“Negative Acts”)

i. Contexts Where Omissions Might Occur – Jones v. United States

1. Statutory duty

2. Status relationship

3. Contractual relationship

4. Voluntary assumption/isolation

5. Where conduct has caused a risk of harm

ii. Barber v. Superior Court (duty to provide medical care)

1. Rule: A physician does not have a duty to continue treatment once it’s been proven medically ineffective

2. Holding: Because the treatment was medically ineffective and the patient (through his spouse) declined further treatment, there was no legal duty breached by the doctor’s intentional and knowingly death-inflicting omission of treatment.

iii. People v. Beardsley

1. Rule: Without an assumption of care (See Jones, supra), while it may be the moral duty of everyone to offer assistance to others in danger, it is not criminal to fail to do so.

2. Holding: The presence of an individual in another’s home does not create a legal duty to take all reasonable steps to save her.

e. Limits on Social Harm

i. Lawrence v. Texas

1. Rule: The DPC right to liberty (including the right to make “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing and education”) applies equally to heterosexual and homosexual individuals.

2. Holding: Because the state’s anti-sodomy law intrudes upon an individual’s right to personal privacy without serving a legitimate state interest, it violates the DPC.

f. Possession Offenses

i. United State v. Maldonado

1. Rule: One has constructive possession if s/he has “the power and intention to exercise control, or dominion and control, over an object not in one’s ‘actual’ possession.”

2. Holding: Given the D’s intent to exercising control (suggesting the drugs go in the drawer, etc.), the transporter’s surrender of said drugs, and the D’s acquiescence to custody thereof, the evidence sufficiently supports a finding of constructive possession.