By Bob Needham
Michigan Law
Violence against Black individuals by white private citizens who believe they have a legal right to their actions should be considered its own specific problem, according to Professor Ekow Yankah.
In a new paper, Yankah makes the case that the phenomenon, which he calls “deputization,” warrants attention separately from violence committed by law enforcement.
“Deputization is the idea that, deeply buried in our social and legal culture, there has long been a tacit permission based largely on racial lines for white people, in particular, to actively police Black people,” Yankah said in a recent interview.
High-profile examples include the deaths of Trayvon Martin, Ahmaud Arbery, and Jordan Neely, but Yankah also points to the way outside individuals have attempted to oversee innercity vote counting, or how people taking goods from stores after a natural disaster might be treated as “survivors” versus “looters” depending on their race.
“When we talk about the state, it’s easy enough to see the disproportionate policing of minority communities. What I’m pointing out is that to only look at the state is to miss the much larger phenomenon.”
In the paper, which is forthcoming in the Stanford Law Review, Yankah explores the historical roots of the problem, demonstrates how the danger is more potent than racist policing, and explains the legal challenges of addressing it.
Yankah—the associate dean for faculty and research and the Thomas M. Cooley Professor of Law—recently answered five questions about the issue:
1. What are the roots of deputization?
Modern policing is quite new. Before the early 1800s, you might have a sheriff or a constable who would just raise a hue and cry. He would tell citizens, “Go get your weapons; we have to go catch this felon.” So the power to turn private citizens into an arm of the state is actually quite old.
The interesting thing is that when the power moved to America, it became heavily racialized. The Constitution allows white slave owners to use force to recapture their slaves. It’s a bedrock principle.
Yet even that, for southern slave owners, was not enough.
So the South insisted on passing the fugitive slave laws in order to permit white bounty hunters to spread across the country and seize purported runaway slaves. This sometimes meant suspected runaway slaves. This sometimes meant whoever was vulnerable enough that you might make some money out of them. So we had this cultural phenomenon where you saw a Black man just snatched out of the North because there was a profit to be made.
This has continued throughout our history.
Think of “sundown towns,” where if Black people were in counties after sundown, ordinary people may be permitted to hold them or call the police. Everybody’s eyes turned into surveillance mechanisms. One of our cultural myths is that this was a small smattering in the South, but in fact, it’s across the country.
If you look at every one of our historical moments, if you look at citizen’s arrest laws after the 13th Amendment—even today, if you look at things like Nextdoor or neighborhood watches—these are deeply racialized spaces. You can log onto Nextdoor, and you will see right beside every ad for a used bike, “Hey, I spotted a Black man in our neighborhood.”
—————
2. What distinguishes deputization from other forms of racist violence?
The most important thing is that the people who are acting on this racist violence do not view themselves as vigilantes. They’re not afraid, and they’re not ashamed. They believe that they’re empowered by the law to act this way. This is very dangerous.
The fact that someone thinks they’re acting in the name of the law, in a way that demands that other people must view themselves as subservient, means that not only is the danger heightened, but the anger and the volatility, the explosiveness of the situation, is ramped up.
—————
3. Why is deputization actually a more potent danger than racist policing?
Police shape the way we think about and move through the world. But it’s important to realize the much broader phenomenon that lots of people think that they have permission to police you, no matter who they are.
Sometimes this happens if you’re a racial minority, sometimes this happens on gendered lines, sometimes this happens on immigration status lines. But if you are the vulnerable person, you are well aware that wherever you are, people think that they can police you. It’s this constant effect of recognizing that you must ward off other people’s assumptions that you’re dangerous, because they may act on it.
Of course, it’s also deeply affecting in your personal life.
To me, the most devastating thing is how deeply and intimately it affects the way I think about raising my two young sons. I am aware they will very quickly be seen as young Black men in the world; they will be open to certain dangers that other people are not.
So this paper is not just an analytical piece; it’s working through how minorities engage with this latent danger in the world—in a way that I see in my life and in the way I have to raise my children.
—————
4. We hear about some of these cases—typically when they result in a death—but not about lower-profile incidents. What do we know about the scope of the problem?
These are not things that are amenable to easy measurement.
However, the last two decades have seen interesting, and now increasingly replicated, data about how even when you control for lots of other variables, Black people have worse health outcomes.
The question is, from where is that coming?
One of the things that scientists are beginning to see is that stress levels of Black Americans are just systematically higher. After a little digging, it becomes clearer where those stress levels are coming from: constant worries about racial interactions.
The other question about scope is, how ubiquitous is this?
I say it’s everywhere all the time. But of course, many of my white colleagues would say, “I don’t know what you mean. It’s not like I would walk around arresting people.”
We have to wrestle with that. We have to realize that there are threats that are latent and ever present, even if only a few people would actually seize that power and impose violence.
5. Why are these problems so hard to address?
There’s the old quip that when all you have is a hammer, everything looks like a nail.
So it’s not surprising that we as law professors are constantly tempted to draft a terrific statute to solve whatever problems we see in the world.
Yet when people believe they are empowered to force you to do what they want, then the idea that we can just pass another criminal statute to fix it is obviously going to fail.
What we really have to do is find a way of disrupting this kind of social power where people think, “Oh, I don’t like this Black guy’s music; I can force him to turn it down. Oh, I don’t like this little girl selling water. I can force her to stop.”
Whereas in conditions of real equality, people instead think, “Even if I wish this weren’t happening, I can’t use force to make the world just be exactly the way I want.”
Michigan Law
Violence against Black individuals by white private citizens who believe they have a legal right to their actions should be considered its own specific problem, according to Professor Ekow Yankah.
In a new paper, Yankah makes the case that the phenomenon, which he calls “deputization,” warrants attention separately from violence committed by law enforcement.
“Deputization is the idea that, deeply buried in our social and legal culture, there has long been a tacit permission based largely on racial lines for white people, in particular, to actively police Black people,” Yankah said in a recent interview.
High-profile examples include the deaths of Trayvon Martin, Ahmaud Arbery, and Jordan Neely, but Yankah also points to the way outside individuals have attempted to oversee innercity vote counting, or how people taking goods from stores after a natural disaster might be treated as “survivors” versus “looters” depending on their race.
“When we talk about the state, it’s easy enough to see the disproportionate policing of minority communities. What I’m pointing out is that to only look at the state is to miss the much larger phenomenon.”
In the paper, which is forthcoming in the Stanford Law Review, Yankah explores the historical roots of the problem, demonstrates how the danger is more potent than racist policing, and explains the legal challenges of addressing it.
Yankah—the associate dean for faculty and research and the Thomas M. Cooley Professor of Law—recently answered five questions about the issue:
1. What are the roots of deputization?
Modern policing is quite new. Before the early 1800s, you might have a sheriff or a constable who would just raise a hue and cry. He would tell citizens, “Go get your weapons; we have to go catch this felon.” So the power to turn private citizens into an arm of the state is actually quite old.
The interesting thing is that when the power moved to America, it became heavily racialized. The Constitution allows white slave owners to use force to recapture their slaves. It’s a bedrock principle.
Yet even that, for southern slave owners, was not enough.
So the South insisted on passing the fugitive slave laws in order to permit white bounty hunters to spread across the country and seize purported runaway slaves. This sometimes meant suspected runaway slaves. This sometimes meant whoever was vulnerable enough that you might make some money out of them. So we had this cultural phenomenon where you saw a Black man just snatched out of the North because there was a profit to be made.
This has continued throughout our history.
Think of “sundown towns,” where if Black people were in counties after sundown, ordinary people may be permitted to hold them or call the police. Everybody’s eyes turned into surveillance mechanisms. One of our cultural myths is that this was a small smattering in the South, but in fact, it’s across the country.
If you look at every one of our historical moments, if you look at citizen’s arrest laws after the 13th Amendment—even today, if you look at things like Nextdoor or neighborhood watches—these are deeply racialized spaces. You can log onto Nextdoor, and you will see right beside every ad for a used bike, “Hey, I spotted a Black man in our neighborhood.”
—————
2. What distinguishes deputization from other forms of racist violence?
The most important thing is that the people who are acting on this racist violence do not view themselves as vigilantes. They’re not afraid, and they’re not ashamed. They believe that they’re empowered by the law to act this way. This is very dangerous.
The fact that someone thinks they’re acting in the name of the law, in a way that demands that other people must view themselves as subservient, means that not only is the danger heightened, but the anger and the volatility, the explosiveness of the situation, is ramped up.
—————
3. Why is deputization actually a more potent danger than racist policing?
Police shape the way we think about and move through the world. But it’s important to realize the much broader phenomenon that lots of people think that they have permission to police you, no matter who they are.
Sometimes this happens if you’re a racial minority, sometimes this happens on gendered lines, sometimes this happens on immigration status lines. But if you are the vulnerable person, you are well aware that wherever you are, people think that they can police you. It’s this constant effect of recognizing that you must ward off other people’s assumptions that you’re dangerous, because they may act on it.
Of course, it’s also deeply affecting in your personal life.
To me, the most devastating thing is how deeply and intimately it affects the way I think about raising my two young sons. I am aware they will very quickly be seen as young Black men in the world; they will be open to certain dangers that other people are not.
So this paper is not just an analytical piece; it’s working through how minorities engage with this latent danger in the world—in a way that I see in my life and in the way I have to raise my children.
—————
4. We hear about some of these cases—typically when they result in a death—but not about lower-profile incidents. What do we know about the scope of the problem?
These are not things that are amenable to easy measurement.
However, the last two decades have seen interesting, and now increasingly replicated, data about how even when you control for lots of other variables, Black people have worse health outcomes.
The question is, from where is that coming?
One of the things that scientists are beginning to see is that stress levels of Black Americans are just systematically higher. After a little digging, it becomes clearer where those stress levels are coming from: constant worries about racial interactions.
The other question about scope is, how ubiquitous is this?
I say it’s everywhere all the time. But of course, many of my white colleagues would say, “I don’t know what you mean. It’s not like I would walk around arresting people.”
We have to wrestle with that. We have to realize that there are threats that are latent and ever present, even if only a few people would actually seize that power and impose violence.
5. Why are these problems so hard to address?
There’s the old quip that when all you have is a hammer, everything looks like a nail.
So it’s not surprising that we as law professors are constantly tempted to draft a terrific statute to solve whatever problems we see in the world.
Yet when people believe they are empowered to force you to do what they want, then the idea that we can just pass another criminal statute to fix it is obviously going to fail.
What we really have to do is find a way of disrupting this kind of social power where people think, “Oh, I don’t like this Black guy’s music; I can force him to turn it down. Oh, I don’t like this little girl selling water. I can force her to stop.”
Whereas in conditions of real equality, people instead think, “Even if I wish this weren’t happening, I can’t use force to make the world just be exactly the way I want.”
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