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





Why punish? Who should be punished? How much punishment?


· Looks forward –justified by future benefit to society – means to an end.

· Jeremy Bentham à Purpose of punishment is to promote happiness in community (useful punishment)

· Assumptions: people make rational, cost-benefit analyses (problems: heat of passion, ignorance of law, bad cost-benefit understanding)

· Problem when taken to extreme: unjust punishment for individuals

· Goals:

1. Specific deterrence: to the offender. Offender must know of rule, perceive cost of violation > benefit, and bring that knowledge to bear.

2. General deterrence: to society at large

3. Incapacitation:

§ Pros:

· Prevent offender from doing more harm.

· Dilulio: cost of incarceration outweighed by money saved to society by preventing repeat criminal acts.

§ Critiques:

· Incapacitation’s usefulness might be outlived by sentence.

· Assumes that criminals will continue to commit same number of crimes per year for the rest of their lives

· Gang crimes à prisoner just replaced by other member

· Hardens non-violent criminals (finishing school)

4. Rehabilitation:

§ Medical model: criminals are sick, sentence conditioned on cure

§ Critiques: too expensive, no deterrent message, longer sentence than deserved in the name of rehabilitation. Moral blameworthiness ignored.


· Looks backwards – blameworthiness of wrongdoing. Punishment = end in itself.

· Assumptions: Free will, people should be morally accountable for actions

· Punishment usually tied to culpability, but sometimes just for retaliation

· Problem when taken to extreme: societally inefficient punishments

· Kant: punishment only justified by guilt of crime, not to promote another good. Penalty should only correspond to the offense committed.

· Pros:

o Public vengeance, social cohesion, secures moral balance in society

o Deters private vengeance

· Cons:

o No return on social harm – doesn’t make up for injury to society

· Positive vs. Negative retribution:

o Positive: Moral guilt is sufficient to punish (must punish the guilty)

o Negative: Moral guilt is necessary to punish (must not punish the innocent, must not punish disproportionately)

Regina v Dudley (DUDLEY): (Ds kill/eat boy on lifeboat. Guilty of murder; later commuted)

1. Utilitarian argument: allowing killing out of necessity or temptation will be a legal cloak to all sorts of crimes. This would suggest a severe sentence.

2. Retributive argument – morality and law not separate. Ds morally culpable for what they did, no matter what good resulted. More lenient sentence.


Criminal Justice Questions

Restorative Justice Questions

What law was broken?

Who was harmed?

Who broke it?

What are the needs and responsibilities of all affected?

What punishment is warranted?

How do all affected parties together address needs and repair harm?

Criminal Justice Notions

Restorative Justice Notions

Crime is a violation of the law and the state.

Crime is a violation of people and relationships.

Violations create guilt

Violations create obligations

Justice requires the state to determine guilt (blame) and impose punishment

Justice involves victims, offenders, and community members in an effort to repair harm.


· Actors (note how decentralized):

o Police (municipal. discretion when to arrest)

o Prosecutors (county, state, federal. discretion of what and when to prosecute)

o Indigent defense counsel (court-appointed, contract, PDs)

o Judges (county elections/governor appointments)

o Corrections:

§ Jails (county) and Prisons (state/federal)

§ Probation (instead of incarceration), Parole (conditional release)

§ Pre-trial release: money bail. Often keeps poor locked up.

· Plea Agreements:

o Features:

§ Guilty pleas account for 90% of convictions. Only 4% go to trial.

§ If prosecutor fulfills his end of the bargain, D can’t withdraw plea

§ No Contest Plea neither admits nor disputes charge

§ Unpredictability of jury trials = bargaining chip for guilty pleas.

§ Longer sentences if proven guilty at trial than if pleading out.

§ Prosecutors can only dismiss counts and recommend sentences

o Pros: A way to get around mandatory minimums

o Cons:

§ Lots of people who would win at trial are pleading guilty

§ Unfair sentencing

§ No juries

§ Unless plea is “binding” D may not get exact sentence that prosecutor offers to pursue; ultimately up to judge

· Prosecutorial discretion:

o Features:

§ If there’s evidence to prove crime beyond reasonable doubt, prosecutor usually (but doesn’t have to) decides to go to trial

§ Must have probable cause to file charge

§ ABA-proposed standard: dismiss charges when you “reasonably believe that proof of guilt beyond reasonable doubt is lacking.”

§ Victims can’t bring prosecutions or control a charge. Loopholes: victim-funded prosecutions, state Ks w/private prosecutors.

· Sometimes prosecution goes on despite victim’s desires

· Offense is against state, not against person

· Definition of Victim: victim’s spouse, parents, children, sibling, etc. (Unless that person is perpetrator)

o Pros:

§ Saves money from not prosecuting every case

§ Prevents criminals from finding loopholes in bright-line rules

· Trials:

o Prosecutor has burden of proof beyond a reasonable doubt

o Must be found for every element of a crime per SCOTUS

o Jury decides unless D asks for a bench trial (can waive right to jury trial)

Inmates of Attica v Rockefe

though not given instructions about doing so.

3. Nullification instructions would invite chaos into the jury system

4. Most states say judges cannot give jury instructions about nullification.

Fernandez: OK for judge to respond “no” when jury asks if it has power to acquit

Engelman: OK for judge to tell jurors they must immediately report any juror who wants to nullify

Thomas: If black juror favors acquittal both because 1)doesn’t want to criminalize black D and 2) doesn’t think gov’t evidence was reliable, NOT OK to dismiss because reasons ambiguous

· Parting thoughts on discretion:

o Jury discretion has become less important as jury trials have decreased, and crimes have become more statutory w/ stricter liability

o Judicial discretion has been somewhat curtailed by mandatory minimums and non-binding sentencing guidelines.

o Prosecutorial discretion is broader and more important than ever. Prosecutors now arguably the de facto adjudicators of criminal justice system


· How long should the sentence be? What kinds of punishment are acceptable?

· Judicial discretion: judges decide within range of guidelines. Subject to appeal.

US v. Polizza: Abuse of discretion for trial judge to inform jury of sentencing consequences of verdict absent unusual circumstances.

United States v Jackson (JACKSON): (guy with multiple prior felonies gets another – bank robbery – sentencing range is “no less than 15 years.” Sentenced to life. Upheld.)

1. Judges have discretion to sentence within the statutory range for an offense

2. 8th Amendment sets high bar for “cruel/unusual punishment” re: sentencing

3. Judges really do invoke concepts of retribution, specific /general deterrence, and incapacitation in determining sentence length

4. Posner dissent: neither utilitarian (bank robbery is a young man’s game; deterrence served by shorter sentence) nor retributive reasons (no indication that violent) justify this sentence

United States v Gementera (GEMENTERA): (guy stole mail, had to wear “I stole” sign by post office. Not excessive b/c of prior history, and legitimate means to achieve rehabilitation)

1. Did not violate Sentencing Reform Act b/c it was reasonably necessary to deter, protect public, or rehabilitate based on circumstances.

2. Okay b/c reintegrative shaming (not disintegrative or stigmatization) à community shaming (sign) with acceptance into community (talking to students about crime)

3. Shaming limited temporally and spacially