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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
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.
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
iii.     Problems with Retributivism:
1.   Mob mentality
2.   Too much power in the state
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 Punishment
a.Statutory Constraints on Sentencing
i.     Mandatory Minimum Sentences: legislature passes a law which compels a minimum sentence
1.   Offense Specific:Statutes passed by legislature that require the judge to give a minimum sentence for certain crimes
a.        Drug Sentences- most states have these
b.       Lots of criticism:
i.      Impose the same penalty to all those in the operation regardless of their role.
ii.      1990 study found that many drug offenders were serving long sentences, for non-violent crimes and no priors.
2.   Recidivist Statutes: Not designed for a specific crime, rather a minimum sentence for repeat offenders
a.        California- 3 Strikes Law
b.       Criticism:
§         Many offenders end up in prison for petty crimes. (Over-breadth)
·         2/3 of 3rd strikes sentences are for non-serious crimes. Drug and property.
§         Too much prosecutorial power in sentencing (Should it be a felony).
§         Violence is promoted
·         Go down shooting, instead of life in prison
§         Illogical
·         Burglary, Burglary, Theft = 3 Strikes
·         Burglary, Theft, Burglary = Not 3 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

Criticisms:
In addition to failure to eliminate unwarranted disparities, the guidelines sentencing process raises serious due process issues:
1.        adequate notice of the charges by indictment or information
2.        the standard of proof with respect to uncharged conduct which will significantly affect length of sentence
3.        right to confront and cross-examine witnesses with respect to uncharged conduct
4.        right to jury trial with respect to uncharged conduct

·         Relevant Conduct Concern: take into account extra crimes: judge permitted with lower standard of review (preponderance of evidence) to add additional time at sentencing with respect to grid; incorporate indeterminate sentence discretion

·         Leniency/Discretion: Departures upwards/downward left to judge discretion but under strict guideline: must conclude that relevant factor was not adequately considered by sentencing commission; policy statements: guidelines severely limits grounds for departure; across the board is seen as overly rigid; 90% of depart

. (Omissions)
ii.      Need for an Act:
1.        Act requirements put the public on notice as to what behavior is considered criminal.
2.        Having an act requirement makes it easier to prosecute. – Objective evidence of criminality
3.        The statute must list prohibited acts
4.        Proctor v. State: (“keeping a place” to sell booze) P was convicted of “keeping a place with the intent to sell alcohol”. The statute does not specify what the criminal act is. Keeping a place is an everyday common act and it cannot be a crime.
iii.      Voluntary Act:
1.        Voluntary act = result of Δ’s conscious action, regardless of motive. Cannot be the result of a seizure , sleep, hypnosis etc) 
2.        Court has held that uncontrollable physical motions, seizures etc, are not voluntary
a.        Sleepwalking, Hypnosis, seizures,
3.        Reasoning: There is no reason to punish
a.        Not culpable (Retributive)
b.       Not dangerous (Utilitarian)
4.        People v. Decina (Seizure related car accident): D knew he suffered from seizures and he drove anyway, causing an accident and killing others. 
5.        Time Framing: As shown in this case. Actus reus is causation: causing a harm, there are several points in time that can be identified as causing the result, time framing looks back at earlier acts that caused the result, i.e. Decina, no voluntary act at time of crash, but earlier, getting into the car was a voluntary act.
iv.      Possession is an Act
1.        Courts have said that physical possession satisfies the act requirement. – possession isn’t an act, but they will treat it like it
a.        Power + intent control over it
2.        Possession is an act for policy requirements – can’t always catch people in the act of using guns or drugs, so possession is enough – law enforcement and prosecution goal
3.        Constructive Possession: an extensive of possession, doesn’t need to be in physical possession, item in one’s proximity, still could be held guilty
a.        Power + intent to exercise control over an item not in one’s ‘actual’ possession
b.       Still need to satisfy the mens rea requirement [LIMIT ON CONSTRUCTIVE POSSESSION] c.        Gives law enforcement the tools they need
d.       U.S. v. Maldonado (Drug briefcase in hotel room): Though D never actually held the drugs in his hand, because they were in the room under his possession, he had possession of them. 
v.      Status Crimes:
1.        You cannot be punished for status – can punish activity but not the status,
2.        Chicago v. Morales (Gang related loitering) This statute failed to provide the public with notice of what was being prohibited. Encourages arbitrary enforcement. Loitering is a vague term that could mean quite a lot.
§         Papachistou v. Jacksonville: (Vagrancy crimes)
·         Innocent everyday common act activities are not satisfying for the act requirement
§         Robinson v. CA (Punished for being addicted to drugs)
·         Punish having drugs, using drugs, selling drugs, but not being a drug addict