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


§  Common Law:  Judge developed case by case principles
·         Pennsylvania
§  Statutory perspective:  Legislature decides to define what a crime is, its elements, and the penalty
·         Model Penal Code
·         New York

a)    Actus Reus (Act)
b)    Mens Rea (Guilty Mind)

1.    General Deterrence:  Deterring persons other than the criminal from committing crimes by instilling fear of incurring consequences and same punishment.
2.    Specific Deterrence:  Deter the criminal from committing crimes in the future, such as by incapacitation. 
3.    Rehabilitation
a)    Alternative sentencing structure, theory that imprisonment will reform a criminal. 
b)    Problems:  lack of resources
4.    Retribution
a)    Victim focused theory that criminals should pay for their acts.
b)    Allows society to vent its outrage and need for revenge
5.    Message Sending/Reinforcement of Values
a)    Give society and non criminals fair warning of the law and what conduct is culpable.
b)    Educate the public on what is appropriate conduct
c)    Establishing cultural norms
6.    Incapacitation
a)    Individuals in prison cannot commit criminal acts on society. 
1.    John Stuart Mill, On Liberty (1859) – Two Spheres of Distinction
a)    Punishment when individual harms others and not himself.
b)    Conduct that we may disapprove but that is recognized to be within our rights
c)    Conduct that should be punishable by law
2.    Joel Feinberg, Harm to Others
a)    Punishment when individual harm others is not the only valid principle for determining legitimate invasions of liberty.
3.    George Fletcher
a)    Objective Test:  Punishment and guilt should be measured by the amount of harm caused
b)    Subjective test: Punishment and guilt should be determined by the intentions of the actor. 
c)    Are we more concerned with rectifying actual harm or with identifying and punishing those who act with the INTENTION of causing harm regardless of the result?
1.    Malum in se: bad in itself, always contrary to the social mores of a society
a)    Ex: murder, rape, theft
2.    Malum prohibitum: bad because it is prohibited and not obviously bad. 
a)    Parking in red zone
v  The Queen v. Dudley & Stephens
§  Facts:  Lifeboat case, drawing of lots, killed the kid Richard Parker because he was the weakest. 
§  Sentence: 6 months or so, commuted sentence.
§  See chart below for what was discussed:

Common Law
Necessity is not a defense to murder

MPC § 3.02. Justification Generally: Choice of Evils
1)  Allows a lesser evil (crime) to be committed to prevent a greater evil (possible crime or greater harm) from occurring.  
2) If you can persuade a jury that impeding harm was greater
Consent is not a defense to murder
MPC § 2.11 Consent
a.       Consent may be a defense unless
i.            Serious bodily harm is involved
ii.            Person is legally unable to give consent

MPC § 2.09 Duress
a.       Duress is a defense when defendant was coerced by the use or threat of unlawful force; OR
b.      Defendant unable to resist

See Cartoon Handout “Fair is fair, Larry..We're out of food, we drew straws – you lost.” 
1.    Unprotected Sex as Assault
v  Stark: unconstitutionally vague statute
·         Facts:  HIV positive man has unprotected sex with women.  Convicted of assault.  “If I'm going to die, everybody's going to die”
·         Δ's Argument:  Statute was unconstitutionally vague for not defining “expose” and specifying that it was a crime to transmit HIV to another “human being”
·         Statute:            “A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . with intent to inflict bodily harm, exposes or transmits human immunodeficiency virus.”
·         Actually has HIV
·         Exposed to someone with HIV with the
·         Intent to commit bodily harm. 
·         Rule:  Guilty.  Do not need to prove that defendant subjectively knew what the statute meant, but what a reasonably intelligent person would understand the statute to mean. 
·         Common Law: Presumption that people intend the natural and presumable consequences of their actions. 
·         State Statutes: A majority of states have enacted HIV specific laws criminalizing the intentional or knowing transmission (or risk of transmission) of the HIV virus. 
2.    Prenatal Delivery of Drugs
v  Johnson: legislative intent of statute
·         Facts: Mother took drugs twice before birth, drugs delivered through umbilical cord just before cut.

doubled if the motive for the crime was racial bias.  Racial bias was to be found by the judge at sentencing.  
Ø  Rule: any fact that legislatively increases the statutory maximum sentence has to be treated as an element under Winship and proven B/R/D. 
§  Violates jury to have facts found by the judge
·         Criticism:  it is a fact of sentencing, not a fact of the crime, not an element of the crime.
v  Almendorez-Torres (1998)
Ø  Prior conviction does not have to be considered an element
§  Apprendi does not overrule Almendorez-Torres
·         Apprendi says all elements, except prior conviction
§  If you can create a factual dispute regarding prior conviction, then you might be able to get the same treatment as Apprendi and the prior conviction wouldn’t automatically increase sentencing.
v  Blakely (2004)
§  Facts:  Involves mandatory guidelines in Washington, similar to the federal scheme. 
Ø  Rule: Facts that increase the sentence, even within the legislative proscribed range must still apply the Apprendi standard.
§  Criticism:
·         Allows you to bring in extraneous bad facts that you could not bring in before
·         Prior convictions, racial motivations, bias can all be brought in
v  Booker (2005)
§  Facts: extraordinary acceleration to Supreme Court.  Breyer convinced Ginsburg to dissent on the remedy, who was the swing vote in Blakely. 
§  Federal guidelines are unconstitutional and Blakely decision does not apply to the federal system.
Ø  The remedy: leave the guidelines in place and give the judge discretion
·         Figure out the range, figure out how it falls into the statutory guidelines, announce it, and say you don’t have to follow it. 
1.    Goals
a)    Finding resources and processes to compensate victims
b)    Imposing punishment that will compel offenders to correct or undo harm they caused
c)    Insuring victims be allowed to participate in the litigation process
d)    Giving victims a choice in determining punishment