Governing through crime — the case of the European Union

AuthorEstella Baker
DOI10.1177/1477370810362836
Publication Date01 May 2010
Date01 May 2010
SubjectArticles
Article
Corresponding author:
Estella Baker, School of Law, University of Sheffield, Bartolomé House, Winter Street, Sheffield S3 7ND, UK
Email: e.baker@sheffield.ac.uk
Governing through crime – the
case of the European Union
Estella Baker
University of Sheffield, UK
Abstract
In Governing through Crime, Jonathan Simon offers an ‘interpretation’ of contemporary practices,
discourses and experiences of the state in the USA that aims to provide a ‘thick’ account of the use
of crime as a governance strategy. In support of his argument, he cites a variety of constitutional,
cultural, economic, historical, political and social factors. Many of them are demonstrably US-specific.
Therefore, any potential for exploring the application of his ideas to another governmental entity
might appear to be precluded. This article challenges that supposition, investigating their possible
relevance to an understanding of the European Union’s evolving, and increasingly significant, role
as a penal actor.
Keywords
Area of Freedom, Security and Justice, crime strategy, European Union, governance, third pillar.
Introduction
In his recent monograph, Governing through Crime, Jonathan Simon (Simon, 2007)
offers an ‘interpretation’ of contemporary practices, discourses and experiences of the
state in the USA, with the aim of providing a ‘thick’ account of the use of crime as a
governance strategy (Simon, 2007: 5). He argues that the figure of the ‘crime victim’ has
ascended to become the idealized political subject of legislation. This has resulted in a
material shift in the underlying premise that is used to legitimize governmental activity
and created new opportunities for governance. An over-exclusive focus on the (pur-
ported) interests of victims now justifies responses to crime problems that are no longer
proximate and proportionate, and therefore stray beyond the established domain of crim-
inal law. Thus, the civil and political order has become structured around the problem of
crime and the traditional business of ‘governing crime’ has morphed into one of ‘governing
through crime’.
Simon’s analysis relies on a variety of constitutional, cultural, economic, historical,
political and social factors, many of which are demonstrably US-specific. On the surface,
European Journal of Criminology
7(3) 187–213
© The Author(s) 2010
Reprints and permission: sagepub.
co.uk/journalsPermissions.nav
DOI: 10.1177/1477370810362836
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188 European Journal of Criminology 7(3)
that specificity might imply that there is limited scope for using his description as the
basis for an equivalent reflection on whether the European Union (‘the Union’) might
also be turning towards the use of crime as a tool of governance. However, this article
seeks to refute that view.
Simply because there are structural and contextual differences from the USA does not
necessarily mean that the Union lacks the necessary means and impetus to develop its
own version of ‘governing through crime’. Nor, if it does not already show signs of
adopting such a strategy, does it guarantee that it will not do so in the future. And, con-
versely, if there is evidence that the Union may be behaving in a manner that is consistent
with the ‘governing through crime’ idea, that finding may indicate something telling
about the current mode of governance in two contemporary liberal democratic societies
(Simon, 2007: 23). Furthermore, beyond these questions of comparability, this enquiry
has a wider value.
At a basic level, awareness of the extent to which the Union has emerged as an actor
in the penal field is insufficient. As a result, its underlying strategy has not been subject
to the measure of scrutiny that its growing importance merits. Coupled with this gap in
critical investigation, it is notable that a remarkably small proportion of the intellectual
effort that is being invested in analysing the Union’s governance is directed at its activi-
ties in the criminal law field. Placed in that context, any genuine attempt to shed analyti-
cal light on the nature and trajectory of the Union’s emerging strategy promises to address
important deficiencies in our understanding of its evolving identity as a governmental
entity. Furthermore, an additional benefit of the approach that is adopted here is that it
offers an external vantage point from which to detect features and tendencies that may
not be as visible from a more conventional internal analysis of Union activity (e.g.
Fletcher et al., 2008; Mitsilegas, 2009; Peers, 2006).
One reason the Union’s role as a penal actor is so poorly understood is that the mecha-
nisms through which it has acted to date have been fragmented, opaque and immaturely
developed. The first section of this article therefore provides background information
regarding the Union’s competence over matters relating to crime and how relevant poli-
cies are formed. The second section then considers why the Union may either have opted,
or be in the process of opting, to follow a strategy of ‘governing through crime’. The
third evaluates the evidence that the Union may be following this path, and assessing its
strength in the light of any factors that might serve to combat such a tendency. The article
concludes by assessing the balance of the arguments and asking whether, and how, it
might shift, particularly in the light of the treaty reforms that have followed the entry into
force of the Treaty of Lisbon on 1 December 2009 (‘the Lisbon reforms’).
The European Union and penal competence
During the last decade, criminal law and justice have become one of the most prominent
targets of European integration (Baker and Harding, 2009; Monar, 2002). This is remark-
able because it was not until the original Treaty on European Union (‘TEU’) entered into
force in 1993 that the Union acquired a dedicated legal environment to facilitate coopera-
tion in the penal sphere. Furthermore, when that environment – the so-called ‘third pillar’
of the Union – was created, it was kept distinct from the sophisticated body of law and

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