Is Incarceration The Only Way To Repair Harm For Hate Crimes Against Black Queer People?

The haunting news of a Black gay man's murder in Brooklyn sent shockwaves across the nation. Simultaneously, the digital realms of Black Twitter and TikTok erupted with fury over Carlee Russel, a Black woman who faked her kidnapping. The web was ablaze with comparisons to Jussie Smollett, even dubbing her "Carlee Smollett." Fast forward a few weeks, and we saw hip-hop sensation Tory Lanez handed a decade-long sentence for shooting Grammy award-winning artist Megan Thee Stallion. What stunned me amidst these stories was my own immediate reaction. Like many, my instinct was to call for arrests. But back in 2020, I yelled, "Defund the Police" through our streets. Three years after the 2020 racial revelations, I faced my disconnect.  

I champion accountability. But I'm unconvinced that incarceration is our sole recourse in criminal justice, especially regarding hate crimes against Black gay men. Most know the ins and outs of the penal system because they have had to.  I had no choice but to learn of incarceration because my grandfather was imprisoned and released early. It wasn’t until later that I learned about reconciliation and restoration.  Few lean into community healing and restorative measures. I urge everyone, especially within the Black queer community, to ponder: What might healing and restoration, rather than retaliation, indeed resemble? Is it possible for these principles to complement each other? To coexist for mutual benefit and social good as opposed to tools of oppression and social strife. 

To numerous Black queer Americans, justice is synonymous with revenge, often meted through prison bars. We may yearn for others to feel how we feel. To understand some form of social power. Yet, I'm left wondering, can't there be a better path to healing? Especially considering the rise of for-profit prisons. In cases of hate crimes, does a jail cell genuinely mend the wounds at the heart of our communities? “We want justice” is often a euphemism for “We want them in jail!” Many of us can't picture a world beyond prisons. It is like asking an artist to paint the sun without using yellow, red, or orange. Our modern-day portrait of justice is synonymous with incarceration. 

Historically, The Black Community’s Forced Narrative Has Been Survival Over Healing

Healing is optional, but survival is mandatory. It is what our families and communities know and have known for decades, like getting a whooping for lying or your mama ordering a well-done steak.  Racial trauma, homophobia, and familial narratives of incarceration are frequently passed down, often leaving heavy burdens for future generations to reconcile. Trauma and experiences shape how we see the world, what we view as possible, what we view as righteous and ideal, and how we view harm and healing. Imagine wearing glasses with one big crack; they may still work. Six months later, that one big crack morphs into seven small shatters. Your view of the world would inevitably differ. You would not see things the same way. You would likely want to change the lens. Or imagine if you needed to travel from New York to California, but you only knew about car travel; the idea of a plane would be implausible. Flying on an airplane would likely be impossible for one to wrap their head around.

Is it easy to envision alternatives to prison? Absolutely not, but being Black and gay in America is not easy. If anything, our community has a deep history of finding our solutions and being at the forefront of social change.  

“Racial trauma, homophobia, and familial narratives of incarceration are frequently passed down, often leaving heavy burdens for future generations to reconcile.”

The Tragic Murder of O’Shae Sibley

In early-August, a 17-year-old was charged with the murder of O’Shae Sibley, a professional dancer and choreographer, after a dispute about dancing (voguing)  at a Brooklyn gas station. The incident began when Sibley, Black and gay, and friends danced to Beyoncé’s “Renaissance.” They were confronted by men who shouted homophobic and anti-Black slurs at them. The confrontation, caught on video, escalated until the teenager stabbed Sibley. 

A gas station attendant mentioned one of the confronters, saying, “I’m Muslim. I don’t want this here,” although it was later clarified that the suspect is Christian. Public tributes to O Shae included a message on Beyoncé’s website and memorials. Sibley's death sparked multiple vigils, with attendees hosting a Memorial Ball where he was murdered. The suspect turned himself in with his lawyer's assistance and faces charges of second-degree murder as a hate crime and weapon possession.

Let’s Be Bold and Brave: Embrace Principles of Restorative Justice

Despite significant progress on LGBTQ+ rights in recent years, it remains deeply concerning that several U.S. states do not specifically list sexual orientation as a protected category under their hate crime legislation. According to a 2020 report by the Movement Advancement Project, depending on interpretation,  11-13 states either have no hate crime laws at all or have laws that omit protections based on sexual orientation.

Admittedly, I am not a lawyer, social worker, or policymaker. I am a Black gay man with a background in mediation who believes there is a better way to repair hate and harm. Or, at the very least, dare to dream of something different.

That different way is embracing aspects of restorative justice. When someone commits a hate crime, it is not just a legal breach; it's a tear in the social fabric. In fact, the DOJ itself explicitly states we need hate crime laws because “Hate crimes have a broader effect than most other kinds of crime. Hate crime victims include the crime’s immediate target and others like them. Hate crimes affect families, communities, and, at times, the entire nation.” 

If this is the rationale for hate crimes, does our current approach to punishment solve communal trauma? Black queer people rallied and resisted, but did that yield more safety and resources?  This one person could be incarcerated, but hate operates like an infectious disease, spreading from one person to another. 

If O’ Shae’s murderer is jailed, that does not magically bring healing back to Black queer men, and it certainly does not rid Brooklyn of hate, homophobia and racism. Butch queens may still fear voguing in public. I agree that some recovery may be accomplished through vengeance, but like fruit from a forbidden tree, the roots of this form of justice are rotten and can be easily weaponized against Black queer people.

“When someone commits a hate crime, it is not just a legal breach; it’s a tear in the social fabric.”

View fullsize

Milwaukee, Wisconsin / USA - June 7th, 2020: LGBT and non-LGBT Wisconsinites came out to the Black Lives Matter and LGBT march in support the end the death of LGBT and Black lives from police brutality (Photographer: Aaron of L.A. Photography)

What is restorative justice?

According to The United Nations, restorative justice is a transformative approach to crime that puts the human experience at its core. Imagine a system where everyone impacted by a crime—victims, perpetrators, families, and the broader community—comes together to address the harm and find a path forward. This isn't about replacing our existing criminal justice system but enriching it, offering victims a voice and often their only shot at proper redress, healing, and reconciliation. It is also about shifting the energy and resources from assailant to victim. 

Restorative justice is often rooted in multiple principles, such as personal responsibility, repair, and reintegration.

1. Responsibility is not about just placing blame but understanding harm. There is a difference. Blame pinpoints the perpetrator, seeking accountability for wrongful acts, while harm illuminates the deep, resonating pain and trauma inflicted on victims and their communities. For restorative justice to work, individuals must acknowledge their role in the harm- intentional or not. 

2. After ensuring respect and responsibility, the journey pivots to repair. Offenders must tackle the harm they've caused, striving for progress over perfection. This phase isn't about revenge; it's about growth and redemption.

3. In a perfect world, the community champions the offender's return to complete the healing arc, underscoring collaboration rather than ostracization. This process not only values their lessons but also recognizes their potential contribution to long-term community engagement and social good.  In embracing responsibility and actively repairing harm, they earn renewed trust and a harmonious reentry into the community. The victim’s input, requests, and harm remain centered throughout the process. 

The path forward: Focus on Restoration, Accountability, and action, Not revenge, profit, and punishment

In middle school, you're busted cheating on a significant exam. Instead of being suspended or branded as a delinquent, a meeting is set up. Present are you, your disappointed teacher, the school counselor, and friends who feel let down. You explain why you cheated, and the pressures to be perfect are discussed. Instead of suspension, you write an essay on honesty, accept a reduced grade, and tackle exam anxiety with the counselor, sharing learned strategies with peers.

Assume I am a victim of a violent robbery. Following the traumatic event, I am approached by a prosecutor who offers me a choice in how to seek justice. She makes it clear that it is my choice. She explains that restorative justice is one option, where the offender has already admitted guilt and wants to make amends. Curious, I met a facilitator who outlined the process. I have separate initial discussions, then a joint session with the offender and some community supporters. In this meeting, I convey the profound impact of the robbery on my life, while the offender will acknowledge their actions, share their motivations, and answer my questions. The goal? To jointly create an agreement on reparations. This might mean the offender compensates me for my losses, undergoes counseling, serves the community, or takes other actions I deem necessary for my healing.

 These are individual crimes, so let’s zoom out and focus on the community. An officer kills an unarmed Black man, an issue far too common. The Black community has been unhappy with how the criminal justice system holds officers accountable (or lack thereof). So, let’s envision the community and police department embracing restorative justice. 

First, the officer and the department must offer condolences, publicly admit their fault, and apologize sincerely to the aggrieved family and community. Admission, however, is just the start. Under the guidance of an expert mediator, the family voices their pain while the community recounts tales of enduring racial bias. Active in this dialogue, the officer addresses their actions, acknowledges biases, and truly grasps the inflicted pain. Beyond compensation, it includes scholarships in the victim's memory, initiatives targeting racial discrimination, and support structures for healing. As for the officer, personal remorse must coincide with legal consequences, so they are fired with no opportunity for a pension and cannot work in public service or security. They also lose their license to carry and may be subjected to other long-term consequences as designated by a community justice board, not a judge or jury.

“The Black community has been unhappy with how the criminal justice system holds officers accountable. So, let’s envision the community and police department embracing restorative justice. ”

What else could this look like?

The examples above do not illustrate the nuance and complexities, nor is it a detailed outline of the restorative justice process. Instead, it is an invitation for everyone to imagine another way. Something different. The Black queer certainly understands the importance of restoration and healing. We also understand the magnitude of racial violence and homophobia. So, what could a restorative framework look like for vile acts like hate crimes? 

The Little Book Of Restorative Justice outlines the power of restorative justice circles, similar to the hypothetical scenarios outlined above. The Punishment Imperative argues for intensive therapy, counseling, and significant community service to impacted communities. The use of community boards and oversight have been recommended. So have community justice boards. In her book, The New Jim Crow, Michelle Alexander unveils how restorative justice could be used to show the root causes of crime- inequities such as educational attainment, income, and mental health resources. 

Regardless, if we are to combat hate truly, punishing does not appear to promote positive change. Restorative justice is one of the few frameworks that focuses on victim needs, ensuring that justice is served by punishing the perpetrator and addressing the broader harm caused to individuals and the community. 

 Of course, restorative justice is not always the desired or appropriate solution for every situation, and it depends on resources. If the idea sounds strange, it’s because, for the average American…….it is. Not because it cannot happen but because we have never permitted ourselves to envision another form of justice. For the record, the call for reparations as a remedy for enslavement follows the logic of a restorative framework.

 We do not have many frames of reference for healing-centered justice, especially at the community level, but we have multiple examples of harm.  We have tried revenge over restoration for centuries; all I ask is that we are brave enough to contemplate a different way. It is not about turning the other cheek; it is about ensuring the cheek is never hit and addressing why the punch was thrown, and preventing violence in the future.