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Excerpted From: Sheila A. Bedi, The Constructed Identities of Asian and African Americans: A Story of Two Races and the Criminal Justice System, 19 Harvard BlackLetter Law Journal 181 (Spring, 2003) (86 Footnotes) (Full Document Not Available)


SheilaBediThe United States' criminal justice system is a modern form of tribal warfare. However, battles have been raging against racial minorities in the U.S. long before the war on drugs was officially declared. The racism embedded in the criminal justice system is born of the same hatred and fear that spawned slavery, Jim Crow, and exclusionary immigration policy. As law is the weapon of choice in these battles, codified hatred has shaped U.S. history. In their seminal work on the development of racial categories, Michael Omi and Howard Winant refer to slavery, segregation and exclusionary immigration policy as “racial projects.” Specifically, Omi and Winant state that “a racial project is simultaneously an interpretation, representation or explanation of racial dynamics and an effort to reorganize and redistribute resources along particular racial lines.”

According to Omi and Winant, racial projects are considered racist when they “create or reproduc[e] structures of domination based on essentialist categories of race.” An essentialist approach to race is one based on stereotypes and generalizations. For example, slavery was justified by assertions that Africans were an inferior race. Asians were restricted from immigrating to the United States because it was Congress's and the Supreme Court's view that Asians could not assimilate. Modern essentialist approaches to race are found in the stereotype of a violent, young African American male and the perception that Asian Americans will always be foreigners.

This country's most invidious racist racial projects were impossible to implement without first defining and separating the races. Slavery, Jim Crow, anti-miscegenation laws, and exclusionary immigration policies all hinged on racial classifications. The United States Supreme Court declared unconstitutional the majority of the racist racial projects implemented by the U.S. government. However, the criminal justice system has replaced slavery, Jim Crow and exclusionary immigration policy as the racist racial project that shapes race in America. The criminal justice system is inherently racialized because people of color and new immigrants are disproportionately represented as both victims and perpetrators of crime. According to Paula Johnson, “not only is race used to identify criminals, it is embedded in the very foundation of our criminal law. Race helps determine who the criminals are, what conduct constitutes a crime, and what crimes society treats most seriously.” This Article explores how an essentialist approach to race is evident in today's criminal justice system. It argues that people of color are similarly situated both inside and outside the racist racial project we call the justice system, and therefore advocates for coalition building between minority groups as a method of combating the “white supremacy” inherent in the criminal justice system.

In Part II of this Article, I discuss the criminal justice system's general contributions to racial formation in the modern United States, and specifically discuss how criminal law enforcement and adjudication shapes what it means to be African and Asian American in this country.

Part III explores the factual circumstances surrounding the deaths of Malice Green, an African American man who was beaten to death by two white Detroit police officers, and Vincent Chin, an Asian American, also beaten to death by two white Detroit autoworkers. Arguably, both men were killed because their killers took an essentialist view of their victims' racial identities. To his murderers, Malice Green ceased to be an unarmed man and was perceived as some sort of violent super predator. Similarly, Vincent Chin, born and raised in the Midwest, was to his murderers a foreign interloper stealing jobs from red-blooded Americans. In Part III, I examine the portrayals of these men, and the commonalties surrounding the adjudication of their accused.

In conclusion, I draw on the lessons learned from the deaths of Malice and Vincent to argue for coalition building between Asian and African American civil rights organizations, particularly on criminal justice issues.

[. . .]

[The criminal justice system in the United States responds to “the other” by “subjecting the other to state violence, it teaches subordination: hurt what is not you, kill it, lock it up, make it go away.” Malice Green and Vincent Chin both paid the ultimate price for being “the other.” They were killed with flashlights and baseball bats respectively, but racism caused their deaths and the racist racial project we call the criminal justice system allowed their killers to escape being held accountable for their crimes in a meaningful way. Faced with this reality, Asian Americans, African Americans, and people of color should recognize their connectedness, negotiate their common agendas and work towards the broad goal of anti-subordination. This means that modern civil rights organizations must reject essentialist constructions of racial identities. Specifically, the cases of Malice Green and Vincent Chin illustrated that the civil rights movement has failed to effect meaningful change in the criminal justice system—both when people of color are suspects and victims of crimes. African Americans civil rights organizations have for too long fought alone to remedy the racial injustices in the criminal justice system. Asian American civil rights organizations and indeed all coalitions interested in justice need to realize that the inequality in the criminal justice system is not just an issue that affects African Americans. Traditional civil rights organizations such as the NAACP Legal Defense Fund and the National Asian Pacific Legal Consortium must collaborate and mobilize their constituents to combat racism in criminal justice enforcement. For starters, civil rights organizations should be collaborating on hate crime sensitivity training for communities, they should work together to provide diversity workshops for local law enforcement and know-your-rights workshops on criminal law enforcement for communities and should pool resources to provide quality criminal defense to racial minorities. When justice is meted out to victims and suspects of crime based on skin color, the system fails not just people of color, but all of us.

Civil Rights Teaching Fellow/Staff Attorney, Georgetown University Law Center's Institute for Public Representation. LL.M. candidate, Georgetown University Law Center, 2003. J.D. American University Washington College of Law, 2001.

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