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

Criminal Law Outline
I. Purposes of Punishment
–          General Objectives in Sentencing
–          (a) General objectives of sentencing include:
o   (1) Protecting society;
o   (2) Punishing the defendant;
o   (3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;
o   (4) Deterring others from criminal conduct by demonstrating its consequences;
o   (5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;
o   (6) Securing restitution for the victims of crime; and
o   (7) Achieving uniformity in sentencing.
–          If conflicting purposes of punishment- use balancing approach
o   Judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case.
–          Utilitarianism v. Retributivism
o   Retributivism (Kant)- punishment is justified on the grounds that wrongdoing merits punishment
o   Utilitarianism (Bentham)- Only future consequences are material to present decisions- Optimal level of crime prevention
–          Deterrence
–          Incapacitation
o   Successful if 3 conditions are met (Wilson, Thinking about Crime)
§ Some offenders must be repeaters
§ Offenders taken off the streets must not be immediately and completely replaced by new recruits
§ Prison must not sufficiently increase post-release criminal activity to offset the crimes prevented by their stay in prison
–          Rehabilitation
–          Retribution
o   Gives you an ability to lay out what society believes (Feinberg, Doing and Deserving)
Distinguish offender?
Model system
Correct bad acts through punishment
Individual is blameworthy
There was an intentional decision to break the law
Can calculate what a retrib sentence should be
Yes, undertook crime as an individual and therefore punish as an individual
Economic- tied to harm
Determinate sentence (no early release)
More uniformity in sentencing
Punish them enough to make them feel guilt
Prevent offender from re-committing by locking them up
Criminal will re-offend
No replacements
Prison does not increase offender’s propensity for crime
Maybe, more likely broad generalizations as to who commits most crimes
Disconnected from severity of crime, under punish a one-time offender
Prevent offender from committing new crimes
People can change
Prisons are the place to change people
Yes, lay out a sentence appropriate for the individual
Intermediate sentences (leave it up to judge, programs
Prevent future crimes by deterring others
People are deterrable
People who commit crimes weigh consequences (act rationally)
No, punish in a general way because you think that people are deterred by the same thing
Quick, harsh, public, certain and soon after offense
A. Proportionality
Ewing v. California (2003) pg. 75- Incapacitation
–          Issue: Does CA’s 3 Strikes Law violate the 8th Amendment?
–          Rule: 8th Amendment does not require strict proportionality between crime and sentence. Rather it forbids only extreme sentences that are grossly disproportionate to the crime
–          Take-Away points: Deference to state legislature at determining what sentencing goals to pursue
Harmelin v. Michigan (1991)- pg. 80
–          Issue: Can you get a LWOP of a first time offense of possessing 672 grams of cocaine?
–          Rule: different legislatures have different goals from justice system, since S.C. does not have clear objective standards to distinguish between different sentences, cannot distinguish AND 8th Amendment does not require strict proportionality
B. Sentencing
–          Majority of sentencing: grid/matrix
–          Truth in sentencing- abolish parole
–          Real offense sentencing: based upon both conviction and non-conviction (alleged criminal conduct for which formal convictions have not been obtained)
–          Guideline system: try to give some uniformity in a jurisdiction’s approach to a law for similar offenders who commit like offenses
–          Charge offense system: Assess a person’s culpability individually, big incentive to plea
Apprendi v. New Jersey (2000) pg. 91
–          Issue: Whether an enhancement in sentence based upon a racially motivated crime that enhances the maximum sentence needs to be made by a jury and proved BRD or whether a judge can do it
–          Rule: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt
–          Take Away Points:
o   Forces the state legislatures to state the true max penalty for crimes
o   Could shift sentencing enhancement to the offense itself, making it an element of a crime
–          Facts: Blakely pleaded guilty to kidnapping his estranged wife, statutory max was 10 years, judge was authorized to identify certain factors that might elevate the sentence between 53 months and 10 years
–          Ramifications:
o   Judge must afford the accused an opportunity to have a jury trial on the additional facts that support the departure and to have the facts proved beyond a reasonable doubt. If proved, the judge may authorized discretion
o   Threw out WA state sentencing guidelines
Booker- US Sentencing Guidelines
–          Ramification: Take guidelines as advisory and not mandatory, thus court does not have to follow them and they are okay
II. Chapter 2: The Criminal Act
–          Common law- criminal punishment requires that the individual have committed an act and that the actus reus (bad act) is a necessary element in the equation establishing criminal liability
–          Generally law requires affirmative act/omission and we don’t punish thoughts alone
–          Weisselberg’s Element of a crime
o   Actus reus (act/omission) +
o   Mens rea (mental state) +
o   [Attendant Circumstances] +
§ Prohibit having a firearm that is loaded- attendant circumstance (not really the act itself but something necessary to the charge
o   [Causation] + [Result] =
o   Criminal Liability
§ (& punishment, unless excused or justified)
–          Act Requirement
o   (1) past
o   (2) voluntary
o   (3) wrongful
o   (4) conduct
o   (5) specified
o   (6) in advance
o   (7) by statute.
Proctor v. State (1918)

n who brings a gun on a plane in a country where it is not illegal but they land in the US where it is illegal be convicted of a crime for having the gun in a country he didn’t know he’d end up
–          Holding: No voluntary act, no crime
Martin v. State (1944) pg. 132
–          Issue: Can a person who got drunk at his home and the police take him from home and pull him on highway then arrest him for being drunk in a public place
–          Holding: An accusation of drunkenness in a public place presupposes voluntariness
People v. Grant (1977)- pg. 134
–          Issue: Grant was at a bar, fight broke out between other people, police went to arrest another guy, Grant attacks police officer, later suffers grand mal seizure, D has psychomotor epilepsy, court must determine whether or not he could control his actions
–          Holding: When there is an issue regarding an involuntary action due to a medical condition should be in the jury instructions
Involuntary Acts
–          Reason for voluntary aspect of criminal prosecution
o   Nothing would more surely undermine the individual’s sense of autonomy and security than to hold him to account for conduct that he does not think he can control
People v. Newton (1970)- pg. 139
–          Holding: D should get a jury instruction on automatism after black panther who attacked cop was shot in the stomach which can lead to involuntary violent actions
Prohibition of Status Crimes pg. 140
–          Punish people for what they do not who they are
Robinson v. CA (1962) pg. 140
–          Issue: Is a statute that makes it a crime to be addicted to narcotics unconstitutional
–          Holding: Yes, holding someone responsible when they may not have possessed or used narcotics in the state is a violation of the constitution
Johnson v. State (1992) pg. 145- Statutory Construction
–          Issue: Whether a statute that allows criminal prosecution of a mother who ingested a controlled substance prior to giving birth for delivery of a controlled substance to the infant during the 30-90 seconds after the infant’s birth before the umbilical cord is severed
–          Legislative History: Legislature never intended to prosecute drug-addicted mothers
Statutory Interpretation
–          Plain meaning
–          Rule of lenity (construe statute strictly- tie goes to a defendant)
–          Ordinary language
–          Legislative History
E. Legality
–          Legislativity- when is the power to define criminal law confined to the legislature
–          Prospectivity- cannot define crimes retroactively
United States v. Hudson and Goodwin (1812)- pg. 149