The Hidden Customary Criminal Law Endorsing Civilian Acts of Anti-Black Violence

Eric J. Miller

Ekow Yankah’s article, Deputization and Privileged White Violence, makes a stark claim: every state and territory in the United States has a legal-power-conferring norm enabling “violence aimed at racial minorities, particularly Black people, by White people who, as private citizens, take themselves to be innately authorized to police racial minorities.” (P. 709.) He calls this legal authority “deputization.”

Yankah’s article is a work of conceptual-normative criminal law theory.¹ His claim is that deputization is a normative feature of our society, and as such “not easily amenable to empirical verification.” (P. 715.) His methodology is therefore one of “philosophical reconstitution” of the concept of deputization as a “sociologically and historically embedded” legal power. Nonetheless, he wants us to take this claim head on: he really means that deputization is a currently-existing legal norm empowering white people to police Black people using violence to seize Black people they think are dangerous, including by using deadly force. Deputization, Yankah claims, is legal in every jurisdiction in the land. Worse, because that private policing norm is available only to white people it is, in part, constitutive of what it means to be a white person in the United States.

Were Yankah describing only a widely shared social norm, that would be momentous enough. However, Yankah’s claim is more profound: despite Reconstruction, the civil rights revolution, and the constitutional, statutory, and case-law doctrines invalidating enslavement, segregation, and various forms of racial discrimination, there has existed an historically persistent, universal (in the United States, at least) legally enforceable norm that has escaped these attempts at express legal repudiation. Instead, deputization endures as some type of law² that hides in plain sight to empower white people to use (often deadly) violence to regulate the behavior of Black people they characterize as dangerous.

There are a few other normative claims that Yankah makes on the way,³ but the core thesis is that to be a white person in the United States is to have the benefit of a law that allows you to use violence to regulate the behavior of Black people you perceive to be dangerous. How could Yankah establish that such a legal power exists?
The usual way of explaining the existence of a legal power is by pointing to some express law—a statute or a case—that, by the law-creating act of some official or body, serves as the source of that power. However, there is another source of law I think Yankah identifies here: customary law. Customary law is neither express nor made by individuals (whether legislative bodies or judges). Instead, customary law is created by the behavior of legal officials, usually judges, collectively in recognizing through their conduct some practice as having the status of law.

Normally, theorists point to judge-created law when discussing contemporary customary law. Yankah does canvas a history of statutes, cases, and common-law doctrines expressly creating civilian powers and even duties to arrest as part of the earlier history of deputization. However, since the 1960s, judge-made and legislated laws have prohibited anti-Black discrimination as a matter of formal law. How could anti-Black laws persist in the face of these express legal norms?

One answer is that the power to create law does not reside solely with the legislature or the judiciary. While a variety of legal theorists, including Joseph Raz and John Gardner, point to the practice of judges and other legal officials, including police and prosecutors, as having the ability to create customary legal norms, for the most part, these theorists concentrate on the law-creating powers of judges and not these law-enforcement officials. One of the innovative aspects of Yankah’s article is that he asks us to attend to law-enforcement officials’ ability to create customary norms by treating as binding their practice of nullifying criminal laws that conflict with the ability of white people to use often-deadly violence against Black people they characterize as dangerous.⁴

Yankah’s argument can be a little normatively tricky at times, but one version is that there is not simply a social custom of anti-Black violence (what Bentham calls a custom in pays, or of the people) but also a legal custom of non-prosecution of that violence (Bentham’s custom in foro) practiced by legal officials, in particular, police and prosecutors. Social customs can themselves be legally recognized in a number of ways, one of which is by also becoming a legal custom. To illustrate the point, consider a phenomenon identified by Mitchell Berman as “temporal variance.”⁵

In basketball games, referees do not enforce foul rules toward the end of important matches. Temporal variance is not an act of discretion on the part of one or two officials; it is a routinely applied part of the game, and players, officials, and fans commonly criticize those officials who flout this practice. But note: the temporal variance rule, though applied uniformly, is nowhere stated in the rules of basketball. Instead, the referees practice a form of official nullification that allows the players to engage in conduct that would be contrary to the rules on another occasion. This shared official activity creates a customary norm of basketball, enforced by the norm-applying officials, and relied upon by referees, players, and spectators alike.

It’s not always clear whether Yankah thinks there is a socio-official customary norm in each legal system affirmatively empowering white people to use violence to police Black people, or a separate official customary norm, in this case, of executive official nullification, that recognizes the social customary norm of white anti-Black violence. I think a sympathetic reconstruction of Yankah’s argument is that legal officials, especially police and prosecutors, engage in a form of nullification and treat certain aspects of white supremacy as normative for their enforcement or application of the law. These officials’ nullifying acts have a different legal status than non-officials’ (e.g., juries)⁶ because officials can create customary law by what they do; non-officials cannot (unless their customs are recognized as law). Thus, there is a difference between judicial or prosecutorial nullification (legal custom) and jury nullification or even widespread community pressure not to prosecute (social custom).

Even this weaker claim, of a law-enforcement custom of nullification, is sufficient to support the phenomenon of legal deputization, and raises some profound questions of sovereignty and criminalization: in other words, of who makes the criminal law. First, the issue of legal pluralism—that there are multiple, overlapping sources of law regulating the process of seizure in this country. Yankah adds another one to the mix of federal, state, and municipal law: the customary law of the police and prosecutors nullifying deadly racist seizures of Black people by white citizens. Legal pluralism points to the further question of legal sovereignty: do police and prosecutors constitute independent law-making institutions that stand apart from the legislature and courts as sovereign sources of law? Yankah’s article thus engages the political theory of the power and status of the police. Yankah’s article also forces us ask who deputizes the deputy: the state, the (white) community, or some sub-state institution (the county or municipality)? Finally, Yankah presses hard on the decriminalization question: what will it take to prevent prosecutors and police creating an anti-constitutional and anti-democratic—certainly anti-equality—customary law of white deputization? These questions, currently at the fringes of our theories of the police, are only likely to become more central over the coming months and years.

1. See, e.g., R.A. Duff, Punishment, Communication, and Community 35 (2003).
2. See John Gardner, Some Types of Law in Common Law Theory 51 (Douglas E. Edlin, ed. 2007).
3. At different places Yankah calls the white-over-Black policing norm a “right” (P. 716), a “duty” (Pp. 714, 715), a “privilege” (P. 716, and of course, the title of the article), and a “power” (Pp. 714, 773) or “authority” (P. 717).
4. He says as much when he discusses deputization as “the felt legal authorization, reinforced by history and contemporary implicit legal permission, such as a prosecutor’s refusal to press charges or a governor’s pardoning of armed assault.” (P. 767.) See also (Pp. 737-738.) (discussing civilian empowerment through non-prosecution).
5. Mitchell N. Berman, “Let ‘em Play”: A Study in the Jurisprudence of Sport, 99 Geo. L. Rev. 1325, 1327 (2011).
6. In the case of basketball, the referee is an official entitled to interpret, and so their conduct can be a source of law (and so legal pluralism). Jurors, like players, are not officials entitled to interpret, and so their conduct simply expresses social norms.