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

Rappaport, Criminal Law, Spring 2018
Justice System Overview

Phases of Criminal Cases:
Investigation – Police have nearly unfettered discretion in whether or not to investigate a situation for a possible crime, and the potential for police investigation can change with social mores.
Ex) Domestic violence investigated today but was a private family matter in the past. Media attention on domestic violence changed police view of the issue.
Charging- After arraignment and booking, prosecutor may charge DF with almost unreviewable authority. Charges on a DF stick only when:
Indictment by a grand jury OR
Preliminary hearing – on probable cause standard judge decides whether or not to take charges forward
Problem of Plea Bargaining – high number of plea bargains reflects risk of punishing people who are not guilty & plea bargain on fear of being found guilty with a longer sentence by a jury.
Trials – (Despite double jeopardy, possible to be prosecuted for the same crime by state & federal)
right to a jury trial for a serious crime
jurors chosen through voir dire
jury must have unanimous verdict
non-unanimous is a hung jury & retrial
DF may waive the jury for a bench trial with judge as fact finder
Sentencing – not decided by the jury accept in death penalty cases

Statutory Interpretation:
Factors of Interpretation-
Legislative Intent
Inferred from various documents like house judiciary report and transcripts of meetings
Public policy – considerations of fairness and justice when interpreting statute
Rules of statutory interpretation-
Ex) Rule of lenity:  When ambiguous text, read it to protect the defendant. A person shouldn’t be punished if they weren’t put on notice of the law.
Stare Decisis – binding court opinions which have already interpreted the statute in question *most important*

Johnson v. State
Held: mother may not be convicted for transferring a controlled substance to her child via umbilical cord under a criminal statute that does not expressly and clearly state that the delivery of a controlled substance includes such a transfer.
Facts: DF charged with two counts of delivering a controlled substance to her baby during birth in violation of a state law that prohibited the delivery of a controlled substance from one person to another.
rules of statutory construction require courts to strictly construe criminal statutes
Rule of lenity – When the language contained in a criminal statute is ambiguous, a court must interpret most favorable to the defendant. 
Legislative history – of the statute does not show any intent by the state legislature to apply the statute in cases where a mother gives birth to a child and delivers the controlled substance to the child via umbilical cord
Public policy – deterring women from getting medical care and having their babies at home instead of the hospital

Purpose of Punishment

Queen v. Dudley & Stephens (shows combo of fairness and public policy)
Held: Necessity does not justify homicide if not in self-defense.
Analysis: Court is unsure of the rule so it uses legal authority from various scholars and moral arguments.  Court decides on moral: “The absolute divorce of law from morality would be fatal,” & that murderers need punishment (fairness).
Public policy: Court wants to avoid making the necessity defense a loophole for future murders and uses this case to send a message to the public (utilitarian)
Utilitarian against death penalty: Death penalty results in 3 lives lost instead of only 1

Justifications for punishment:
Utilitarianism (policy)-
Utility = happiness; Thus, we reduce the bad to create a larger net good
Forward-looking idea ensuring punishment results in good consequences regardless of culpability
Focus on maximizing utility and practicality
Operates on Cost/Benefit Analysis of Punishment:
Dramatic costs of punishment require a benefit resulting from punishment
Ex of Cost: DF’s shame and deprivation of liberty, monetary costs of imprisonment, Cost in contributions to society that incarcerated DF can’t make
Ex of Benefit: Public safety increased by reduced crime through rehab of criminals, incapacitation of criminals, & deterrence

Utility is achieved through: These are the benefits and you weigh them against the bad.
Rehabilitation- Cost benefit analysis applies to all 3 util methods, correct?
goal is to make criminals better people in society operating on assumption that people can be changed
justification for old indeterminate sentencing
Historically popular method that transformed punishment system in early 1900’s
Changed institutional structure to adopt indeterminate sentencing method and parole board
Judge decides how many years DF gets and early release can be granted by parole board if they deem DF to be reformed.
By 1970’s doubts about efficacy of rehab and if it even works results in a shift to punitive approach to sentencing, rebab rejected
*Rappaport’s opinion/ important example- There are well documented social programs that are effective for rehab like drug treatment. Some rehab is possible especially for drug programs which reduce recidivism. However, there are limited funds for such programs. So, just because it works doesn’t mean its justified because of the high costs. ALWAYS do a cost/benefit analysis. 

Criticisms of Indeterminate method:
Judge has a high degree of discretion for sentencing
Unfair sentencing disparity – Studies showed sentencing depends on the judge a DF got.
Political controversy – People from right and left disagree with the sentencing of different judges
By 1980’s both right & left wanted a set of rules for sentencing

Idea that punishment of DFs sends a message to potential offenders, deterring crime
Based on cost-benefit analysis – level of deterrence produced is only justified if it outweighs the costs (consider the diminishing deterrent effect) see below

Criticisms of Deterrence:
May not deter all potential offenders who are irrational, don’t understand or care about consequences of their crimes. Ex)
Crimes of passion (DF doesn’t rationally think about consequence)
Drug offenders
DFs who think the punishment isn’t so long in jail or know they can get off on parole
Diminishing deterrent effect- Adding 1 year to a 20 year sentence doesn’t add much deterrence value but greatly adds to monetary costs of imprisoning that DF. Instead, the money could be used to make more arrests to deter those scared of the 20 year sentence.
HOWEVER, deterrence is very effective for white collar crimes, making people careful in their business transactions. DOES DIMINISHING DETERRRENT EFFECT GO UNDER CRITICISM OF DETERRENCE? NO, use it in the cost benefit analysis. All it says is that you get a lesser and lesser benefit. Just a factor

Focus of criminal justice system today? Is that right?
Goal is to remove offenders from society thereby preventing crime & increasing utility
Advantage – no assumptions about human nature are necessary (unlike rehab), works by simply imprisoning DF
Concern – the DF must actually be the true offender of the crime, otherwise no incapacitation of a criminal & no increase in utility

Key Assumptions of Incapacitation
Must predict who will commit future crimes by assessing dangerousness of DF
If that DF is never going to commit another crime, incapacitation & utility are not served
Selective incapacitation is the key to ensuring this theory is productive.
How accurately are we able to predict this?  James Wilson gives a 7 factor test from Rand Study (but heavily debated, based on subsequent studies.  Competing studies: low number of prisoners commit crimes at high rates: worth cost of long-term incapacitation?)
“Highly predictive”: 1) any previous convictions as minor; 2) drug use as a minor; 3) drug use in last 2 years; 4) unemployment; 5) time served in juvenile detention; 6) in prison half of last 2 years; 7) previous conviction of the SAME offense

DFs who are imprisoned will not be replaced
Consider the replacement effect in market oriented crimes like easily replaceable low-level drug dealers
DF stopped committing crimes even in prison for incapacitation to be served
If crimes happen in jail, nothing was done to benefit society at large although now only the incarcerated members of society are at risk.
Prison will not be a crime school for a DF. Isn’t incapacitation still served because this person was off the street? Yes it is, but there is a negative effect of a larger risk of crime afterward.

Criticism of Utilitarianism-
Seems to raise immoral policies:
Could justify punishing the innocent b/c it still

rrow range of sentences based on points:
Criminal history prior MISSING SOMETHING?
Offense level
iii. Separate federal statutes may tack on more time to that suggested by the guidelines
d.  Relevant Conduct Rule- (mostly applies to drugs) if evidence of a further crime exists unable to be proven at trial, at sentencing phase judge makes that finding of fact on a preponderance of the evidence standard & the points are added together for a longer sentence on the grid IS THIS THE CURRENT LAW/PROCUDURE? Yes only in federal system
I.e. judge may find that more drugs were sold than proven at trial and is therefore required to increase the sentence based on this preponderance finding.  Controversially because prosecutor may have never even brought higher possession charge before jury but decides to present this charge because of the lower evidentiary standard at sentencing
Defended as an extension of historical indeterminate sentencing authority; difference is that under guidelines, judges are instructed to take this into account, where they were free to choose not to before

Constitutional Constraints
8th Amendment “Cruel and Unusual Punishment”
Challenges about the sentence
Ewing v. California- 2003 (*3rd strike is ANY felony b/c prior to 2012) Whats the actual holding
Facts: DF got 3rd strike grand theft (stealing goods more than $400). Grand theft was a “wobbler” crime which could be charged as a felony or a misdemeanor based on value of stolen goods (here 1,200).
Issue: Is 25 years too disproportional thus unconstitutionally cruel and unusual punishment?
Holding: No, appropriate for serious repeat offenders. For unconstitutionality, sentence must be “grossly disproportionate to the severity of the crime.”
RULE: “Cruel” determined by standard of PROPORTINALITY.
Unconstitutional sentence must be “grossly disproportionate to the severity of the crime” *high standard
Apply the standard by comparing 1) estimated justified sentence with 2) sentence given
Asses if the sentence is justified by discussing either retributivism or utilitarianism either or both should be discussed
DF argues it should be retribution b/c 25 seems too harsh for low social harm of stealing golf clubs
Prosecutor says either justification may be used and Court agrees
“Unusual” is determined by comparing the sentence to other jurisdictions. *must be both cruel and unusual to violate constitution

6th Amendment (Right to Jury Trial and Due Process)
Challenges about the fairness of process at trial and sentencing
Apprendi v. NJ – 2000 (sets original rule) what is the actual holding? Know the holding for the big cases don’t worry about the minor ones.
Facts: White man shoot into black people’s home. Under a state statute, a DF can be sentenced up to ten years for possessing a firearm for an unlawful purpose. Under a separate “hate crime” statute, a DF can be sentenced to an “extended term” if judge finds racial animus involved in the crime. Thus, sentenced to 12 years.
Issue: is racial bias a sentencing factor or a criminal element to be submitted to jury for guilt beyond reasonable doubt?
Holding: violation of due process because it allows a defendant to be sentenced for a term exceeding the maximum allowed for the substantive offense without a finding of probable cause by a jury. 
Racial bias is a criminal element b/c of danger in future cases of allowing other factual findings to be pushed into the sentencing phase and found by judge under lower preponderance of the evidence standard