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Criminal Law
University of California, Hastings School of Law
Weithorn, Lois A.

I. Overview of criminal law system
A. Themes in Criminal Law
· Societal values
· Culpability and criminal mind state
· Morality
· Responsibility
· Discretion
· Punishment

III. Punishment: Criminal v. Civil Distinction
A. Why do we have criminal-civil distinct systems?
· Humans make moral distinctions and judgments
· Criminal liability signals moral condemnation; civil liability does not
· Criminal system has VALUE in communicating these moral judgments (message of immorality and condemnation)
o Loss of freedom, societal condemnation

B. Kansas v. Hendricks – example of a Hybrid case of criminal and civil intervention
1. Hendricks was committed under Sexually Violent Predator Act (civil statute) although it is past criminal behavior
2. Hendrick’s arguments – can’t charge because ex post facto (can’t punish for old crime) and double jeopardy (charge for same crime twice)
3. Under civil statute, it is ok to re-commit someone as long as we give them treatment

C. Reasons for Criminal-Civil Distinction – based on moral judgment/condemnation
1. Criminal law – Focused on harm against state/society, affront to values of society/norms
2. Civil law – Focus on the individual and private interests
3. Punishment: criminal law “sanctions or “prohibits”; civil law “prices”

IV. Theories of punishment

A. Backward looking theories of punishment: punish for past crimes

1. Retributivism – Those who commit crimes must be punished and punishment should be meted out according to the crime.
o Punishment is justified when it is deserved and is moral culpability for persons who violate laws. This theory is based on the idea that human beings can choose between good and evil and those that choose evil deserve punishment
o The wrongdoer should be punished even if punishment will not reduce crime

o Retribution is based on moral culpability for persons who violate laws / criminal’s blameworthiness
o Two types:
o Harm retributivists – focus on harm done as a consequence
o Culpability retributivists – focus on mental state / intent

o Criticism: We can not know what offender truly deserves. It is assumed we know how to rank crimes and punishment

2. Incapacitation – “keep them locked up” – seeks to reduce future crime by aiming to deprive criminal of the ability or opportunity to commit crime; Prevent recidivism

a. Collective incapacitation – all persons convicted of certain offense receives same sentence
b. Selective incapacitation – individualized sentences to target subgroup
c. Assumption – criminal will commit future acts and we are good at determining who will commit crimes again and how long to incapacitate them
d. Criticism: cost to keep criminal in far outweighs cost of criminal in society

3. Denunciation – seeks to express publicly society’s disapproval of blameworthy conduct and educate society about and reinforce norms reflected in criminal law.

B. Forward looking theories of punishment: to make punishment useful to society by
reducing crime

1. Utilitarianism – Goal of laws is to maximize net happiness of society; pain inflicted by punishment is justifiable if it results in reduction of pain of crime that would otherwise occur
Forms of Utilitarianism = Deterrence, Rehabilitation
o Potential criminals are less likely to commit crimes because they want to avoid punishment. This theory is based on the idea that potential criminals will balance the likelihood of their success of their crime with the severity of the punishment
o Punishment is imposed to benefit society by preventing and minimizing crime.

a. Rehabilitation seeks to reduce future crime by changing the criminal so that he no longer desires to commit crimes.
1. Aim is recidivism prevention: protecting society against future offenses
2. Restorative justice – Process of bringing together individuals who have been affected by an offense and having them agree on how to repair the harm caused by the crime; Purpose is to restore victims, offenders and communities in a way that all agree is just

b. Deterrence is the notion of reducing crime through the fear of punishment
o General deterrence – Punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment
o Specific deterrence – Punishment may deter the criminal from committing future crimes
§ Assumption – we are all rational actors who use a cost-benefit analysis before engaging in behavior; individuals have free will to choose
§ Criticism: Criminal deterrence doesn’t work for present day crime-prone youth

V. Sentencing
A. Sentencing guidelines
1. Federal sentencing guidelines – Supreme Court struck down mandatory provision
o If Guidelines are binding, they have force and effect of laws and thus they violate 6th Amendment and are unconstitutional à Guidelines are not mandatory
o Federal judges must still consider the guidelines in tailoring sentences (advisory)

2. CA 3 Strikes Law – Ewing v. CA
o When a defendant is convicted of a felony and he has previously been convicted of one or more “serious” or “violent” felonies, sentencing will follow 3 strikes law (25 yrs to life)
o 8th amendment prohibits extreme sentences grossly disproportionate with crime
o Ewing’s sentence was not grossly disproportionate under 8th amendment
o Focus is on criminal not so much on crime
o Theories of punishment: incapacitation, deterrence of repeat offenders (not retribution or rehabilitation)

VI. Constitutional principles

A. Due process – Requires states to guarantee procedural fairness and equal protection
1. Fair warning – notice that crime is illegal
a. Keeler v. Superior Ct. – D killed ex-wife’s fetus by kicking her. Definition of human being under statute was not defined as fetus, so no fair warning
o Void if vague (Rule of specificity)– if language of statute is vague
o Vague statutes are unacceptable because they deny a law-abiding person fair notice
o If law-abiding person had to guess as to the meaning of statute, due process clause is violated
o Provide police and prosecutors opportunity to act in an arbitrary and discriminatory manner.
2. Rule of legality:
o Criminal statutes should be understandable to reasonable law-abiding persons
o Criminal statutes should be crafted so as not to “delegate basic policy matters to policemen, judges, juries for resolution on ad hoc and subjective basis”
o Rule of lenity – If there is uncertainty in statute, court should construe in favor of the accused

B. Double jeopardy – can’t be charged twice for same crime (Provision of 5th Amendment – No person shall be subject for the

Elements of a crime:
Actus reus
Mens rea
Concurrence of mens rea and act/result
Harmful result and causation
Attendant circumstances

VIII. Act – “voluntary act” – conduct element or even all non-mental elements of offense
o Distinguished from thoughts, words, and status: Mere thoughts are never punishable as crimes.
o Jxn differences in what constitutes an act

o Voluntariness
o Rule: Crimes can only be convicted if they are based on voluntary acts – Martin v. State (Appellant was arrested at his home, and police officers took him to the highway where he manifested a drunken condition using loud, profane language. Court did not convict him under statute that forbids public drunkenness because he did not voluntarily enter the street.)

o Model Penal Code § 2.01 (1985)
(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable
(2) The following are not voluntary acts:
· reflex or convulsion,
· bodily movement during unconsciousness or sleep
· conduct during hypnosis,
· bodily movement that is not a product of the effort or determination of the actor, either conscious or habitual

o Time-Framing – time frame that shows D’s conduct included a voluntary act
o The decision to frame the actor’s conduct broadly or narrowly may be based on the desired outcome of trial
o Rule: If there is knowledge of possible injury to others and conscious decision to act without regard for possible injury to others, then culpable negligence should apply. (People v. Decina – D has epileptic seizure during driving and kills four children. D was prosecuted for “criminal negligence in the operation of a vehicle, resulting in death” because knowing he had a history of seizures, he consciously operated a car on a public highway)

o Omission – failure to perform duty or act
o Rule: One can be held criminally liable for a breach of legal duty: Where a statute imposes a duty of care for another, Where one stands in a certain status relationship to another,Where one has assumed a contractual duty to care for another,Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. (Jones v. US – D agreed to take care of family friend’s children. Child died from neglect, and D was found guilty criminally liable of breach of legal duty to take care of child as guardian.)

Model Penal Code § 2.01(3) – Liability for the commission of an offense