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Criminal Law
University of California, Hastings School of Law
Little, Rory K.

Goals of Criminal Law
I.        Forms of Utilitarianism
1)       Deterrence – Prevent others from doing something criminal
(i)       General Deterrence – Deter general community to forgo crim conduct for fear of incurring the same punishment. Δ’s punishment serves as a object lesson to the rest of society; D is used as a means to the desired end of a net reduction in crime. 
(ii)     Specific Deterrence – Deter the Δ from future misconduct. 
2)       Rehabilitation – Non-classical variety of utilitarianism; use system to reform the Δ into a person who, upon return to society, will conform his behavior to societal norms
II.      Retributivism
1)       Retribution – Make Δs answer for their wrongdoing; vents society’s outrage and need for revenge.
2)       Protective Retribution – Punishment is a means of securing a moral balance in society. Punishment permits the Δ to pay his debt to society and to return to it free of moral guilt and stigma. 
III.    Others
1)       Message Sending – Gives society fair warning of what the law is and what kinds of conduct will result in criminal liability; Educate the public to distinguish between good and bad conduct and to develop respect for the law
2)       Incapacitation – While imprisoned, criminals have fewer opportunities to commit acts causing harm to society
Different Perspectives on Criminal Law
I.         Feminist Theory (P. Smith) –First, it attacks the idea that the law reflects a neutral, objective and universally fair point of view.  Second, offers an assessment of law from the standpoint of women.  Claims some crimes involve sex-based stereotypes and social values (i.e. laws on harassment, rape, pornography, battery, and prostitution)
II.        Critical Legal Studies (R. Gordon) – Law is not fair, objective, and neutral.  Supporters claim that the substantive law perpetuates discrimination against racial minorities.  They also claim that the law disregards the ways in which members of minority groups understand their interest, human nature, and the role of the government.
Justifications For Criminal Law
I.         Use and Abuse of Freedom – Freedom and law and order are at conflict with each other.
A.       Every system of criminal law must distinguish between:
1)       Conduct that society may disapprove of, but that is recognized as within the actor’s rights
2)       Conduct that should be punished by the state under law
B.       How do we tell what are crimes?
1)       Malum In Se – Wrong b/c it is obvious; Crime that is inherently bad (i.e. crimes involving moral turpitude)
2)       Malum Prohibitum – Wrong because it is prohibited by law because we made it a crime. 
II.        “Harm to Others Principle;” Mill – Some acts have obvious evil consequences that no organized society can tolerate.  These actions stand at the intersection between law and morality.  They are the most destructive and unjustifiable ways in which persons can encroach upon and harm the interests of others.
III.      “3 Justifications;” Feinberg – Vindication of the law; must punish those who violate the law so that others believe that the law really means what is says.  Three harm principles. Criminal law is justified when:
A.       Harm to Others – Preventing harm to others
B.       Harm to Self – Paternalism; Is the gov’t justified in prohibiting conduct because it may harm the individual?
C.       Harmless Wrongdoing – Distinguish between harmful behavior and offensive behavior and consider if offensiveness is an appropriate justification for criminal law
IV.      “Manifest v. Subjective Criminality;” Fletcher – Is a manifestly criminal act a substantive requirement for liability?
A.       Manifest Criminality – Commission of crime is objectively discernible; Need a manifest criminal act for liability
B.       Subjective Criminality – An act is a presumption of criminality, but more is required; Need other evidence
V.       Capacity to Obey
A.       Rule:  In drafting any commercial code, legislators must consider the capacity of persons to obey. 
B.       Two sides of the debate:
1)       Should laws be formulated in such a way that the average person finds it easy to obey?
2)       Should laws set an ideal of conduct, one that may present a superhuman challenge in some circumstances?
C.       Perhaps the law is justified in setting a standard demanding large sacrifice in identifiable but rare circumstances.
1)       Queen v. Dudley & Stephens (1884):  4 men stranded on a life boat.  After 8 days with no food, they decide to kill the cabin boy.  Two of the men join in the plan, and one man dissents.  Δ claimed necessity defense.  Men are convicted for murder.  The fact that they were starving is not a justification.  Necessity is not a justification or defense to murder.  Killing an innocent person to save yourself is different than killing someone who is going to kill you.
o    OId view. Coleridge’s view is motivated by the sense that law should tell society how to behave.  It should set the highest standard for mutual respect and deference. 
o    Modern view. Reflected in MPC: law is hypocritical if it imposes on the actor a standard the judges are not prepared to affirm. Implies law can do little to make us better or worse morally, and insists on std of conduct that allows us to live with one another with all our flaws. 
VI.      Controversial Crimes – Many extensions of criminal law are controversial either because it is not clear what kind of harm they involve, or because they implicate some value other than harm (i.e. offense, social harmony, morality, etc.)
A.       PP –   Crim law defines the boundary when Δ’s conduct is of such a concern that public institutions must set boundaries to private choice and privat action. 
B.       Considerations
1)       Does the conduct involve genuine harm to others, or merely offend the view of some persons?  Is there a shared social morality – or are these diverse moral opinions that may or may not constitute the majority view?
2)       Does the conduct involve harm to others or harm to self?  Is part of function of crim law paternalistic?  Do laws designed to prevent harm to one’s self infringe on freedom?
3)       Does the prohibition of certain kinds of conduct demonstrate a bias of gender, class, or race?
C.       Examples of Controversial Crimes
1)       Unprotected Sex as Assault
State v. Stark (WA, 1992)  Δ tested positive for HIV, did not tell partners and charged with sexual assault under state statute.  Δ demonstrates  intent to inflict harm by P’s knowing he was HIV and was counseled to use “safe sex” methods.  Crim intent may just be knowledge of harm, even if he did not mean to harm his partners.   
(a)     Std. for evaluating statute: if persons of “common intelligence” must necessarily guess at a statute’s meaning and differ as to its application, the statute is constitutionally vague and thus void.
(b)     Held: Reversed; P does not prove that the statute is unconstitutionally vague because any reas. intelligent person would understand that the statute term “expose” refers to engaging in conduct that can cause another person to become infected with the virus. 
2)       Prenatal Delivery of Drugs
Johnson v. State (FL, 1991)  FL statute makes it unlawful to “deliver” narcotics to minors.  Pregnant Δ is convicted under the statute for using cocaine, and passing it to her baby. 
(a)     S. Ct reverses conviction bc no evidence the legislature intended gen drug delivery statute to authorize prosecutions to mothers who take illegal drugs to time of birth.  Up to Legis to consider changing law.  Crim prosecution would also undermine Florida’s express policy of “keeping families in tact.”  
Sources of Crim Law
1)       Common Law: Law developed over time by collection of cases written by judges to form a common law rule.
2)       Statutes: Legislature says what the law should be.  Statutes overrule the CL generally.  CA is often a statutory statue and sometimes a CL state – it has not adopted a lot of the MPC,     
3)       MPC: collection of provisions that looks at statutes to advise and propose ideas to courts and legislators; Finalized in 1960s; departs from CL in many ways; influential in many states in various parts; NY is a surrogate for MPC; can no longer be said to be progressive regarding rape law, even if that might have been said back in 1963.
Constitutional Safeguards
I.         ConstitutionalSafeguards: 1) the legislature may not declare an act to be a crime after the act has been committed 2) crim Δ must be given fair DP of law, 3) crim law must give RP fair notice of what the law prohibits
II.        Elements of a Crime: 1) Advance notice – has to give D advance notice of all elements to be proven against them 2) has to be found by a jury 3) has to be BRD.
III.      Standard of Proof – There is an error rate in criminal law.  There is no way to get 100% accuracy
A.       BRD: Evidence that leaves you firmly convinced. Pursuant to the DP Clause of US Cons (5th Amendment applies in fed system and 14th pertains to states), a person charged with crime is presumed innocent and, to enforce this presumption, the SC held In re Winship that prosecution must persuade FF “BRD of every fact necessary to constitute the crime charged.”
(a)     Winship – 12 year old convicted for theft under a preponder of the evidence standard established by statute.  Appeals arguing that evidentiary standard was insufficient. 
B.       On Appeal: After Winship, the cons standard for sufficiency of the evidence on appeal is whether viewing the evidence in the light most favorable to the prosecution any rational trier of fact could find proof BRD.  Jackson v. VA. The evidence and “all reas inferences therefrom” must be viewed in the light most favorable to the prosecution, not the D.  Meaning that on appeal, all the D’s evidence and argued inferences may be ignored, unless they actually help the gov.  It effectively makes an appellate reversal for evidentiary insufficiency very difficult to achieve.
1)       Apprendi –  Court extended In re Winship to require that the prosecution prove BRD any fact “other than the fact of a prior conviction… that increase the penalty for a crime beyond the prescribed statutory maximum.” Such facts are equivalent to elements and must be proved by the gov. 
2)       Reversing on Appeal: Two ways seem to come up the most,  1) insufficient evidence, 2) bad jury instruction
C.       Reason for Difference – As the Court articulated in Winship, the “proof beyond a reasonable doubt” standard is a way of safeguarding liberty.  It restrains the power of the state when it seeks to impose blame and punish individuals.
1)       Pros – If the std were “preponderance of the evidence,” result in fewer false negatives (letting guilty people go), but more false positives (convicting the innocent).  Thus, the standard safeguards liberty.  “It is better to acquit the guilty than it is to convict the innocent.” higher burden of proof serves to: 1) Prevent mistaken convictions 2) Protect deprivation of people’s liberty 3) Protect people from being stigmatized after going to jail 4) Individual confidence – Gov’t cannot convict us if burden of proof 5) Community confidence – When burden of proof is high, society has more confidence that system is working
2)       Cons – More stringent standard to meet, it may result in more false negatives (letting guilty people go).
IV.      Fair Warning – The Constitutional Due Process Clauses have been construed to require “fair warning” of what is considered criminal.  The content and scope of laws must give reas people fair notice of what the law prohibits, otherwise statute is subject to “void-for-vagueness” doctrine.  Perfect clarity is not required.   Keeler, Lambert, Papchristou, Kolender. 
A.       Fair Notice
(a)     Lambert v. California (1957) – Registration law.  “Actual knowledge of duty to register OR proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction.” Due process is violated if there is no notification of the registration requirement.
2)       Interpretation of Statutes: If Court interprets statute to mean something unforeseeable that would be the same as lack of notice, lack of warning.  + Johnson
(a)     Keeler (CA, 1970). Δ beats up pregnant P, saying he’s going to “stomp out the baby.”  Fetus dies from a cracked skull.  Δ is charged with “unlawful killing of a human being with malice aforethought” under CPC § 187. 
(i)       Legislative intent – Fetus is not a human being bc legislature intended “human being” to mean someone “born alive.”  Furthermore, “judicial enlargement of law would not have been foreseeable and hence the adoption at this time would deny Δ due process of law.”  “When a new penal statute is applied retrospectively to make punishable an act which was not criminal at the time it was performed, the D has been given no advance notice consistent with due process.”
(a)     Now overruled – People v. Davis (CA, 1994) amended statute to include fetus – prosecution has to show fetus progressed beyond stage of 7-8 weeks.  Once legislature added “fetus”, it is within DP to interpret the law and add this requirement. People v. Taylor (CA, 2004) adds mens rea elements – Δ can be convicted of 2nd degree murder of death of 12 week-old fetus even though Δ did not know the woman was pregnangt.  Δ “did not need t

oper (2005) – Unconstitutional to impose capital punishment for crimes committed by juveniles (under age 18).
(g)     Graham v. Florida (2011) – Court held that prohibition on cruel and unusual punishment does not allow Δ’s to be sentenced to LWOP for non-homicide crimes before they turn 18. 
(h)     Alabama v. Miller (2012) – Mandatory sentences of LWOP for homicide crimes are unconstitutional for juvenile offenders. 
The Death Penalty
I.         States/Types – 34 states and the federal government allow the death penalty.  16 states do not.  Methods of execution include lethal injection (32), electrocution (11), lethal gas (6), hanging (3), firing squad (3).
A.       History – At CL all felony convictions resulted in mandatory death sentence.  Later, as divisions of homicide were born, courts had more discretion at using the death penalty.  MPC: No stance on death penalty, let the states decide.
B.       Constitutional Issues
1)       McGautha v. California (1971) [366] – 6-3 – Upheld constitutionality of death penalty.  Untrammeled discretion of jury to use death penalty does not violate Due Process.
2)       Furman v. Georgia (1972) [366] – 1 year later Court held exercise of standardless discretion in capital cases DID violate 8th Am. prohibition against cruel and unusual punishment.  J. Stewart’s opinion is viewed as central. 
3)       Lethal Injection: Baez (2008)(plurality) Court affirms constitutionality of lethal injection.
4)       Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): imposed new limits on habeas corpus petitions that restrict the ability of death row inmates to challenge the cons of their convictions and sentences in fed court.  1) 1 year SOL, 2) state prisoners cannot reverse their judgment unless the state court’s decision is contrary to or based on an unreas application of clearly establish SC doctrine or based on an unreas determination of the  facts.
5)       Mandatory Death Sentences vs. System of Guided Discretion
(a)     Woodson: unconstitutionalized automatic death sentencing. It has to be guided and cannot be fully automatic.
(b)     Gregg v. Georgia – Court endorses guided discretion of when a state does or does not want to apply death penalty. 
(i)       Statute must appreciably narrow people who classify for the DP
(ii)     Give the jury some guidance on how to use discretion and permit jury to render a reasoned and individualized sentence (some structure to figure out what to do, balance the aggravating and mitigating factors)
(iii)    Let the defense use mitigating evidence: mitigators do not need to be prove BRD.
(c)     Aggravating Factors: Ring (2002) – Applying Apprendi 6th Amendment requires a jury to find the aggravating factors necessary for imposing DP. Judge cannot impose DP overriding jury’s recommendation of life imprisonment.  
(i)       In Equipose: Kansas v. Marsh (2006) – statute requiring death penalty when jury det aggravating evidence and mitigating evidence were of equal weight does not violate Cons.
C.       Categorical Exclusions
1)       Roper – juvenilles
2)       Ford – insanity
3)       Atkins – mentally retarded (states in charge of determining who is mentally retarded)
4)       Kennedy v. LA – non-killers, except crimes against the state (espionage, treason, drug kingpin activity); aggravated rape does not count
5)       Tison – negligent helpers
6)       Felony Murder – Usually, death penalty cannot be applied to case where Δ did not intentionally kill (Enmund v. Florida).  However, Tison v. Arizona, sufficient if D “major participation in felony committed, with reckless indifference to human life” observing reckless indifference to value of human life may be as shocking morally as intent to kill.   
D.       Race and the Death Penalty – Death row composition in 1997 was 56.3% white, 42.2% black, 9.2% Latino, .8% Native American, .5% Asian, 1.3% women.  Baldus Study (statistical study on crimes, race, and death penalty) shows race of Δ and victim determines who gets the death penalty.  Although overall blacks and whites got the death penalty with the same frequency, blacks who killed whites were most likely to get the death penalty.  Study coded murders into 3 categories: (i) highly aggravated murders, (ii) mid-range murders, (iii) low aggravated murders.  Race effects are highest for mid-range murders where it is uncertain if death penalty should be used or not. It’s here where the jury exercises the most discretion. 
1)       Racial Discrimination with Jury Discretion
(a)     McClesky v. Kemp (US, 1987):  black Δ shot and killed a white cop in GA, and gets death penalty.  Baldus Study showed generally blacks who killed whites were most likely to get death penalty.  Δ challenges death penalty as violating 14th Am. because of racial imbalance of how death penalty was applied.  Court said that disc effect not enough, need to show disc purpose.  Statistics could not prove a disc purpose.  They prove a likelihood of discrimination but not purposeful discrimination.  Critics say any statitistican would say they show purpose and disc on basis of race.
(i)       Aftermath, seems that McKlesky forecloses idea of race discrimination on death penality.
(b)     Batson v. Kentucky (1987): prosecutor’s use of a peremptory challenge – dismissal of jurors without stating a valid cause for doing so – may not be used to exclude jurors based solely on their race.