Crime. Punishment. Eric Garner.

My graduate seminar this semester used the framing of “crime and punishment” and the abyssal relation between the two as the starting point for reading through much of Foucault’s 70s work performing genealogies of power as well as Derrida’s 1999-2000 seminar on the death penalty and ancillary works. A common point, if often unmentioned, for both is the second essay of Nietzsche’s Genealogy of Morals, where Nietzsche not only describes the pairing of crime and punishment as based in the earliest barter economies (thus the balance of scales that we now use for justice, but which were of course first used in trade), but also argues that crime was invented for the sake of punishment, for a given pleasure it provides which is then disavowed under the banner of proceduralism. In any case, I had argued in the course that there is no crime without punishment and vice-versa, that a crime is only such if there is a given punishment, etc. Not exactly breaking ground there conceptually, but nevertheless opening the way for thinking an-economic forms of justice, such as Foucault was broaching in late 70s interviews on the prisons and the end of the death penalty in France, and which forms the basis for all of Derrida’s late thinking of the relation of justice to the law, unconditional forgiveness to its conditions, and of course, the sovereign fiction of the knowability of death for one to be able to use it as a “commensurable” punishment for a given crime in the first place. But of course there is another non-economic relation of crime and punishment, which is sovereigntist: in the killing of Eric Garner, we have the crime without the punishment for the officer involved, and in his killing, we have the punishment without the crime, which of course if the (il)legality of sovereign force in the state of exception that haunts the streets and byways of American cities from LA to Ferguson to NY. This explains the somewhat ironic, even necessarily hypocritical charge of the left: to want at once the end of a given legal paradigm (prison as the answer to everything) while also wanting those who enforce the law to be at the end of its sharp stick as well. But this hypocrisy is not self-defeating or even problematic: politics is necessarily hypocritical, since the point is that we can only ever speak from within a given set of conditions (we have this legal system such as it is) and it can only be perfectable (but without ever the hope for a telos of perfection) through its revisability in the name of displacing this (un)just pairing of a said crime and its commensurability in a given punishment. This isn’t a relativism but politics as what it is, always a question of performative strategies. But nothing is harder–as we see with each of these grand jury decisions–than making sovereignty in all its localities face itself, punish itself, and therefore begin its dissolution.