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

Criminal Law
Fall 2015
 I. Introduction to Substantive Criminal Law
A. Principles of Criminal Law
1. A crime is an act the community has labeled as deserving of public moral condemnation.
            a. But whose norms do they reflect? Race, gender, culture, class issues
            b. Instructive to public on how to act according to norms, people expected to know the law
            c. Prevents harm/dangerous behavior 
2. Magic formula for a “crime”? – Where to draw the line?
a. Knuckleheads?
b. Should criminal law be normative (aspirational) or descriptive (based on the morals we already have)?
c. Should criminal law be individualistic/subjective or uniform/objective?
3. How to define crime in a way that gives enough notice and accurately reflects what we’re trying to punish?
a. Guilty mind (mens rea)
b. Voluntary conduct (actus reus)
c. Moral blameworthiness
B. Purposes of punishment – Public outrage as tied to outcome as tied to severity of punishment
Common Rationales for Punishment (U.S. has a mixed system):
1. “Retributive” – Kant – wrongdoers deserve punishment. Wrongdoing creates a moral disequilibrium in society; punishment brings this back to equilibrium. – Victim oriented, proportionality, backward looking
a. Just desserts – Punishment is deserved when a wrongdoer freely chooses to violate society’s rules
               i. Vengeance – harm has been caused, regardless of intent (“cousin” of retribution)
b. Punishment should be proportional to moral blameworthiness of the act, rather than future benefits (util. rationale)
a. Society’s goal should be reducing overall human suffering, not causing more (two wrongs don’t make a right)
b. Retribution legitimizes hatred and anger
c. Founded on emotion, not reason – it’s irrational
d. Punishment should be forward-looking – seeking to improve society – not backward-looking
e. Too objective – no mitigating factors
In the middle:
Social utility/cohesion (blend of retributivism and utilitarianism)– stops private vengeance and fosters social cohesion
i. Social cohesion – send a moral message for the sake of keeping society functioning well
2.  “Utilitarian” – Punishments is expected to produce good consequences and maximize net happiness of society; punishment should only inflicted when it will result in the reduction overall pain and suffering by reducing future crime.  – forward looking, diversion (prevent repetition), increasing overall societal happiness
Critique: Kant's position – you should only be punished for the things you are morally blameworthy for as an individual (shouldn’t punish for the benefit of others or with a forward thinking outlook to future crimes)
Deterrence – A reason we make things crimes  –> give people incentives to not do harm or educate themselves
a. Specific – specific to the offender and prevent D from committing crime again/future misconduct
b. General – to send a message to other potential offenders and society as a whole – D’s punishment is a lesson to others
c. Rationale: betters society by preventing future harm; avoids evil of punishment for its own sake
d. Critique: cost-benefit analysis – punishment must be severe enough to outweigh benefits of crime; assumes offender rationally calculates; assumes offender is aware of cost & law; how to estimate benefit to society/predict future criminality? ; disproportionate impact on poor/minorities 
Incapacitation – Separates D from community so D can’t commit crime again
a. Punishes offender, demonstrates society’s disapproval (creates social cohesion, norms), treatment/education
b. The Fall of Crime in the 1990s
i. Huge crime wave in 1970s-1980s
ii. Huge crime decrease in mid 1990s-present. WHY?
– Mass incarceration worked? – Taking offender out of society – no opportunity to commit crime again
– Community policing innovations –
e.g. Zimring on NY –“hot spot” policing (authorities should pay less attention to individual criminals and more attention to the hot spots where they operate)
NOT “broken windows” (flood marginal neighborhoods with “order maintenance” enforcement, making sure it doesn’t slip into a chaotic spiral) or increased prison terms?
– Crime kept increasing in 1980s even as prison industrial complex got larger – when one D is in prison, a new person fills his role (especially evident in gangs/organized crime)
– Waning of crack epidemic of the 1980s – Legalized abortion
c. What is the downside of putting everyone we think will commit a crime again in prison for 20 years
i. Expensive
ii. Social consequences of punishment not matching the crime (tearing of moral fabric)
iii. Harden – exposing people to hardened criminals
iv. Displacement of large segments of the population – Creates environment potentially leading to more crime (destabilizing families, stigma for offender)
v. Equity – selective incapacitation – danger of discrimination, punish for crimes not yet committed, society costs – loss of people, injuries suffered in jail
a. Attempting to reform the offender, built in optimism for ability of human transformation and prevent future crimes by reforming the wrongdoer; increase social cohesion by bringing the D back into the right 
b. Critique from the right
i. Not going to deter
ii. Won't fix tear in moral fabric of society caused by someone's crime
iii. Matter of just deserts – he deserves to suffer
iv. Criminals can’t be reformed
v. Costly and resource intensive
c. Critique from the left
i. CS Lewis: “When we cease to consider what the criminal deserves and consider only what will cure him, we have tacitly removed him from the sphere of justice altogether.”
ii. Highly paternalistic/Something perverse about gov't/society “curing” people's ills
iii. Assumes problem is individual not system 
What judges today are supposed to consider in sentencing…
18 U.S.C. § 3553 – Imposition of a Sentence
“To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense”
Promoting respect for the law
Social cohesion
Just punishment for the offense
o afford adequate deterrence to criminal conduct
Protect public from further crimes of the defendant
Specific deterrence
To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner…
Utilitarian – rehabilitation
II. The Criminal Justice System
            A. Mechanics and Realities of the criminal justice system
1. The Players: Police – Prosecutors – Defense attorneys – Judges – Juries – “Corrections”: Prison officials (BOP, DOC, private corporations); Supervision officers (parole, probation)
                        2. Dual

entence, rather than punishing the crime
4. Prosecutors have right/discretion to choose whether to investigate and prosecute individuals – no judicial capacity to supervise or compel
Inmates of Attica v. Rockefeller (U.S. Court of Appeals, 2d Circuit, 1973) p.1118: prison guards killed inmates while suppressing riots
5. Victims rights/role: Vs have a right to be informed about the course of the prosecution and discuss with the P, but not to direct or compromise prosecutorial discretion
D. Judicial discretion/sentencing
1. Trends in punishment: early sentences were indeterminate – actual time of release dependent on parole board’s estimation of rehabilitation; in the 1970s indeterminate sentences believed to be discriminatory, movement towards fixed sentences, reduced discretion of judges/parole; move towards determinant sentencing
a. “Truth in Sentencing” Movement: The Pushback Against Judicial Discretion
b. Mandatory minimums – Were intended to decrease racial disparities but had the opposite effect because of charging decisions that prosecutors have control over
2. Sentencing guidelines: use offense level and criminal history of offender to determine sentence (no longer binding), but generally still followed
a. U.S. v. Jackson p.130: Selection of a sentence within a statutory range is essentially free from appellate review. [Considers purposes of punishment – deterrence had failed (robbed bank for fifth rime 30 mins after release for the fourth one), incapacitation necessary to prevent future crime BUT moral blameworthiness? – had not hurt anyone and potentially bank robbery is “a young man’s crime”] 3.  Absent sentencing guidelines, a judge has nearly unlimited discretion to sentence a defendant within applicable statutory ranges – in some states there are no guidelines – judges have massive amounts of discretion
4. U.S. v. Booker (2005) – mandatory sentencing found unconstitutional – now all sentencing guidelines are advisory
a. Sentencing guidelines, in the 30+ states and fed systems that have them, are now only advisory, not mandatory
b. Mandatory minimums are still mandatory for judges
                                    c. Pros of Sentencing guidelines: increases consistency; decisions less arbitrary – fairness, predictability
d. Cons: no individual judgments; less rehabilitative; shifts power to quasi-judicial official (prosecutor); leads to more disproportionately high sentences (ignores soft factors)
5. Shaming conditions in a sentence can be reasonably related to the purpose of rehabilitation, and are thus permissible under the Sentencing Reform Act (U.S. v. Gementera p.133, I stole mail sign)
6. Policy: Reasons for letting jurors know about possible sentence for crime?