In December 2015, just before Christmas, a video was posted online featuring a Black woman on the New York City subway arguing with a man and a woman on the train, then lunging at them with an object in her hand. Days later, Merci Chrisette turned herself in.
There was no record of what sparked the apparent outburst, although at least one news outlet reported Chrisette’s account that she was provoked and triggered by homophobic slurs. (The alleged victims and some witnesses have denied this.) For the tabloids, it was all a juicy story—and one they were quick to frame about Chrisette’s transgender identity.
The New York public and media have since moved on, but Chrisette’s legal case remains very much alive. Nobody was seriously harmed or even required medical care as a result of the incident—the only injuries sustained by the alleged victims were scratches. Still, Chrisette is set to go to trial later this fall for a host of charges related to the incident, including assault in the second degree, menacing in the second degree, and criminal possession of a weapon. Because she has a conviction for a previous felony assault, if found guilty, Chrisette, now 29, could face as many as seven years behind bars.
Her case highlights the effect of prosecutorial discretion on criminal justice reform, as well as the systemic and institutional discrimination that results in so many trans women of color ending up behind bars.
Since 2002, people with serious mental illnesses, even those who have committed “violent felonies” like those Chrisette was charged with, have been potential candidates for Brooklyn’s Mental Health Court. In pleading into the court, defendants agree to comply with a mandated treatment program, but if they do, they can avoid prison time altogether. Chrisette, who has previously been diagnosed with chronic post-traumatic stress disorder and agoraphobia with panic disorder, according to documents reviewed by Rewire, is more than willing to enroll in the program. Under the leadership of Ken Thompson, who died in 2016, the Brooklyn District Attorney’s Office gained a national reputation for criminal justice reform. Thus far, however, Chrisette has not yet been allowed to plead into the court—a reality she and her supporters worry may be influenced by how she’s perceived as a trans woman of color.
As a potential trial approaches, Chrisette is grappling with the possibility of returning to prison, and the culture of violence against trans women she endured the last time she was locked up. “It’s scary, it makes me really nervous, really scared, really anxious,” Chrisette told Rewire. “I feel like it puts me at major risk. Will I come out?”
Chrisette’s lawyer declined to comment on specific aspects of what happened on the subway due to the ongoing criminal case, and Rewire was unable to interview Chrisette about the details for similar reasons or to corroborate her claims. But advocate and expert opinions in the LGBTQ community note that Chrisette’s trans identity is crucial to understanding this case: the way it’s been covered by media outlets, and its broader relevance in the struggle for trans rights.
#Fight4Merci is a campaign that started about a year ago to support Chrisette and raise publicity about the case. “There’s always been this assumption—from the media, from the courtroom—that [Chrisette] is lying and that she’s this grave potential risk to society,” said a #Fight4Merci representative who asked not to be named, as the group acts collectively. “And the fact is that she’s been out for a year now and a half now and nothing has happened.”
Supporters maintain that Chrisette, who is now working as a model, was triggered by the transphobic remarks she heard on the subway. They also said that the object she used to attack her alleged victims was not a knife or other deadly weapon, but a hair separator.
When asked, the #Fight4Merci representative pushed back against the question of whether Chrisette was actually provoked. “People see the video, or Merci’s actions, and don’t understand the reality that she lives in” —so instead, the representative said, she’s instantly categorized as the aggressor. “And the fact is that Merci is responding in a climate where Black trans women are being killed on the regular.”
In a report published earlier this year, the New York City-based Anti-Violence Project (AVP) found that 2016 was the deadliest year on record in the United States for the LGBTQ community. Not counting deaths related to the Pulse massacre in Orlando, Florida, 28 people died in hate-related homicides last year, 17 of whom were transgender women of color. And trans-related homicides in 2017 are already outpacing last year’s statistics. On August 2, Tee Tee Dangerfield was found dead in her car with multiple gunshot wounds. She was at least the 16th transgender person killed this year.
Shelby Chestnut is the former director of community organizing at AVP. Chestnut, who uses they/them pronouns, provided context to why Chrisette might have found transphobic remarks particularly triggering or terrifying. “You see around the country trends of LGBTQ people experiencing hate violence, typically in street-based settings, and it quickly goes to physical violence,” they said.
As the debate around the anti-trans “bathroom bills” in state legislatures around the country demonstrates, trans women are often perceived or presumed to be perpetrators of violence, even though they are far more likely to be its victims. Chrisette told Rewire that she has faced physical altercations on the street, often in episodes that begin with transphobic harassment. She once had to get stitches after someone threw a bottle at her head, and she added that being on the subway puts her particularly on edge.
Like many trans people, Chrisette also experienced trauma at an early age. She came out to her parents at the age of 13, and decided to leave home when they didn’t take the news well. About a year later, Chrisette moved in with her boyfriend, who was several years older than her, she told Rewire. Soon he started telling Chrisette that they needed money and that she should start doing sex work.
“I didn’t feel good within myself” after the first trick, she recalled. “But I felt like I was doing it for us, for me and him, so that’s what kept me going.” When Chrisette started telling her boyfriend that she didn’t want to do sex work any more, he became physically abusive. She eventually escaped the relationship.
After Chrisette’s arrest, two community activists fundraised $3,600 in 24 hours to bail her out of jail at Rikers Island—a reflection, according to supporters, of a broad-based acknowledgement within some queer circles that trans women of color are regularly targeted by the police and court system.
The stereotyping of certain individuals as being more dangerous than others has tangible effects on their interactions with the criminal justice system. For instance, CeCe McDonald, a Black trans woman, served 19 months starting in June 2012 on a second-degree manslaughter charge after she defended herself against a man who shouted racist and transphobic slurs and a woman who physically attacked her with a glass bottle. Meanwhile, cops who say they felt threatened enough to kill civilians are routinely acquitted on murder and manslaughter charges—if they are charged at all—even when there is no proof their fear was well-founded.
It’s prosecutors who decide who will get charged for what crimes, and it’s also prosecutorial discretion that determines who can benefit from Mental Health Court. To be diverted into the court, the Brooklyn District Attorney’s Office must first give permission for the defendant to be evaluated by the court’s psychiatrist and social worker. Once an individual has been evaluated and found to be an appropriate match, all three key parties—the defendant, the prosecutor, and the judge—must agree to the case being transferred.
And while she has been previously diagnosed with post-traumatic stress disorder and agoraphobia by a psychiatrist, thus far the District Attorney’s Office has not yet allowed Chrisette to plea into the Mental Health Court. The District Attorney’s Office did not comment because Chrisette’s case is still pending. As a consequence, Rewire was not able to inquire about all the possible reasons Chrisette’s case could still be in criminal court, such as whether the prosecutor has been provided with all the necessary documentation to screen Chrisette for diversion programs.
However, Rewire was able to learn that the best plea deal Chrisette has been offered by the DA’s office so far is a sentence of five years in prison and five years on probation.
Scott Hechinger and Joyce Kendrick are both attorneys at Brooklyn Defender Services, a public defense firm that represents nearly 40,000 people each year who are unable to afford an attorney. “When it comes to violent charges, prosecutors have this reflexive disinclination to consider diversion” like the Mental Health Court “over incarceration,” said Senior Staff Attorney Hechinger. He also pointed out that what we consider a “violent” crime can be so elastic as to be almost meaningless. For example, a robbery is considered violent if more than one person was involved in the crime, even if the victim suffered absolutely no physical harm—like when a group of teenagers steals a cell phone from another kid.
Prosecutors are rarely credited with successfully diverting specific individuals from prison—but can be quickly subject to attack if an individual they pleaded into mental health court or other programs ends up committing a high-profile offense, said Hechinger. If a case has received substantial media attention, that can also disincline prosecutors to sign off on diversion.
“When someone [with mental health issues] comes before a prosecutor with a violent crime, those are the cases where instead of the presumption being against the person, the presumption should be in favor of them [entering diversion], because they are the folks that could benefit the most … and the consequences for putting them into jail instead of diversion are far greater,” said Hechinger.
This is especially true for trans women, for whom being locked up in a male facility—and denied access to gender-affirming health care—can itself be a source of trauma and significant danger. As I wrote about in 2014 for Solitary Watch, transgender women locked up in New York state are routinely physically and sexually assaulted by prisoners and guards, and are also frequently subject to long stints in solitary confinement.
And for transgender women, the cycle that lands them on the inside is particularly pernicious. While 5 percent of all U.S. adults reported spending time in prison or jail, a shocking 21 percent of transgender women said they’d spent time on the inside, according to a report published by the Center for American Progress and the Movement Advancement Project in 2016. The report attributes this significant over-representation to a broad range of issues, including discrimination by the police and the courts, high rates of homelessness and unemployment, the criminalization of sex work and drug use, and a host of other factors.
The #Fight4Merci spokesperson argued that in Chrisette’s case, her record is being used against her “in a way that is pathologizing and takes away her own humanity, and the reality that she lives in.”
“Community members are aware of this type of tactic used to incarcerate Black trans women,” they added.
Chrisette was last in court on August 14, and her next court date is scheduled for September 25. “We are hopeful that the Brooklyn District Attorney’s Office will agree to move this case to the borough’s Mental Health Court where our client can better access critical mental health programs and services,” said Lauren Katzman, who represents Chrisette as a staff attorney at the Legal Aid Society. If her client ends up going to trial, Katzman told Rewire, it will likely take place in October or November.
When it comes down to it, supporters say, Chrisette’s case is about our differing perceptions of danger and harm—where it occurs, who is being targeted, and whether it’s seen as relevant to the cops and the courts. “The conversation on violence—[the District Attorney’s Office] is talking about the subway. The violence we’re talking about is everywhere else,” including on the street and on the inside, said the #Fight4Merci representative.
“When she’s sentenced, it will be one sentence in a newspaper,” they continued. “But that sentence will end Merci’s career, and the trauma she will walk out of there with—that will change her life.”