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

Criminal Law Outline Fall 2007
Professor Aaron Rappaport

1. Punishment……………………………………….

Theories of Punishment

Retribution v. Utilitarianism

Focuses on the future consequences of an action. It is justified if the future good outweighs the bad. What is utility? Utility is pleasure. “The greatest happiness for the greatest number”.


we invented the prison system for this purpose.
indeterminate sentencing was the dominant way of punishing people until 1980ish. Judges sentence them for long terms, then the parole board makes the decision as to whether they have rehabilitated themselves.
In the 1970’s the rehabilitation ideal was attacked. Whether the government knows how to rehabilitate people. A distrust of the prisoners, of the government rehabilitating them. The idea that “nothing works” is even disputed today. Have to look at specific treatment programs


want to send the message that crime doesn’t pay
Do people actually get the message? Transmission of information is important.
Also, as the sentence gets higher and higher, it might not mean as much (0-1 as opposed to 21-22).
Different criminals react differently to deterrent effects (ex: white collar are very deterred whereas drug traffickers and abusers are not)


You put them in there, they won’t commit crime in society.
Flawed because

1. They will commit crimes in jail.
2. Are we increasing the recidivism risk?
3. The replacement effect (drug dealers, prostitution). What’s the likelihood of them repeating the crime? If it is low, then you’re wasting money keeping them in there.

Selective incapacitation – can we pick the high risk offenders?

Morality and punishment will only be applied based on the inherent badness of their actions. Only punish people who are blameworthy. Retribution is backward looking, doesn’t care about future consequences like utilitarianism does. They all agree that you should never punish an innocent person.

Problems with Retribution

How do you measure culpability? What is the metric to say how much punishment is deserved? The very old method is eye for an eye. It doesn’t capture all our intuitions about culpability. Elements of culpability beyond harm: intent. Their mental state. Intentional killing is a lot worse than accidental.

Just Deserts

The idea of just deserts is the amount of harm and the mental state.
Social harm and mental state are significant measures of culpability.

Sentencing Issues


Mandatory Minimum Sentences

legislature takes the reins of sentencing.
Offense related mandatory sentences; to a specific kind of crime you get this kind of sentence (most are for drug distribution and use).
Impose the same penalty on everyone in the operation regardless of the position (the loader from the dock to the mastermind).
Problem is that some offenders who didn’t seem as culpable were getting huge sentences for one time offenses.

Recidivism Statutes

impose a minimum sentence on offenders who have a prior criminal record. For example, California’s three-strike law. You are eligible for three strikes if you have committed two serious felonies, and your current offense is any felony.
Any sentence that has a minimum sentence of at least one year in prison is a felony (not necessarily serious)
Three Strikes

Might actually promote violence in the three strikes (during your third crime, you’re stealing something, there are some witnesses, you will shoot them)
Problematic because burglary, burglary, theft gets three strikes but burglary, theft, burglary does not.

Sentence Guidelines

Detailed rules that take into account all the significant factors in sentencing
Legislatures pass a law that established an expert agency to establish specific sentencing rules that tell the judge how to sentence
Fed government and about half the states have adopted this guideline system

The Federal sentencing guidelines
· Established the US Sentencing commission, abolish

It has to be cruel AND unusual (cruel but widespread is okay and weird but not cruel is okay)
Is the sentence grossly disproportionate to the crime? This is the standard for cruel punishment.

Application/Rationale: In weighing the gravity of Ewing’s offense, we must place on the scales not only his current felon, but also his long history of felony recidivism. Any other approach would fail to accord to proper deference to the policy judgment that find expression in the legislature’s choice of sanctions.
Scalia: all punishment should reasonably pursue the multiple purposes of the criminal law.

*Rummel v. Estelle: the court held that it did not violate the Eighth Amendment for a State to sentence a three time offender to life in prison with the possibility of parole. This was a case in the ‘70s. Fraudulent use of credit card, forged check, obtaining cash by false pretenses. Texas courts held that he was a member of society who could not function normally in a non-criminal fashion and thus imprisoning him was a type of incapacitation.

*Solem v. Helm: He had 6 felonies before this, but none was a crime against a person. For this offense, he got a life sentence without the possibility of parole for a forged check of $100, which the courts overturned because in Rummel there was a possibility of parole. Plus O’Connor says the bad check offense is one of the most passive felonies a person could commit.

Harmelin v. Michigan: was caught with 672 grams of cocaine. He received a life without possibility of parole sentence for a single act of cocaine possession. This is where they decides, “8th amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.”