While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under the positivistic orthodoxy, the scope of these doctrines is left to state legislatures to determine. The presumption of innocence and the ban on double jeopardy thus suggest the needfor a substantive conception of the notion of 'an offense. This Article attempts to provide a jurisprudential framework for developing such a conception. It proceeds from the idea that we have a presumption against the use of the criminal sanction, stemming from the commitment to a background right to liberty our constitutional jurisprudence contains. The use of the criminal sanction is justified only if the infringement of liberty it imposes is sufficient to overcome that presumption. This requirement of justification in turn suggests boundaries on the notion of an offense: The definition of an offense must be constructed in a way that makes the infringement of liberty justified in light of the harm the prohibited conduct inflicts. Copyright
Finkelstein, Claire Oakes, "Positivism and the Notion of an Offense" (2000). Faculty Scholarship. 1000.