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Criminal Law
University of California, Hastings School of Law
Rapapport, Elizabeth

Intro to Criminal Law:
-Two main types of criminal law, common law and Model Penal Code.
-Remember: California is a Common Law state.
-Remember: defendants are innocent until proven guilty- thus the burden of proof is on the prosecution to present evidence proving the guilt of the defendant beyond a reasonable doubt. Thus if there is any reasonable doubt about the guilt of the defendant, the jury should find a verdict of not guilty.

Justifications for Punishment
Utilitarian
-Generally, the reason for punishment in utilitarian terms is to prevent the future occurrence of crimes and thus to protect society from harm.
-The goal is to ensure that the maximum social utility is realized from the criminal justice system.

Deterrence
-Generally, punishment is justified because it sends a message to others to prevent them from doing that crime or a similar one.
-The person punished is punished as an example to others, to protect society.
-Can be either 1) General or 2) Specific.
-General Deterrence refers to punishing D to teach others,
-Specific Deterrence refers to punishing D to prevent D from committing crimes in the future.
-Bentham was a strong proponent of deterrence, and advocated that very sever punishments should be imposed for crimes with a low likelihood of capture and conviction- to serve as an effective deterrent for the calculating criminal.
-This is problematic as many criminals do not think about the future at all, and thus deterrence does not work on them; either because they have such high discount rates that the future punishment does not matter; or because they do not think that they will get caught, for either rational or irrational reasons, and thus the severity of the potential punishment does not matter at all.
Rehabilitation
-Punishment serves to reduce crimes by reforming D into a productive member of society in prison.
-Rarely works in practice in our current prisons.
-Modern prisons began as rehabilitative institutions, rather than the old methods of either sending everyone to the gallows or to the penal colony.
-Shift away from rehabilitation towards incapacitation around 1980- reflected in the rise of mandatory minimum sentencing programs.
Incapacitation
-Prevent D from committing more crimes by locking him away.
-Protects society by ensuring criminals are not on the streets.
-Concern is that the prisoner will learn how to commit worse crimes in prison than he knew before he went in; and so for incapacitation to work the number of crimes prevented must be less than the added number of crimes thanks to the increased criminal skills of the prisoners.
-Incapacitation only works if the individuals imprisoned would have committed another crime had they been released- in the aggregate this is true, as there is a roughly 2/3 recidivism rate for criminals in the US.
-However the distribution is bi-modal, as most offenders commit few crimes, but a few offenders commit a great number of crimes; and the trick to successful incapacitation involves identifying those high-level offenders, which is not easy.

Criticisms
-Innocent people may be punished to make an example for others.
-Utilitarianism raises the question of whether people should be imprisoned before they commit a crime, to prevent the crime, if they could be identified- a true utilitarian would love this, but it violates a lot of our morals. –[Ex: Minority Report] -Punishing someone for longer than their crime alone deserves in order to deter others from committing that crime is not fair to the person in prison.
-High costs to society and the state from all of these people in prison for one reason or another.
-Insufficient focus on effective rehabilitation for certain crimes- i.e. drug treatment instead of prison, aka “school for criminals.”
Retributive
General
-Punishment serves to punish the D for his moral failings and harm he caused to society. “The D has wronged society, and so he deserves punishment.”
-Punishment only for past crimes- no consideration of future in punishment decision.
-“Just Desserts” Theory- Punishment should be based on culpability- where defendants who are more culpable receive harsher punishments than those who are less culpable.
-This assumes that defendants have free will in their choice to commit crimes; and breaks down when defendants are subtly coerced.
-Alex Cabarga Case- Tree Frog Johnson seduced a minor Alex Cabarga and abused him for years; then the two of them captured and abused two other minors. At trial Cabarga was sentenced to 208 years, which later reduced by the appellate court which partially accepted his defense that he had lost his free will as a result of Johnson’s coercion.

Criticisms
-The state should not be in the revenge/vengeance business.
-Insufficient focus on protection of society from here out.
Constraints on Punishment
Statutory Con

does not violate the Eighth Amendment.
Kansas v. Hendricks- Hendricks had a history of sexually violent crime, and was due to be released, but Kansas passed an act to keep sexually violent predator in civil confinement after the end of their criminal sentence. Ct held that this did not violate the 5th Amendment protections against double jeopardy because it was a civil sanction, not a criminal punishment.
-If purpose was retribution or deterrence then the law is criminal, but incapacitation and rehabilitation then the law is both civil and criminal; and by this ruling acceptable.
Elements of a Criminal Offense
-Every crime includes an actus reus and a mens rea element- the actus reus is the bad act and the mens rea is the guilty mind- covering both the necessary harm and the necessary culpability.
-Some crimes are strict liability, and do not have a mens rea- the commission of the act alone generates liability. These are usually regulatory infractions, but sexual intercourse with a minor also is often strict liability too (statutory rape).
-Historically crimes were defined purely by the common law; but now all crimes are defined by statutes, which are generally modeled on either the traditional common law or on the MPC.
Actus Reus
-All crimes must have a prohibited act, as defined in the statute.
Two Types of Bad Acts:
-Conduct Crimes
-the action is illegal
-ex: carrying drugs
-Result Crimes
-conduct which causes a particular result is illegal
-ex: killing someone, the result of death is the crime
Voluntary Act Requirement
-Proctor v. State- Proctor was charged for keeping a place for the purpose of distributing liquor, a crime defined by a lawful act coupled with an unlawful, unexercised intent. This is unconstitutional- a statute must couple a bad act with a manifested unlawful intent to create a crime. I.e. no thought crimes.
-Innocent, Lawful, Common Acts are not actus reus acts.
-The act must be Voluntary!