Deputization and Privileged White Violence

Abstract

A number of high-profile and racially charged killings, such as Trayvon Martin's, Kenneth Herring's, Ahmaud Arbery's and Jordan Neely's, have been at the hands of civilians declaring themselves the law. These deaths stemmed from a phenomenon best described as "deputization." Deputization describes a latent, legal power that has empowered White people to claim authority to enforce the law, as they see it, throughout American history upon racial minorities generally and Black people in particular. This power turned the ancient common law duty to police all felons in England to a specific American common law duty to police Blacks. From the founding clauses of the Constitution, to the Fugitive Slave Acts, to the birth of racist citizen's arrest laws, there has always been an implicit understanding that part of Whiteness in America is a privilege to use private force to police Black people. 

Deputization adds to the literature by not only focusing on racist state sponsored violence but the privilege of racist private violence. Indeed, "deputization" is a more potent danger for Black Americans than racist policing. First, as a matter of magnitude, an inherited assumption among White Americans that they are authorized to violently enforce the law upon Black people dwarfs the reach of the police. Secondly, deputization is clothed in claims of legal authority; its power is amplified because those who act upon it feel they are in the right. Lastly, deputization clarifies the way in which Black-Americans so often move through the world: cautious, alert, or angry; their lives truncated, metaphorically and literally, by the awareness that White people around them claim a power to police them at any time.

Importantly, deputization presents a unique legal challenge because those who impose racial violence in its name do not fear the law; they are confident that they are both authorized by and reinforcing the law. This paper further places deputization in the context of two important areas of criminal theory. It shows how deputization presents another front in understanding critical race theories of criminal law. Simultaneously, it shows why civic, equality-based political theories are particularly insightful in identifying the harms deputization does to our civic bonds. Lastly, the paper shows the lessons of deputization can draw from criminal law abolitionism about the need to change deeper structures than policing while simultaneously cautioning of the dangers of private violence rushing to fill the void.

Keywords: Criminal Law, Critical Race Theory, Law and Philosophy, Law and History, Private Violence, Amhaud Arbery, Trayvon Martin, Jordan Neely, Republicanism, Abolition, Deputization, Citizen's Arrest, Political Theory, Criminal Theory, Rogue Cop, Vigilante, Race Discrimination, Racial Violence