CHAPTER 1– (Character of Criminal Law)
Sources of Criminal Law:
1. Common Law: Judge made common law from England. Made a very long time ago. Some of the
2. Statutes: the exact laws that define common law. These are typically based on common law because the
legislatures who enacted the laws first looked to common law.
3. Model Penal Code (MPC): in criminal law, they didn’t make a restatement, rather they made a MPC. It was made
in the hopes that state legislatures would adopt it, at least in part.
4. Constitution:
Criminal v Civil Law:
 Criminal Law: [State v People]
o The defendant is punished, not with monetary punishment, but rather with jail time.
o The defendant is also labeled as a “moral wrongdoer” by a group of his peers. This can feel bad and
carry a very bad stigma. It is the whole society that is condemning the individual. Think of criminal law as
a morality play.
 Civil Law: [People v People]
o Defendant pays the victim through money or something else
o Defendant is usually not morally stigmatized, to the extent at least, as in criminal law.
Theories of Punishment
Why do we care about theories of punishment?
1. When something bad happens, we seek the need to explain it. the criminal law is similar to intentionally hitting
someone in the sense that it is pain being inflicted to someone in your name. for that reason, we should have a
damn good reason to actually punish that person.
2. Is it morally justifiable to punish that particular person, for this particular crime, in this particular case? To
determine whether laws are fair or unfair, it is good to know the theories of punishment that underline those
rules.
A. Retribution:
1. Retribution: because the crime is morally wrong, punishment is morally deserved. It doesn’t take society into
account. It’s simply, this is what you did, this is what you’re going to get. “eye for an eye”
 Key questions: Did the crime cause harm? Punishment vindicates the moral worth of victims by
recognizing the harm they suffered; Was the act blameworthy? If it’s not blameworthy, is it worth
punishing someone?
Basic Idea: people should get what they deserve, and when they commit moral wrongs, they deserve to be
punished for that. Humans possess free will, people have the capacity to freely, willingly, and rationally choose
to do right or wrong. When they choose to do wrong, we are okay with punishing them. When people do wrong,
they choose to take something from society, so they owe a debt to society, punishment is the payment of that
debt. To a retributivist, we punish that person because of this debt, and we punish that person in proportion
to what they have taken from us, and proportional to the moral blameworthiness for causing that harm.
 A retribution person would NEVER be okay with punishing an innocent person.
 Inherently backwards looking. Looks back to the defendants action, then they get what they deserve.
 Only punish the wrongdoer based on the extent of their wrongdoing. Looks at the harm caused, and the
persons blameworthiness in causing that harm to determine how much punishment is deserved
 Public Policy: satisfaction to the victims of the crimes. Public satisfaction of preserving the satisfaction of the
courts.
B. Utilitarian types of punishments: [forward looking, care about the utility of punishment going forward, way the
costs and benefits of punishment (factors looking at society, community, person)]
Basic Idea: starts with the idea that all forms of pain are bad. Punishment for anyone is not good, and crimes are
also not good. So society should punish the evil person, if that punishment would reduce the total future pain to
a greater degree than allowing that person to go unpunished. The criminal is a rational calculator, the criminal
will do a cost benefit analysis of the crime. He will look at what the potential punishment is, the benefit, and
determine if the crime is worth the risk.
 A utilitarianism person MIGHT be okay punishing an innocent person, only if it would do more good than
harm in the future.
1. Deterrence: punishment will set an example and send a message to the general public which will
prevent future crime by deterring others. Society would be best if we prevented this crime.
 Key questions: will punishments send a message
2. Incapacitation: prevent future crimes by disabling this specific criminal. What is best for society is to
lock this person up. It is rationalized only if the return to society is greater than the harm we are
imposing on Jones, and greater than the pain we are imposing on society and Jones’s family.
 Key question: is this person dangerous? Will they do future crimes?
3. Rehabilitation: change the criminals to make them a more productive member of society. What is best
for society is to fix this person.
 Key question: can the defendant be rehabilitated
o
[Costs to utilitarian punishment]: costs to society, cost to the community, cost to the family from the member
who was convicted
o Formula-will commit the crime if [ (reward for the crime * likelihood of obtaining the reward) >
(Punishment for crime * likelihood of being punished)
Usually not applicable to heat of the moment crimes, rather for crimes that require advanced planning
Burden of Proof: All criminal cases require proof beyond a reasonable doubt:
 When we condemn someone, and take away their good name, we must establish a very high burden of proof.
The government must establish the persons guilt in a criminal case beyond a reasonable doubt. The prosecutor
must prove ever element being charged beyond a reasonable doubt. Due process requires that the prosecutor
proves everything beyond a reasonable doubt.
A. Reduces risk of error: reduces risk of erroneous convictions
B. High stakes for the defendant: ∆ can face very bad punishments
C. Social utility: much worse to convict an innocent person than to let one guilty person go free
D. Legitimacy: public confidence in the criminal justice system
E. Imbalance of power: gov has much higher resources than people
F. Community stigma: people in the community really do not like people who are criminals
G. Legitimacy: you want only the truth coming out
Constitutional Limitations:
1. 8th Amendment [Cruel and Unusual Punishment]
a. It is unconstitutional to criminalize merely being an addict (Robinson v California)
b. You can punish actions that threaten public health and safety even if they are not voluntary (like being
drunk in public, even if you are an addict, and you are homeless) (People v Kellogg) You can’t criminalize
the condition, but you can criminalize the effects of the condition (he was in public threatening people
and doing things which are punishable–retributive)
2. Proportionality [Sentencing]
a. FROM SENTENCING SECTION
3. Fifth Amendment [Due Process]
4. Frist Amendment [Child Porn cases]
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Statutory Interpretation:
o Realist (Judicial power): Interpreted the statute pragmatically, to achieve sensible results that the public
would support.
 Critiques: sometimes what the public wants is not what the public needs
o Formalist (Legislature supremacy): interprets the statute in its formal meaning whatever the
consiquences. The legislature is the person who makes the law, and we should follow that. Judges are
robots who do it.
 Critiques:
 Precredit: previous decisions, especially the judge-created exception for self defense,
seem incompatable with a rigid and literal interpretation of the text
 Unexpected results: following the text literally sometimes produces results the
legislature would not approve, in situations the legislature never considered
 Counter majoritarian: a result that the public would appose.
o Legal Process: you interpreted the statute with its original spirit not purley not in its literal text. Judges
can fill in the gaps because judges cant guess every situation.
 Statutes often have multiple purposes or confecting purposes. legislatures are better equipped
to decide what conduct is criminal. Whose by filling "gaps" in statutes, judges give legislatures
incentives to punt short circuiting the democratic process.
Case
Rummel (1980)
Sentence
Life
Parole?
Yes, after 10 years
Solem (1983)
Life
No
Harmelin (1991)
Life
No
Ewing (2003)
Life
After 25 years
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Crime(s)
Theft, after two
nonviolent
felonies
Bad check, after
six nonviolent
felonies
Possessing 570g of
crack cocaine
Shoplifting, after
three burglaries
and one robbery
Result
OK
Violates 8th
amendment
OK
OK
CASES
H. Who Defines Crimes?
Regina v Dudley & Stephens–Queen’s Bench–1884
∆’s lost at sea, two of them voted to eat another person who was on the verge of death to save themselves.
 Using common law reasoning, the defendants would be guilty of murder. The question before the court was
whether or not they should bend the rules to allow the seamen to escape the death penalty.
 The court defined that it is best to deter this type of punishment, so they ruled that the seamen were guilty.
 Example of a Deterrence punishment
Lon Fuller, The Case of the Speluncean Explorers
Four defendants were trapped in a cave exploring accident. They drew sticks, the looser was eaten against their will.
 Approaches to Statutory Interpretation:
o Realist (Handy): Interpret the statute pragmatically, to achieve sensible results that the public would
support. If judges do this, they really won’t admit to it. do what the public wants, within reason.
 Critiques:
o Formalist (Keen): Interpret the statute according to its natural meaning, whatever the consequences.
The legislature is the person who makes the law, and we should follow that. Judges are robots who do it
 Critiques: Precedent– Previous decisions, especially the judge-created exception for selfdefense, seem incompatible with a rigid and literal interpretation of the text; Unexpected
Results–Following the text literally sometimes produces results the legislature would not
approve, in situations the legislature never considered; Countermajoritarian– No one doubts
that the result reached through a literal reading of the text is democratically unpopular.
o

Legal Process (Foster): Interpret the statute consistent with its underlying “spirit” or purpose, not its
literal text. Judges can fill in the gaps because the legislature can’t guess every situation.
 Critiques: Purpose-Driven Interpretation Is Lawmaking–leads us to pick a sole purpose, even
though there might not be one sole purpose. Statutes often have multiple purposes, or
conflicting purposes. Discerning the purpose of statutes is a choice, and thus a disguise for
judicial lawmaking; Purpose-Driven Interpretation Is Impossible–Indeed, statutes often have no
purpose besides legislators’ self-interest (public choice theory); Institutional Competence–
Legislatures are better equipped to decide what conduct is criminal. Worse, by filling “gaps” in
statutes, judges give legislators incentives to punt, short-circuiting the democratic process.
Approaches to Seperation of Powers:
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o

Judicial Legitimacy (Handy): The power of courts depends on democratic approval. Judges should reach
popular results, even if the decision process is political.
o Legislative Supremacy (Keen): Only legislatures have the power and competence to make law. Judges
are duty-bound to follow it, regardless of their own political or moral views.
o Intelligent Servants (Foster): Legislatures cannot anticipate every situation. By interpreting statutes to
advance the legislature’s purpose, judges do what the legislature would want.
How should we define crimes:
o Legislature: act prospectively. Are able to do research. Supreme in planning.
o Courts: they decide cases on what Is criminal. They act retrospectively. They don’t have a lot of research.
Important in application.
o Defenses:
People v Kellogg [what is the issue in this case?]
∆ is an addict, he was caught being drunk in public, he is arguing, based on a past case which ruled it was
unconstitutional to punish addicts for being an addict, that it is unconstitutional to punish a homeless addict to be
high/ drunk in public.
 Kellogg argues that the statute is “Unconstitutional as applied” as opposed to “Unconstitutional on its face”
 This is an application of a punishment is retributive argument: Kellogg has done something morally wrong
(broken the law), so he deserves punishment for this.
 Powel v Texas: Outcome: You can punish actions that threaten public health and safety even if they are not
voluntary (like being drunk in public, even if you are an addict, and you are homeless)
Robinson v California: You can’t criminalize the condition, but you can criminalize the effects of the
condition (he was in public threatening people and doing things which are punishable–retributive)
 Due Process: prohibits vague criminal defenses. The law needs to be understandable enough to deter (put
on notice), and not so open that enforcement is arbitrary (City of Chicago v. Morales*)
Nash v United States
Welfare benefits stopped on notice of fraud; no hearing, based on anonymous tips
 “Unconstitutional on its face” due to vagueness issue
 Vague statutes are unacceptable not just because they deny a law-abiding person fair notice, but also because
they “may authorize and even encourage arbitrary and discriminatory enforcement” by police and prosecutors
 Defendant is excued from liability that the statute is so vague that people of common intelligence would not
understand what the rule is
 Statutes with no “core” criminal act are usually vague, those with a core but have a “blurry edge” are probably
going to be okay.
 A statute is "void for vagueness" and unconstitutional as a matter of due process, if it:
o Fails to afford people of ordinary intelligence fair notitice sufficient to allow them to confirm their
conduct to the law; or [due process issue]
o Authorizes of even encourages arbitrarily or discriminatory punishment? []
 Because of this decision, criminal statutes are free to use reasonableness standandards
Connley v General Construction
[sources of criminal law]
Gray v Kohl [2(b) was unconstitutionally vague]
Disability benefits stopped upon review of medical records
 Not a criminal case. Unconstitutional on its face.
 2(b): requires that anyone who is on the school grounds without "legitimate business" will be in violation of
subsection (2)(b)–this was held to be unconstutionally vague.
o This is because they did define legitimate business.
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2(b) was saved because it doesn’t fail under pt 1, or pt 2 under the rule
2(b) was struck down, 2(c) was not struck down. It was too vague to know whether you were on notice or not
Test: SLIDE 31 statutes are unconstitutionally vague if they fail to provide notice required to let normal people
know what is prohibited; or may authorize or excuse arbitrary and discriminatory application of the law
Absolute construction is not required
The application itself must be whats argued over, you cant argue in the hypothesis of an application of a law
Statutes are vunerable when over broad, high ration of unclear to clear, or liability turns on perception of others
United States v Williams [sources of criminal law]
Attachment to real property to secure pending/disputed tort proceeding
 Case about saving a statute. The last statute was held as vague
 Previous child porn act was vague.
 Four ways to save a statute [SLIDES]
o Reasonable precision: due process requires only reasonable precision, not absolute certainty. Flexible
standard are not permitted [Nash]
o Saving construction: interpret narrowly to avoid problems of overbreadth. Constructing the statute to
require scienter (a mental state) is especially common.
o Defendant's actions: a person who engages in conduct that is certainly prosecuted [williams]. Even if the
statute seems vague, lets push the vagueness question to another time
o Settled meaning: statutory language that appears vague may have preexisting [nash?]
 Vagueness: [a common error on the exams is to automatically say its vague]. Signs statutes might be vague.
[SLIDES]
o Overbreadth: seems to apply to many harmless, constitutionally protected, conduct
o High ratio of clear to unclear applications: if there is an obvious clear meaning to the statute its probably
not vague. [# of clear / unclear applications]
o Liability of defendant turns on perception of others [coats]: when the statute uses words that depend
on other people’s reactions [do something that annoys people, doing something with no apparent
purpose, ext.]
 Obscenity–sexually explicit speech with no socially redeeming value by reflecting to community standards.
 Substantial overbreadth: a criminal statute is unconstitutionally overbred in violation of the first amendment
only if it is substantially overboard relative to its plainly legitimate sweep.
Sentencing
State v Thompson
∆ Charged with three counts of sexual assault, judge decided not to put him in jail bec hes small
 To determine if the sentence imposed is excessively lenient, we will look at:
1. The nature and circumstances of the offense;
2. The history and characteristics of the defendant;
3. The need for the sentence imposed:
a) To afford adequate deterrence to criminal conduct;
b) To protect the public from further crimes of the defendant;
c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; and
d) To provide the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner; and
4. Any other matters appearing in the record which the appellate court deems pertinent.
 Four types of sentencing:
1. Indeterminate Sentencing: Judges are given essentially unlimited discretion to choose a sentence within a
broad statutory range. Parole boards enjoy similar discretion to release offenders upon finding that they
are rehabilitated. Cant be appealed
 Advantages: highly individualized, maximum flexibility for judges
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
Criticisms:
 unprincipled, judges’ intuitions vary widely
 serious risk of unwarranted disparity between similar situated offenders
 risk of discrimination, conscious or unconscious
 “soft on crime”
 “truth in sentencing”:
2. Guided discretion: Judges have broad discretion to sentence within statutory ranges, but guided by a
statement of sentencing purposes that must be considered along with other factors that may not be
considered. Appellate review may be available to correct outlier sentences.
 Advantages: highly individualized, substantial flexibility for judges, more coherent, shared set
principles
 Criticisms:
 Purposes conflict, with no prioritization among them
 Disparity, other disadvantages of indeterminate sentencing
3. Statutory determination sentencing: judges have discretion to impose sentence within a statutory range,
but must begin from a presumptive or advisory sentence (or group of sentences) within that range. The
code may supply a non-exhaustive list of eligible aggravating and mitigating factors. Appelate review can
correct outliers.
 Advantages:
 Starting point sentence increases consistency
 Appellate review can correct outlier sentences
 May be accompanied by abolition of parole and other “truth in sentencing” reforms
 Criticisms: advisory sentence may be arbitrary, may product unwarranted uniformity
4. Sentencing guidelines: A sentencing commission promulgates detailed rules for calculating a narrow
sentencing range, based on the offense of conviction, the offender’s criminal history, and other factors.
Judges have limited power to depart from the guideline range.
 Advantages: guidelines and appellate review promote consistency, expert agency can replicate
existing practices or pursue other goals
 Criticism:
 too complex and time consuming, too inflexible
 too difficult to depart from guidelines
 too severe, especially with legislative meddling
Ewing v California
Π stole golf clubs from a sports store. when he was caught, it was his 4 th felony, and, due to the 3 strikes rule, he was
sentenced to life, w/ parole after 25 years.
 Ewing’s 8th amendment cruel and unusual claim was ultimately unsuccessful. Sentence of 25 years to life
imprisonment for shoplifting golf clubs is not grossly disproportionate as part of California’s “Three Strikes and
You’re Out” sentencing scheme for repeat offenders.
 The 8th amendment prohibits:
o death sentences for particular offenses (Kidnapping, rape, child victim) and particular groups of people
(juvenile (under 18), and intellectually disabled)
o life in prison, without parole, prohibited for juvenile offenders in some circumstances (mandatory Life
w/ out parole, offender not habitual (person can’t be changed), non-homicide offenses)
o For noncapital sentences, the Eighth Amendment forbids only “extreme sentences” that are “grossly
disproportionate” to the crime.
 Factors: gravity of the offense, gravity of the penalty, same crime in different jurisdictions,
different crimes in same jurisdiction
th
o The 8 amendment allows states free to choose from various forms of criminal punishment
 In this case, Recidivism (repeat criminals) was the target of the 3 strikes rule. so, California can
use this as grounds to justify the rule.
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
The Court does not sit as a “superlegislature” to second-guess the policy choices of lawmakers.
Noncapital sentences are not grossly disproportionate so long as the state has a “reasonable
basis” to believe that they advance its criminal-justice goals.
When no single opinion is joined by a majority of Justices, the holding of the Court is the position taken by the
Justices who concurred in the judgment “on the narrowest grounds.”
o This sentence is permissible because it is not grossly disproportionate (3 votes) -This one Wins
o This sentence is permissible because noncapital sentences can never be disproportionate (2 votes)
o This sentence is grossly disproportionate in violation of the Eighth Amendment (4 votes)
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