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Criminal Law
University of California, Hastings School of Law
Rappaport, Aaron

Criminal Law Outline
Rappaport – FALL 2007

I. Punishment
1.Justifications for Punishment
a.Utilitarianism
i. General
1. Only future consequences are material to present decisions.
2. Justified if good outweighs bad—punishment promotes social welfare
a. Keep criminals off the streets – better for society
3. Purpose of laws is to maximize net happiness of society
a. “Greatest happiness for the greatest number”
4. Do not advocate punishment unless believe it will provide an overall social benefit
ii. Utilitarian Means:
1. Deterrence:Send signal to the community / individual by punishing someone now – Deter Future Crime.
a. Diminishing marginal utility of punishment
i. As punishments increase deterrent effect decreases
b. White collar crimes are susceptible to deterrence
c. Deterrence is minimal with drug addicts
2. Incapacitation: When people are in jail they cannot commit crimes
a. What about crime in prison?
b. What if people will commit more crimes after being in prison?
c. What about the Replacement effect one in-one out?
i. Market driven crimes
ii. Organized crime
iii. Drug crimes
d. Would they even have committed another crime had they not been incarcerated?
3. Rehabilitation: Use the penal system to reform prisoners – less crime in society upon release
a. For most of the 19th and 20th Cen. It was the dominate theory
i. People are inherently good, they have been corrupted. Through isolation we can reform them, reprogram them.
b. Idea gets attacked in the 1970s – does it work?
i. Most policy shifted to more punitive punishments.
ii. Drug treatment has actually been shown to work.
iii. Problems of Utilitarianism:
1. Reduced people to machines- ignores their human rights
2. Punishment of an innocent person is for the good of the whole (Make an example of them)
3. Minority report problem – Arrest before crime in order to benefit society.
4. Can criminals really be reformed?
b.Retributivism
i. General:
1. Looks Backward: justifies punishment solely on the basis of the voluntary commission of a crime
2. The severity of the appropriate punishment depends on the culpability of the D.
3. Retribution involved both a limiting principle (there must be no undeserved punishment) and an affirmative justification for punishment (punishment must be justified by desert)
4. Deserved when wrongdoer freely chooses to violate society’s rules – Based on premise that humans generally possess free will and therefore may justly be blamed
ii. Just Deserts Model: – How CULPABLE is a person?
1. The Amount of harm done
2. The Mental State (intent) of the person
3. Protective retributivism- secures a moral balance in society, we do not want free-riders but want all to follow the rules of our system.
4. Victim vindication- punishment is a way of righting a wrong.
iii. Problems with Retributivism:
1. Mob mentality
2. Too much power in the state
3. Societies goal should be to reduce all human suffering- why make one more person suffer if someone else already has.
4. Glorifies anger and legitimizes hatred.
5. Founded on anger rather than reason.
iv. Alex Carbarga Case: (Sexual assault of a minor in van)
1. A gruesome act was committed, but Alex was also a victim. He was not nearly as culpable as Tree-Frog because he was lacking free will.

2.Constraints on Pu

Strikes
§ Overcrowding
· Leads to too many people into prison
ii. Federal Sentencing Guidelines
Background: 1984 Congress passed a Sentencing Reform Act for the federal criminal justice system designed to promote determinate sentencing, and establish a Sentencing Commission to set up guidelines that would reflect these goals and limit sentencing discretion. The Commission’s guidelines make sentencing “proportionate” to factors other than the actual offense committed. Criticism is that the guidelines render the offense of conviction irrelevant and that it eliminates sentencing discretion and produces excessively harsh sentences. Discretionary parole abolished. 2 factors are important to sentencing: measure of criminal record and offense level

Sequence for setting sentences:
1. Judges in setting sentences are supposed first to consult a schedule for the particular offense which specifies a “base offense level”
2. Then, on the basis of various offense circumstances (ie whether was armed, value of property taken), the offense level is adjusted
3. Next, judge must determine the offender’s criminal history score
4. Finally, judge is to consult a 2D grid to learn the presumptive sentence for the offender, given his adjusted offense level and criminal history…also permitting adjustments for acceptance of responsibility and assistance to gov’t