“crime is a first response”
Jonathan Simon, Governing Through Crime, p14:
It is a truism well worth remembering that behind all forms of law, public or private, lurks a background threat of violence within the law, generally embodied in the penal or criminal law. So if you refuse to perform on a binding contract, the other party may bring a civil law suit against you. If your adversary prevails and obtains a monetary judgment against you, your failure to honor it will ultimately result in a forcible taking of your assets, any resistance to which will generally constitute a criminal act. In this sense governing through crime might seem to state a rather unsurprising syllogism. Since all governance, public or private, in American society takes places within a structure of legal authority (of public officers but also parents, employers, property owners, and so on), and since all legal authority ultimately rests on the threat of lawful violence within the criminal law, all governance is “through” the implied threat of making resistance at some stage a “crime.” This is a useful balance to the frequent celebration of liberal capitalist societies as ones governed by consent and through the instruments of free exchange (Cover 1986). The distinction I wish to draw with the way that American democracy has been deformed by the war on crime is one of priority. In the conventional syllogism, crime (and the violence it authorizes) is generally a last response, the end point of a pathway of resistance to lawful governance. What is visibly different about the way we govern since the 1960s is the degree to which crime is a first response.
