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


Table of Contents

Criminal Law Introduction                                                                                                              3

Theories of Punishment                                                                                                                   4

Constitutional Considerations                                                                                                        7

Conduct                                                                                                                                          10

Mental States                                                                                                                                19

Homicide                                                                                                                                        27

Justifications, Excuses & Defenses                                                                                                38

Rape                                                                                                                                                51

Attempt Liability                                                                                                                           59

Criminal Law – Introduction

Various actors within the criminal justice system have substantial discretionary power (arrest, prosecution, sentencing)

Federal Sentencing Guidelines reduce Judges Discretion
Congress dramatically reshaped federal sentencing practices in the 1980s by creating the Federal Sentencing Guidelines, which are representative of a trend in many states.

US v. Booker 2005 – Struck down mandatory federal sentencing guidelines for violation of 6th amendment rights of trial by jury, since judge, rather than a jury, decided factual questions for sentencing, but allowed them to be used in an advisory role only

Civil vs. Criminal Wrong –
Criminal law sanctions behavior
Civil wrong prices behavior

Policy Arguments – Talking Points
Finnie – Accused Prostitutes Want Brothel’s Privileged Exposed – Protecting the Privileged
If police protection is a privilege enjoyed by San Francisco brothel patrons, lawyers for three women facing solicitation charges in a prostitution case aim to change the practice.
Tonry – Malign Neglect – Race, Crime, and Punishment in America
Disproportionate black criminality is the product of social and economic disadvantage, much of it traceable to racial bias and discrimination, more overt in earlier times than today.

Theories of Punishment

Retributive – Backward orientated
Premise – Humans generally posses free will and may justly be blamed when they violate society’s mores
Harm Retributivist – Punishment should only be measured in how much actual harm one creates
Culpability Retributivist – Punishment should be measured in how blameworthy your state of mind is
Proportionality – In order for retribution to work, the punishment must fit the crime proportionally to other crimes of lesser or greater degree
Final Report of the Illinois Criminal Code Rewrite and Reform Commission, Final Report
For a system of criminal justice to be fair, liability must be assigned according to the relative seriousness of the offense committed. It is critical that a criminal code’s system of grading offenses recognize all, and only, suitable distinctions among the relative severity of offenses and develop a scheme to grade each offense proportionally to its gravity in light of those distinctions.

Utilitarian – Forward orientated
Premise – People are generally self-indulgent and rational characters
(1) Deterrence
(1) Specific – Instill fear into the criminal
(2) General – Instill fear into society
Bentham – Deterrence works on the pain/pleasure principle (cost/benefit analysis)
Criticism – Deterrence does not work if the criminal does not think rationally
(2) Incapacitation
(1) Collective – all persons convicted of a designated offense are viewed as requiring a pre-determinate amount of incapacitation. Remove them from society and preventing them from causing additional harm.
(2) Specific/Selective – Individualized incapacitation based on predictions that particular offenders will repeat offenses (three-strikes-law)
Criticism – Incapacitation is biased against marginalized groups, measuring employment history and education as a tool for determining likelihood of recidivism. It rests on the assumption that certain criminals are likely to re-offend.

(3) Rehabilitation
Defined – Rehabilitation seeks to change the criminal so that he no longer desires to commit crime, not simply make him scared to commit crime (deterrence)
Criticism – Very difficult to implement. Degree of reprehensibility does not coincide with ability to be rehabilitated
Example – California Prop 36 – Mandatory Rehab for first time non-violent drug offenders. Study showed saved $1.5 Billion.
(4) Denunciation
Defined – Denunciation tries to shape and define social values by educating the public on what acceptable. Its goal is to maintain social cohesion
Criticism – Certain groups who have different social values (gang members) will not feel the effects of denunciation
(6) Restorative Justice
Defined – The goals are to restore the victim by making them whole and restore the offender back into the community

Policy Arguments – Talking Points

Dolinko – Three Mistakes of Retributivism
The inevitability of mistaken convictions mean that some will be pun


Principle of Legality
Nullem crimen sine lege, nulla poena sine lege – No crime without law, no punishment without law
Principle of legality protects citizens from unforeseeable judicial enlargement
3 Elements to the principle of legality
(1) Criminal statutes should be understandable
(2) Criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis
(3) Judicial interpretation of ambiguous statutes should “be biased in favor of the accused

Principle of Specificity – law-makers must be specific in defining the conduct of the crime and for who the crime is applicable to.

Principle of Lenity – Strict Construction of Statutes
Any ambiguity in the statutory language should be resolved in the defendant’s favor

Principle of Proportionality

Article I Section 9      Ex post facto

5th Amendment         Double Jeopardy Clause; Due Process Clause

6th Amendment          In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury.

8th Amendment          Cruel and Unusual Punishment – Proportionality

14th Amendment        State Due Process Clause; Equal Protection

Jury has the power of nullification in criminal cases

Three Strikes Law – Talking Points
Incapacitation – selective and specific, identifying the truly dangerous criminals and incapacitating them
Deterrence – general deterrence . . . sends a message to criminals and makes the cost of reoffending very high
Coffee – Does Unlawful Mean Criminal – Reflections on the Disappearing Tort/Crime Distinction
The dominant development in substantive federal criminal law over the last decade has been the disappearance of any clearly definable line between civil and criminal law. This blurring of the border between tort and crime predictably will result in injustice, and ultimately will weaken the efficacy of the criminal law as an instrument of social control.
Roberts – Punishing Drug Addicts who have Babies: Women of Color, Equality and right to Privacy
Making drug addicted women carrying babies a crime will have the effect of placing fear into such women to seek proper pre-natal care in fear of being reported