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

Crim Outline
Weithorn Spring ‘10

Why Punish?: Utilitarian: repair the injury to society, not the person
Deterrence: prevent crime (forward looking)
· Assumes: (a) rational offender (most offenders actually are present-oriented) (b) cost/benefit analysis, (c) jail worse than life outside (not “good career move” like for gangs)
· Problems: latency (time between crime and punishment), Certainty (not all offenses caught)
· General Deterrence: Deterring others who might do similar acts
· Specific Deterrence: Deterring specific offender from reoffending
Retribution: backward looking, focuses on what criminal did and what the deserve (just deserts)
· Assumption: no biases in criminal system: color-blind to what they did and seriousness of the crime
· Proportionality: punishment must fit the crime: Focuses on the crime, not the criminal, no desire for background, motive, etc (8th amendment, cruel and unusual)
· Harm Retributivism: focuses on conduct/ harm
· Culpability retributivism: focuses on mental state: in MPC: attempts w/ same mental state punished like the offense (not really adopted)
· Problems: hard to figure what’s proportional, differential application of punishment to crimes in different places, people wrongly convicted
· Limiting Principle: proportionality places a cap on punishment
Incapacitation: making it physically impossible to commit the crime/ take away ability
· IE: death penalty, prison, cars w/ breathalyzers, chemical castration
· Collective: same offense = same punishment regardless
· Selective: individualized sentences based on prediction of recidivism
o 3 strikes is a type of incapacitation
· Sentencing goals: based on magnitude of harm of potential re-offense
· Incapacitation vs. Deterrence: deterrence influences choice/ incapacitation removes choice
Rehabilitation:
· Change the offender, not the crime
· Works best w/ non-violent drug offender
· R vs. Deterrence: Rehabilitation seeks to remove the desire to commit crime, deterrence to influence the choice
Restitution (Restorative justice)
· Re-integration of the offender into the community
· Discretion for victim to take more active role (Dateline Video)
Denunciation: shame, condemnation, calling offender to task

Discretion: by the police or the DA or the judge : to arrest, to charge, to decide
· Allows some flexibility w/in the system for specific cases
· Problems with bias
· Often constrained by statute (e.g. sentencing guidelines)
· Discretion of the jury:
o Jury Nullification: juries can decide to go against the law, finding of fact not appealable if issue is close
Lawrence v. Texas: decriminalizing sodomy:
· Stigma of the criminal law is not trivial: has impact on the way society views the act
· Moral Blameworthiness
· Power of the criminal to reflect social attitudes and to change them
· Right to privacy upheld here
The Civil and the Criminal:
Civil: personal harm, brought by citizen plaintiff
Regulate private relationships between citizens
Criminal: harm against the state, brought by the state
Regulate relationship of individuals with the state
The Criminal law punishes and the Civil law prices: though there are criminal fines and civil forfeitures, jail for contempt
Coffee’s Article: mens rea disappearing more and more from criminal law
– Increase in strict liability crimes makes it less possible to avoid criminal liability in everyday life
– Dilutes the moral force of the criminal law
Kansas v. Hendricks: The meaning of punitive
Civil commitment for sexually violent predators (SVPs). Statute defines SVPs as not having mental disease but mental abnormality, not responsive to treatment. Jury determines if offender is SVP.
Issue: is SVP statute unconstitutional as to those already doing time for sexual offenses:
Double jeopardy? Ex post facto clause (laws after the fact)
Only if SVP statute = punishment
Issue: is SVP commitment punishment?
Maj: labeled “civil commitment” –reflects intent, placed in probate codeà for dealing w/ people who need guardians: labels not always dispositive, though
Presumption in the label, can only be overrun by clearest proof
No retribution (no culpability required) or deterrence (bc mentally ill so who will it deter) = not enough to override presumption of validity
Note: restraining the mentally ill: allowable through combination of police power (offenses committed) and Parens Patriae (right to interfere for people’s benefit: like seat belts)
Diss: Distinction between punishment and civil commitment is whether or not people get treatment/ benefit from detention: whether they have chosen less harsh alternative
These people not amenable to treatment: This statute clearly to incapacitate which is a goal of punishment
Three Strikes: CA the only start where nonviolent offense can serve as 2nd/3rd strike
Policy: incapacitation and deterrence by increasing the prison sentences of multiple offenders
Might not have passed if not for Polly Klaas murder: little girl killed by multiple offender
How it works: Strike 1: any serious or violent felony
Strike2: 1 serious or violent offense = 2X the term for subsequent felony (regardless of seriousness)
Strike 3: 2 serious or violent offense = life sentence for next felony (regardless of seriousne

inition of crime
o Ie: inhabited/uninhabited dwelling
o Can be more of a crime at night than in daytime
· Result
Most Crimes are conduct crimes, though some are result crime
Result crimes: requires specific result
· Murder requires someone die
· Some crimes requires serious bodily injury
· Some require property greater than $1,000
Causation: at issue in result crimes only
Dougherty Case: worried about implications of instruction to the jury on nullification
Jury nullification: not intentionally part of the criminal justice system
Issue: stamp of approval removes the validity of the phenomenon, doesn’t allow juries to have emotional distance to make hard choices
Sympathetic defendant = good maybe (ie: old man helps terminal wife die)
Nullification caused by bias = bad for sure (ie; Rodney king cops acquitted despite the video)
Note: Even if jury later admits to nullifying, acquittal is acquittal
Note: If lawyer tells a jury can ignore the law + evidence: probably overturned on appeal, sanctions
Though if phrased more generally (do what’s right, etc) probably ok

Conduct/ Act Requirement
(Dorothy and the house = least guilt, no act)
Why require act? Not to criminalize mental states (difficult, less valid b/c no outward social harm)
What is an act?
– Verbs (drive, enter, shoot)
– Computer trespass (gains access to)

Robinson v. California: CA criminalizes “being addicted to the use of narcotics”
Issue: Due Process/ Cruel and unusual?
Supreme Court says criminalizing status violates both of these
Status: what someone is vs. what someone does
Validity of criminalizing something presumes free will: addiction is a disease
Powell v. Texas: statute against getting drunk and being found in public place. Man claims cannot control this b/c alcoholic.
Issue: Due Process/ Cruel and Unusual
SC finds the statute does not criminalize alcoholism or even intoxication but being in a public place that way.
Here, there is an act to criminalize
Policy: toward drugs and alcohol: more away from sickness/pity/care, more toward taking responsibility for your own actions