Eric J. Miller
89 Geo. Wash. L. Rev. 1607
The enforcement of criminal law by the public police is justified as enforcing civility: codes of public conduct that ensure civilians can walk down the street feeling confident about their safety and security. Civility is, however, a socially contingent phenomenon, one that often reinforces demands to acknowledge and respect some person’s social status or social role. In a society constituted by socially oppressive roles and statuses, criminal law’s enforcement of civility enforces and reinforces that oppression.
In the United States, civility, as experienced and enforced by the public through the law and the police, entrenches a racial hierarchy in which people of color are supposed to know their place, both literally and politically. When people of color appear in spaces that are coded white, or in ways that insist on equality, then they are likely to be characterized as disordering and disorderly. Because policing, for the last forty years, has organized itself around enforcing civility-based norms of public order, often (following the “Broken Windows” model) using off-the-books harassment or even violence, people of color—and especially Black people—along with members of other marginalized groups, are peculiarly vulnerable to police violence. While the police are the means by which this civility-based, public order violence is dispensed, they do so in the name of and with the tacit sanction of vast swaths of the public.
