Abstract

Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation. As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems. Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control. This essay makes three arguments in response to the idea that society is governed through crime. First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter. Second, it analyzes the range of different political dynamics affecting criminal justice - including some beyond the scope of Simon's project - and considers their effects. Though aspects of the governing through crime phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation. The institutional realities identified with governing through crime - including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention - draw political support from multiple sources, not all problematic. This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role. Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration. That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state.