The smack caught TC entirely by surprise. It hurt and it was humiliating. Nobody had ever touched her butt before. Furious, she picked up a chair, ready to hurl it at Jeff.
The classroom erupted into commentary and instructions. “Put it down!” a classmate urged.
“If you don’t know anything about it, you need to shut the fuck up!” TC shouted, her eyes filling with tears. But she put the chair down.
The event stayed with her all day. That afternoon she told some of her friends what had happened and began to cry.
“You need to report him,” they urged. So she did.
When Oakland High School administration began to investigate, they found that in the preceding couple of days, Jeff had slapped or grabbed the butts of two other ninth-grade girls as well.
Sexual harassment is grounds for suspension or expulsion. But keeping students from going to school is usually counterproductive, and suspensions have been shown to disproportionately target African American males. For that reason, many Oakland schools have been exploring a different approach to school discipline: restorative justice.
Given a choice between traditional discipline—which would probably have meant Saturday school—and participating in a restorative justice circle with the three girls he’d touched, Jeff chose restorative justice. Still, he went into the process annoyed. He’d just been playing around. Why was everyone making such a big deal about it?
“It was like, I’m gonna go in there with a bunch of females and talk about something that’s a week old?” Jeff said later.
Two of the girls, J. and Pancha, had similar feelings. They’d been mad at the time, but whatever. It was history now. “I wasn’t really traumatized about it,” Pancha said.
Schools are all about rules. There are rules against sexual harassment, and those rules spell out what kinds of conduct is prohibited and what the punishment should be. Restorative justice, on the other hand, is more interested in relationships. A crime, RJ advocates say, is not an act against a rule, it’s an act against a person. When you harm somebody, you owe it to them to make things right. By making things right, you begin to heal your relationship with the community.
“Our system is focused on blame and punishment and not on healing and learning,” says Lauren Abramson, who founded the Community Conferencing Center in Baltimore, Maryland, one of the oldest and most widely respected RJ programs in the nation. “There’s a different way to deliver justice that’s been proven in many cases to be more socially effective and more cost-effective.”
The Oakland High circle started out silly. Nobody except TC and the two adult facilitators could stop joking around. But when the three girls started to talk about their feelings about being touched, things suddenly got serious. Nobody minded playing around, the girls said, but in this case Jeff had crossed the line. In the end, the four students made an agreement to ask permission before touching each other, even in play. And then the whole thing was done. Over.
More than over actually. Now the four were friends.
“We all bonded from this experience,” J. explained as the four of them shared a bag of cashews a few months later. “It helped us get the feelings we had out. And we trust each other. It was a good way to get the event just out of our heads.”
And of course, asking for permission had become a running joke.
“Can I touch your nuts?” Pancha asked, helping herself to the bag of cashews. The others snorted.
Without the circle, they said, the whole thing would have blown over, but the residue would have remained.
“I think it would still have been kinda weird if we didn’t do the restorative justice circle,” TC said. “At least for me.”
“Yeah,” J. said, “because whenever you’d see that person, it would just be like…”
“He’s the one who smacked my ass!” Jeff finished. He and Pancha acted out running into each other in the grocery store sometime in the distant future.
“Hey, I’m Jeff, from high school.”
“You’re the one who smacked my ass!”
“I’m the one who smacked your ass!”
They cracked up. Jeff stuffed a handful of nuts into his mouth.
“Would you please close your mouth when you eat?” Pancha said, making a face.
Jeff shook his head solemnly. “We’re going to need another restorative justice circle.”
Then he grinned. “We ain’t never used to talk like this,” he said. “I feel like I can tell them more now. I can trust these three.”
That was the thing about restorative justice. It allowed you to hold two things in your head at the same time—that butt-slapping was funny, and also that it wasn’t. That asking permission to touch somebody was funny, but that you really didn’t want to be touched by somebody who didn’t ask. That the girls wanted Jeff to dial back the ass-smacking thing, but that they still liked joking around with him. That the whole thing wasn’t a big deal, and that it kind of was.
That was what community was. All those layers of understanding.
RESTORATIVE JUSTICE
Sujatha Baliga had been getting calls from community activists from the moment Richard was arrested. As one of the nation’s foremost experts on restorative justice, she was the one people turned to in situations like this, situations where healing seemed possible. And so Sujatha had called a few people she knew in the Alameda County district attorney’s office to say that she was available to facilitate if the families were interested in initiating a restorative justice process.
“I don’t cold-call crime victims ever,” she says. “I’m not here to peddle restorative justice.”
Restorative justice is sometimes used in Alameda County as an alternative to criminal court for juveniles accused of felonies, a process known as diversion because the accused is diverted away from criminal court. When that happens, a local nonprofit facilitates a process called family group conferencing that includes the offender, the offender’s family, and other important adults like teachers or pastors, as well as the victim and the victim’s supporters and advocates. The structure is similar to the one involving Jeff, TC, Pancha, and J. at Oakland High School—the members of the circle talk about what happened, and then make a plan for how the harm can be repaired. When it’s a criminal case, the plan contains measurable benchmarks. If the kid completes the plan and meets the benchmarks, no criminal charges are ever filed.
A recent study of the Community Conferencing Center, one of the nation’s oldest restorative justice programs, in Baltimore, Maryland, found that those who took part in the process were 60 percent less likely to reoffend than those who went through the traditional legal process.
“RJ isn’t a guarantee of leniency,” Baliga cautioned. “It’s about dispensing with punitiveness for its own sake and trying to produce an outcome that will be more healing for everyone involved.”
Still, Baliga knew that there was little hope of diverting Richard from the criminal justice system entirely. “Given the severity of the harm to Sasha, we didn’t expect that the DA would allow the case to be diverted to restorative justice,” she said.
But if anyone seemed right for restorative justice, it was these two families, who had already expressed compassion for one another. “They were perfect candidates for this dialogue,” she said. “All of them were such gorgeously enlightened, beautiful people.”
NOT WANTING TO
Debbie and Karl didn’t feel much need for restorative justice. The impromptu encounter with Jasmine had felt healing, but Debbie didn’t have any desire for another meeting. “I don’t know what I would get out of meeting with Richard,” she said. “I’m kind of not wanting to do that.”
She was wary, too, about making any recommendation about what should happen to him, other than that he should be treated as a juvenile.
“I’ve never felt like I have enough information to know how to judge or think about this kid,” she said. “I don’t want to be begging for lenience and then have him go
out and hurt someone else. But I also don’t want him sent to adult prison.”
Mostly she just wanted to see the case wrapped up before Sasha left for college. The one thing she didn’t want was for Sasha to have to fly back from Massachusetts in the middle of the term to testify at a trial.
“I don’t want to go to trial,” she said. “I really don’t.”
THE PEOPLE VS. RICHARD ____
Richard’s lawyer, Bill Du Bois, thought the whole restorative justice discussion was a distraction. There was no way, he said, that the district attorney’s office would go for it. “Restorative justice has never been a consideration in this case,” he said. “I love their program, but I’ve already broached the subject. It’s the farthest thing. It’s an absurd suggestion.”
For their part, the district attorney’s office said they had no objection to the families going through the restorative justice process if they wanted, but it wouldn’t affect the amount of time Richard served.
“This was not a case where he was not going to be incarcerated,” Alameda County DA Nancy O’Malley said. “We could not ignore what he did.”
The truth was, the legal system had its own unassailable logic, a logic that couldn’t be shifted.
Guilty vs. innocent.
Prosecutor vs. defense attorney.
Victim vs. offender.
TIRED
Spring stretched into summer.
One court appearance followed another. Each time Richard’s case was called, all that happened was that the judge set another court date. Both sides were hoping for a plea bargain, but as time went on Jasmine’s shining optimism faded. She came to the courthouse looking grim and sat in the hallway with Maria Dominguez and Darris Young from the Ella Baker Center, waiting for Richard’s case to be called. They were the people she trusted to explain to her what was going on.
She was tired of talking about the case. Tired of thinking about it. “I work twelve, sometimes fourteen hours a day and when I come home I just want to go to sleep,” she said. Hunched on a bench in the hallway, she looked like a guttering candle, its flame buffeted by the wind.
The press didn’t come to court anymore. But the Ladies did. They never missed an appearance.
DEPARTMENT 11
PLEASE TURN OFF CELL PHONES AND PAGERS BEFORE ENTERING COURTROOM.
NO FOOD, DRINKS, OR GUM CHEWING ALLOWED IN COURTROOM.
NO EATING OR TALKING OR READING WHILE COURT IS IN SESSION.
NO TALKING OR LOITERING IN THE VESTIBULE.
NO COMMUNICATION WITH INMATES.
Department 11 is a way station, a courtroom you pass through on your way to someplace else. It’s the court where cases are put on the calendar for their first hearings, where plea bargains are accepted and sentences passed down. No trials happen here. It’s a clearinghouse—crowded in the morning, nearly empty by lunch. Here the in-custody defendants sit in the jury box waiting for their cases to be called. Their hands are cuffed and they wear color-coded jailhouse jumpsuits: yellow for maximum security, blue for minimum, and red for administrative segregation, which is the official term for solitary confinement.
The lawyers file in and out of the courtroom, sauntering past the gate that separates the gallery from the court, ducking back into chambers to chat with the judge, making small talk with the bailiff and one another. They lean down to confer with their clients, go on and off the record, consult their calendars.
In the gallery, friends and family members sit and watch, the bewildered audience to a play performed in an unknown dialect of acronyms, Latin, and Old English.
Every once in a while the bailiff barks at someone in the seats who has been talking while court was in session. “If I have to warn you again, you’re out of here and you’re not going to be allowed to come back.” Grown-ups flinch like misbehaving kids, guiltily lapsing into silence.
When you spend some time in the courthouse, you start to recognize the people who didn’t heed that first warning. They’re the ones outside in the hallway, slumped on a bench, faces streaked with impotent tears.
MAYBE
It was August. Sasha was getting ready to leave for college. They were excited and a little nervous. The nerves mostly had to do with leaving the Bay Area bubble. “Here, finding a bunch of queer people to be my friends isn’t very hard,” Sasha explained. “Whereas, at MIT, I’m going to have to work a little harder to seek out my people.”
The fire was becoming a more distant memory, even though Sasha still wore compression stockings. “Apart from some scars, I’m all healed, basically,” Sasha said. It was hard for people to believe it, but Sasha didn’t feel traumatized by what had happened. When the physical pain faded, the emotional pain did as well.
“I don’t really feel hated,” Sasha explained. “Especially since after I was attacked, the whole world was supporting me. I felt like one person hates me—maybe.”
SUITCASE
Sasha packed for college. They brought all the usual things: bedsheets and shower shoes, clothes hangers, an alarm clock. They packed a ukelele, too, and a packet of subway maps.
For clothes, they took button-up shirts, T-shirts, leg warmers, and all the skirts they owned. Two pairs of Converse sneakers. One pair of ballet flats. And, of course, hats. Seven of them, including a knit cap, a flat cap, a Russian ushanka hat, and a Chairman Mao hat with a red star at the forehead.
A few key books came along as well: a vegan cookbook, the novel Trains and Lovers by Alexander McCall Smith, The Left Hand of Darkness by Ursula K. Le Guin, a book about anarchism called Black Flame, and the novel Orlando by Virginia Woolf, about a poet who changes genders from male to female.
Only two souvenirs from the fire traveled with Sasha to MIT. One was the compression garments. The other was the string of paper cranes that had been made by the students at Oakland High School.
A PRAYER
As she got ready for her only child to leave home, Debbie thought about the psychologist who had first diagnosed Sasha with Asperger’s syndrome. The psychologist said he’d seen many children with autism over the years, and none of them had ever married. He had advised Debbie and Karl to lower their expectations for the future. With a little luck and some hard work, he predicted, Sasha might be able to hold down a low-level job doing data processing.
At the time, Sasha was seven years old.
Debbie and Karl had chosen not to work with that particular psychologist. And now, more than a decade later, Debbie couldn’t help gloating a little. Take that, Mr. Doom and Gloom therapist! she wrote on her blog in a pair of posts celebrating Sasha’s high school graduation.
Now Sasha is off to MIT—MIT!!! This dreamer, this creator of imaginary languages and a whole world in which to speak it. This sweet, funny, sometimes annoying, sometimes brilliant, naïve child of mine … This child who is now an adult and about to launch, like a rocket blazing in beauty through the night sky to worlds unknown. May the blaze and blast be glorious, and the universe welcoming. And may Sasha feel all of our love like a glowing halo around them.
BARGAINING
Sasha left for college. It was now September 2014, nearly a year after the fire, and still the case wasn’t settled. When Richard was brought into court, his eyes scanned the courtroom, taking everything in. Other inmates slumped listlessly, staring at the floor or the ceiling, but Richard always had the same quality of alertness. He noted who was there in the gallery—particularly the three older white ladies who always sat together. The bailiff had pointed them out to him, noting that they never missed an appearance. Who were they?
The district attorney’s office had made an offer for a plea bargain. They would drop the mayhem charge and the hate-crime enhancements if Richard agreed to accept a five-year sentence on the assault charge. With credit for time served and good behavior, the deal would mean Richard, now seventeen, would be released just before his twenty-first birthday. That meant that even though he was being charged as an adult, he could still serve his time in juve
nile facilities.
Du Bois thought Richard should take the plea. “Not a single one of us like the deal,” he said. “It’s just the best choice among the available alternatives.”
But communication between Du Bois and Jasmine had almost completely broken down. She didn’t know what to believe or who to trust. Even if he took the deal, what guarantee was there that Richard wouldn’t be sent to adult prison when he turned eighteen? She sat in the hallway outside Department 11 with her head down, her whole body a fist.
“Are we going to resolve this today?” Judge Paul Delucchi asked wearily when Richard’s case was called. “I know we have allegedly been on the cusp of that for months.”
“We still are,” Du Bois said. The judge asked the parties to return to court in a couple of weeks. If they hadn’t come to a plea agreement by then, the case would go to trial December 8.
“I’m a little frustrated,” Debbie fumed as the case dragged on. “I just want it to be done with.”
THE DEAL
Richard sat in Judge Paul Delucchi’s courtroom with his left leg shackled to a wooden chair. He wore a gray county-issue sweatshirt and khakis, and while he had lost the terrified look of his early court appearances, his eyes remained wary.
It was October 16, 2014, eleven months and twelve days since the fire on the bus. That morning Richard had decided to take the deal. He’d do the five years. Now he was just waiting to enter his plea.
As always, he scanned the courtroom, taking in his surroundings. Jasmine sat on the left, wearing new long hair extensions with a greenish tint. Debbie and Karl sat in the row in front of her. Some people from the restorative justice groups were scattered nearby, including Anna Blackshaw and Darris Young. The Ladies were in their usual spot, in a row near the back. A few members of the press sat near the front.
The 57 Bus Page 13