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Criminal Law
University of California, Berkeley School of Law
Simon, Jonathan S.



FALL 2016

Crime defined: A crime is an act or omission prohibited by law for the protection of the public, the violation of which is prosecuted by the state and punishable by fine, incarceration and/or restriction of liberty.


ACTUS REUS (bad act) + CAUSATION (result) + MENS REA

(guilty mind) -­‐ DEFENSE (justification, excuses)



Principle of Legality: there can be no crime or punishment without the existence of a law in place (courts do not have the authority to create law)

Ex Post Facto: legislature cannot pass laws that can prosecute based on innocent actions taken before the law was enacted. No retroactive criminalization.

No state shall pass any (in most severe to least)

Criminalize new conduct
Aggravate a crime (from misdemeanor to felony)
Increase punishment
Alter legal rules of evidence

But, Rogers v. Tennessee (US, 2001)
Two-part test for determining if a law passes ex post facto

Did the legislature intend to impose punishment?
If not, is the statutory scheme “so punitive either in purpose or effect as to negate the State’s intention to deem it civil?
Five relevant factors

Does the law inflict was has been regarded in our history and traditions as punishment?
Does it impose an affirmative disability or restraint?
Does it promote the traditional aims of punishment?
Does it have a rational connection to a non-punitive purpose?
Is it excessive with respect to this purpose?

Reasoning: citizens must have awareness of the law in order to comply with it, and law enforcementmust have enough guidance so that arrests don’t become arbitrary.

Rule of Lenity: If plain meaning of statutory language is unclear, ambiguity in the statutory language should be resolved in favor of the defendant

Common/state law: “construe the penal statute as favorable to the defendant as its language and the circumstances of the application may reasonablypermit.”
MPC: “statutes should be construed according to the fair import of their terms, further the purpose of the statute”
Muscarello v. US: Ruled that transporting a gun in the bed of a truck did not violate a statute against “carrying” a weapon. “Carrying to be interpreted as “on the person”

Void for Vagueness (when drafting statute): requires the legislature to use clear and focused language so that citizens will have fair notice of what constitutes a crime, and police will have at least minimal guidelines for enforcement (prevent arbitrary arrests)

Desertrain v. Los Angeles

: Jacobs-Elstein ran a company that went under during the beginning of the recession. When he first was homeless, he slept in his car. He was arrested for violating Section 85.02. Even after he found other places to sleep, he was still arrested for having his items in his car and basically “living” out of it. One officer gave him some information for shelter but he did not find it helpful.
: Vagueness can invalidate a criminal law because it fails to provide notice to enable ordinary people to understand what conduct it prohibits and authorizes and even encourages arbitrary and discriminatory enforcement.
: Ordinance does not provide guidance for what conduct it prohibits. Does not define living quarters or determine how long someone has to live.
Holding: Ruled for the plaintiffs. More specifics are needed.

City of Chicago v. Morales (US, 1999): Law prohibited “being or being with a gang member (b) in a public place (c) loitering or lacking purpose (d) and disobeying request by police to disperse. Statute ruled unconstitutional because it is too vague

Note Scalia dissent that for this particular “crime”, the people who will suffer will be people withinthe community who will be intimidated and deprived of liberty by loiteringgangs

Vagueness Counterarguments

How will the statute work to limit undue surprise?
What is the breadth of conduct prohibited?
Do any elements provide a check? Are some elements precise enough to provide clarity?
Does mens rea provide a check?

Compare MR possibilities and their effects: SL may have more vagueness

Quadrants of Jurisprudence:

Raw Law
Doctrinal Law
Law in Social Science
Fundamental Values and Principles

Prosecutorial Discretion: prosecutor can choose whether to bring charges and which charges tobring

D. Rationales of Punishment

Legal Punishment Defined: Suffering purposefully inflicted by the state because one of its law has been violated.

Utilitarianism: Goal is optimizing happiness, eliminating harm to society, so punishment should only be exacted when there is some “good” achieved from doing so.

: punishment as an incentive to refrain from crime

Using punishment to set an example that society will not tolerate criminal behavior and deter others from committing the crime in thefuture
Using punishment to deter the defendant from committing the same act in thefuture

The more uncertain the prosecution, the more severe the punishment shouldbe
“Broken Window Effect”, visibility of crime leading to more crime + social influence

: imprisonment for the purpose of removing the offender from society such that he cannot harm society, constraining criminal impulses

Argument against imprisonment: prison overcrowding phenomenon (lack of medical attention, insufficient nourishment, inadequate staff, danger to prison staff, financial concerns), difficulty in determining recidivism.
Argument for: Phillip Garrido (insufficiency of parole supervision as correctional solution),“reasonable accuracy” in determining recidivism

Existence of repeat offenders
Once off the street, offender will not immediately be replaced by a new recruit

Rehabilitation/Reformation: Punishment intended to help the defendant recognize the wrongdoing, repent, and reform his character so that he can ultimately return to society as a law-­‐abiding and productive citizen.

The need for rehabilitation is a measure of deviation from society (divergence in committingcrime from how a reasonable person would act.

: society has a moral obligation to punish criminals who are blameworthy. Independent of any external effect of the punishment, the defendant must suffer for the wrongdoing and atone.

With an eye towards satisfaction and psychological benefits that punishment can bestow onthe aggrieved party and society

Michael Moore

Moral Desert: Punishment is justified because the offender deserves to be punished for the wrong committed. Hypothesizes scenarios where deterrence would be obsolete (thief wins lottery, sexual predator become impotent)

Joel Feinberg

Symbolism of Punishment: Punishment expresses the societal condemnation and moral disapproval of the criminal act

Herbert Morris

Social Contract theory: Society comprised of benefits and burdens. In committing a crime, an offender avails himself of the benefits but refuses to assume the burden to abide by the law. Punishment restores equilibrium

Paternalistic Theory: Punishment should further the potential of the wrongdoer to do good through recognition of the act, guilt, rejection of future tendency to commit wrong, and finally restore dignity.

Jean Hampton

Relative Value: By committing a crime, the offender asserts that his rights and goals outweigh a victim’s. Punishment reaffirms the victim’s value.

Alternative Forms of Punishment (not utilized in theUS)

Monetary fines: Places a more concrete value on the “debt” that must be repaid. More symbolic transfer of value.
Restitution: Monetary fine paid to thevictim
Restorative Justice: community service or cooperative process with family ofvictim

Deterrence and Retributivism as the prima

ach. Imposing life w/o parole sentences on juvenile nonhomicide offenders is fairly rare.
: Imposing a LWOP sentence on a juvenile for a nonhomicide crime constitutes a cruel and unusual punishment. States must give juvenile defendants a chance to be released based on their growth and possible rehabilitation. A juvenile can be put behind bars for good, but the State cannot make that judgment at the beginning.
: Graham’s sentence is unconstitutional.

Miller v. Alabama, USSC, 2012

: The SC asserted that juveniles could not be given LWOP sentences that require mandatory LWOP sentences upon conviction; instead, the sentencing court must engage in individualized assessments of the punishments. Mandatory penalty schemes prevent the sentencer from taking into account the youth of juveniles. Cited Woodson as another case where a statute mandating a death sentence for first-degree murder violated the 8th amendment. Children cannot be treated as miniature adults. Youth must be considered in LWOP and death sentence case
: Miller and Jackson were two 14-year-old convicted of murder. Miller’s parents neglected him and he attempted suicide four times. They were automatically sentenced to the mandatory minimum of LWOP.
: Miller and Jackson are not sentenced to LWOP.
: Does a mandatory punishment of life without parole for those under the age of 18 at the time the crime is committed violate the Eighth Amendment’s prohibition on cruel and unusual punishment?
: 8th amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders

Prevents statutes that criminalize status (addiction,homelessness)

5th and 14th Amendments: Due Process (“State shall not deprive any person of life, liberty or happiness without due process of law”)

Burden of Proof “Beyond a Reasonable Doubt”

defendant is entitled to a presumption ofinnocence
Policy: As a society, we are more willing to tolerate erroneous acquittals than erroneousconvictions

Statutes should have reasonable clarity to give citizens fair notice of crime (Void forVagueness)
Decisions about which evidence can be permitted at a jury trial are a Due Processconcern




(a) Break out elements of the crime

(b) Assign “conduct”, “circumstance”, or “result” to reach one

ACTUS REUS = Conduct + Circumstance + Result

Definition of a criminal act: past voluntary wrongful or potentially harmful conduct specified in advance by statute
Common Law: physical, voluntary action that is morally obnoxious or harmful

1. Voluntary Act

a) MPC on Voluntariness

(1) (2) The following are not voluntary acts

(2) A reflex or convulsion

(3) A bodily movement during unconsciousness or sleep

(4) Conduct during hypnosis or resulting from hypnotic suggestion

(5) A bodily movement that otherwise is not the product of the effort or determination of the actor, either conscious or habitual

No Involuntary Acts

People v. Newton (NY, 1973): Man on a flight

from Bahamas to Europe arrested in NY during emergency landing for carrying a firearm, ultimately released because he had not entered NY voluntarily -­‐ it was interruption of flight out of his control.