Heal from the roots – restorative justice for Sasha and Richard

In early November, an act of transphobic violence in Oakland set off a chain of public outcry, solidarity, and criminal prosecution. The victim, an 18-year-old high school student, was discharged from the hospital at the end of November, while their attacker has been charged with multiple felony counts and faces a long prison term if convicted. Now that the dust has settled, it’s time to think about the role not just of gender, but of race and the prison-industrial complex, as well as alternative responses to community violence.

On November 4th, Sasha Fleischman was sleeping on the AC Transit bus when Richard Thomas, a 16-year-old Oakland High School student, allegedly set their skirt on fire. Sasha, who identifies outside the gender binary and uses plural pronouns (they, them, their), spent most of November in the hospital, undergoing extensive skin grafts, and has a long recovery period ahead; an online fundraising page has already raised over $31,000 to help cover the costs.

For better and for worse, Sasha’s story has attracted some attention outside the Bay Area–even internationally. For better, because it’s important that people realize shit like this happens even in “progressive” enclaves like Oakland, and because people across the world (more than 700 of them so far) have shown support for Sasha on their fundraising page in the form of donations and kind comments. Sasha’s story has brought attention–some of it positive–to the experiences and struggles of folks who live outside the gender binary.

For worse, media coverage has been predictably abysmal. Most outlets have used the wrong pronouns for Sasha, repeated their legal name while casting their chosen name or pronoun in quotation marks, or referred to them as a “skirt-wearing teen,” as if their attire were the problem. Some reporters have just been lazy and obstinate, identifying Sasha as a gender, quoting their friends as saying Sasha uses plural pronouns–and then continuing to use male pronouns in the very next sentence. NBC Bay Area even went as far as to describe the pronoun they as “a purposely confusing word to show others what it feels like to be confused by gender,” casting all folks who use plural pronouns as conspiring to confound the cisgender public.

Even more frustratingly, the coverage doesn’t seem to be reaching those who need to know most: other high school students. I work as a sexual health counselor at a school not far from Sasha’s. I’m queer and out at work, and I often get to talk with queer, trans, and gender-variant students about their experiences, their challenges, and their relationships in this heteronormative, gender-enforcing world. Some students at the school know Sasha, or know Sasha’s friends, and I worry about how stories like Sasha’s affect their sense of safety in the community, on campus, and even at home.

But most students seem not to have heard about Sasha. When some of my queer coworkers and I teamed up with the school’s Gay-Straight Alliance (GSA) last week to commemorate the national Transgender Day of Remembrance (TDoR), an annual memorial for trans and gender-variant folks who have been lost over the past year (many of them murdered), few students stopped at our table, where Sasha’s picture was displayed prominently along with the names and photos of others who have been attacked or killed. Most staff and faculty passed by in silence, too.

Fortunately, those who did stop by long enough to see Sasha’s portrait and hear their story expressed sorrow and regret at what happened to Sasha. Some of them even signed the GSA’s trans ally pledge or wrote Sasha a “Get Well” card. For this lunch period at least, the mood was one of support, solidarity, and healing for Sasha. Joining them in solidarity were Sasha’s classmates, teachers, parents, and friends, who had worn skirts to school and marched through East Oakland a week previously.

Outside the schools, however, the response has been different: an all-too-familiar combination of vilifcation and state power. The suspect, who is black, has been charged with two felonies, aggravated mayhem and assault, each with multiple hate crime enhancements, because Richard allegedly admitted he is “homophobic.” The District Attorney, Nancy O’Malley, has decided to charge him as an adult, despite a public plea from Sasha and their family to try Richard as a juvenile in family court. If convicted of both, he could face 25 years to life in prison. This is the dark elephant in the room of Sasha’s story: a “progressive” community’s willingness to throw away another black sixteen year old’s life.

The media coverage on the Left has been complicit in this project, despite its good intentions. Documentarian Jason Cohen, for example, writing for the Huffington Post’s Gay Voices column, compares the attack on Sasha to that of a gay teenager, Matthew Boger, who was beaten by neo-Nazis in Hollywood in 1980 (How Hate Happens). Cohen tells us how one of Boger’s attackers, Tim Zaal, who was 17 at the time, later realized the harm he’d caused and went on to join Boger in giving presentations on tolerance, “embark[ing] on a difficult journey of reconciliation and forgiveness.” For Cohen, Zaal’s story shows how hate is learned, and can be unlearned, and encourages us to think about the “deep-rooted factors” that could have led Richard to set Sasha on fire, such as, Cohen speculates, the lack of LGBT adults in Richard’s life. And yet Cohen mentions the numerous charges against Richard without for even a moment questioning his presumably lengthy incarceration.

The coverage on the Left, then, seems to recite the DA’s proclamations about the horrific nature of the crime–and it was horrific indeed–but predictably fails to question the prison-industrial complex’s (PIC) role as protector and its monopoly on the allocation of “justice.” It fails to critique, in other words, how the effort to drum up public awareness and outrage about the attack coincides with the state violence of locking up another black teenager, at a time, according to the National Council on Crime and Delinquency, when black youth are six times more likely to be incarcerated than white youth charged with the same crimes (And Justice for Some). At a time when, as litigator Michelle Alexander writes, more African-Americans are incarcerated than were enslaved before the Civil War (The New Jim Crow: Mass Incarceration in the Age of Colorblindness). Yes, queer, trans, and gender-variant folks ought to be cautiously optimistic that the police and the community are taking gender-based violence seriously, rather than ignoring it, trivializing it, or blaming the victim. But this shouldn’t make us think that the cops are on our side (or that if they were, our work would be done) or prevent us from thinking critically about systemic racism. Such a complacent narrative will never explain, much less hold anyone accountable for, the death of Kayla Moore, a black transwoman who died while in Berkeley Police custody last February.

This narrative also shouldn’t prevent us from proposing radical alternatives to hate crimes laws and mass incarceration. Faced with this terrible act of violence, we ought to think restoratively. This means that we question the standard American criminal justice process, which Oakland-based restorative justice activist Fania Davis describes in Tikkun magazine as “retributive”:

“The only way to pay back the debt and re-balance the scales is to be given your just deserts…Pain, suffering, isolation, deprivation, even death are often viewed as the only way to make right the wrong, the only way to pay back the debt and the only way to re-balance the scales…Instead of the person harmed who retaliates, it is our justice system that strikes back on the victim’s behalf (What’s Love Got to Do with It?).

The retributive way of administering “justice” is so deeply engrained in American culture that even those like Jason Cohen, who want “reconciliation and forgiveness” for Richard and Sasha, cannot question it. Falling into the same trap, the editorial board of the SF Examiner declares that “we all need to focus on healing and learning,” while maintaining that “there is no doubt that there needs to be punishment for the sixteen year-old [Richard]” (Sasha Fleicshman Sets Example). Like Cohen, another way does not occur to them. But another way is possible: restorative justice holds that locking people in cages only increases the original wrong. Rather than focus on allocating individual blame and punishment, restorative justice seeks to repair harms for the victim, offender, and community alike, reconciling conflict instead of deepening it. It allows us to see how transphobic violence in the community and state violence behind bars share a common nexus. Restorative justice asks:

1) Who was harmed?
3) What are the needs and responsibilities of all affected?
5) How do all affected parties together address needs and repair harms?
With these guiding questions, restorative justice programs attempt to bring together victims, offenders, and volunteers from the affected community to find fair, non-Statist, mutually acceptable ways of repairing the harm. This can take many forms: victim-offender mediation, family group conferences, or peacemaking circles (What’s Love Got to Do with It?). In West Oakland middle schools, restorative justice programs have been hugely successful: in 2007, an initiative started by Restorative Justice for Oakland Youth eliminated expulsions and fights, and reduced suspension rates by 75%, enormous achievements that retributive justice could never have reached. The model has proven effective outside the schools as well, from juvenile sexual assault cases to robberies.

The tragic irony here is that the same queer/trans folks who are tacitly, if not enthusiastically, supporting the use of hate crimes laws in the name of justice for Sasha, have they themselves so often been the target of this same legislation, often for just trying to defend against repression. The fact that hate crimes laws disproptionately affect queers, trans/gender-variant folks, low-income folks, people of color, and especially those who inhabit many of these identities, has been so well documented that even liberal left groups like the ACLU now oppose hate crime sentencing enhancements.* And yet, instead of seeing common cause with Richard, those who reflexively seek retributive justice for Richard threaten to pit queers against people of color, letting the state play the role of mediator. Fortunately, the community has resisted this cynical move, and students of color at Richard’s school and beyond have written letters of condolence and support to Sasha.

By all means, yes, let’s call Sasha’s attack the tragic act of violence that it was, and hold Richard accountable. We can be angry and scared and sad about what happened–these are all valid feelings, and I’ve been feeling them, too. But let’s hold ourselves accountable as well, and in doing so, attempt to hold the state accountable too. Let’s not confront one axis of oppression only to join with the state in reinforcing another one. Transphobic violence and ubiquitous, racist incarceration are both problems, and a 25-year sentence for Richard does nothing to solve the former while exacerbating the latter. A restorative approach challenges the state’s monopoly on “justice,” while offering an opportunity for mutual understanding and healing for Sasha and Richard.

* Abolitionist group Black and Pink has compiled radical queer critiques of hate crimes laws into a succinct document that you can view on their website: blackandpink.org