In Print: Volume 87: Number 6
By Richard Delgado
87 Wash. U. L. Rev. 1293 (2010)
“Lean your head back for a moment, Professor,” my barber had just requested. I did so, anticipating the rush of soothing warm water that would mark the beginning of my monthly shampoo and haircut when a familiar voice caused me to jerk erect.
“Rodrigo!” I exclaimed at the sight of my lanky, young friend standing next to my chair, a wide grin on his face. “What a sight for sore eyes. What are you doing here?”
“Giannina and I are on our way back from a conference in California. We had a little time on our hands and decided to drop in. Your secretary said I might find you here.”
“I’m having my monthly haircut,” I stammered, immediately realizing that I had merely stated the obvious. Gesturing toward the barber, who had been standing by patiently, bottle of shampoo in hand, I said, “Rodrigo, this is Joe, who’s been cutting my hair for years. Joe, this is Rodrigo. He teaches law the next state over.”
The two nodded politely, and Joe gestured that Rodrigo might take a seat nearby.
“I could use a trim myself,” Rodrigo said, glancing at his image in the mirror. “I thought of getting one in the conference hotel. But when I walked in, the proprietor gave me a hard look, so I left. I don’t think they wanted my business.”
“We sure would here,” Joe said with alacrity. “My son, Keshawn, can handle you. He just went next door for a minute.”
“Perfect,” Rodrigo replied. “I can get my hair cut and catch up with Gus at the same time. I have a thesis I’d love to run past you. You, too, Joe, if you’re interested.”
Joe, who had been gently lathering my hair with his strong fingers, nodded, then added, “Keshawn’s going to the community college. Studying pre-law. I’m sure he’d love to listen in, too.”
The bell on the door jangled. “There he is now,” Joe said, gesturing toward a serious-looking black youth who had just come in. “Keshawn, this here’s Rodrigo. He’s a friend of the professor’s. Wants a haircut, too.”
Rodrigo nodded vigorously, Keshawn picked up a white pinstriped robe from a nearby shelf, and Joe began rinsing me off in preparation for transfer to his regular chair by the window. As he accompanied me to the new location, I noticed that we had the shop to ourselves.
Keshawn took Rodrigo to the now-vacant shampooing chair, while Joe and I made small talk about how his shop was doing in the current economic downturn.
Then, with my young friend settled in the chair next to mine, I said, “Rodrigo, this must be a first. Ever since you and I met years ago, we’ve gotten together at restaurants, AALS, that law-and-economics conference in the Far North, and once at an airport while waiting for a connection. Now here we are at Joe’s barber shop, where I’m looking forward to hearing about your California trip and new thesis.”
“I went there for a conference on the state’s prison crisis,” Rodrigo began, stretching his neck out while Keshawn tucked a gauzy paper towel under his chin. “Giannina came along to get together with an old friend. The idea I want to run past you came to me afterward.”
“I’ve been reading about the state’s budgetary problems,” I said. “All those prisons can’t be helping.”
“They’ve been building them at a great clip,” Rodrigo replied. “And although they initially boosted the economies of the surrounding towns, they’re now straining the treasury to the breaking point. According to one of the panelists, Californians pay nearly as much for prisons—over $10 billion dollars a year—as they do for higher education.”
“That’s shocking,” I replied. “Society needs all the educated people it can get. What was your talk about?”
“Something I’ve been writing about, namely, restorative justice. Have you heard about it?”
I had, in fact, been reading about that new approach to criminal sentencing, but our two barbers looked blank, so I explained, “It’s an alternative to imprisonment that’s been catching on. The idea is to repair the breach of community that occurs when an offender . . .”
“Who is usually young and black,” Rodrigo interjected, slipping a slim black-and-white volume out from under his robe and holding it as if to remind himself to say something about it later.
“Indeed,” I continued. “The youth may have broken into the house of a middle-class person or deprived him or her of a purse or wallet on the sidewalk. Restorative justice brings the offender and the victim together in front of a trained mediator in the hope that both sides will come to recognize their common humanity. The idea is popular in certain liberal circles.”
“The theory is appealing,” Rodrigo added. “The middle-class white learns that the black youth is a person, too. He just grew up on the wrong side of the tracks and started running with the wrong crowd. And for his part, the young man learns that the elderly lady he robbed is just like his grandmother, with feelings and hopes. When he knocked her to the ground, bruising her hip, she suffered nightmares and was afraid to go out for weeks afterward.
“At the end of the session, if all goes well, the two have a cathartic experience. They hug each other. The youth performs some kind of community service, such as raking leaves for the victim or repairing the equipment in a neighborhood playground. If he completes the work, that serves in lieu of a jail sentence. The lady gets her leaves raked. The kid reflects on his behavior and resolves to lead a better life. Everybody is better off.” Rodrigo looked up quizzically.
“I gather you think it isn’t that simple.”
“It isn’t,” Rodrigo replied. “Recidivism runs higher than you might think because, after a while, some of the youth fail to show up for their community service and end up returning to court. They can easily end up serving more time than if they had pleaded guilty or gone to trial in the first place. Some who weren’t even at fault go along out of fear that if they go to trial, they’ll be convicted and serve long terms. As with the practice of plea bargaining, this just breeds cynicism in minority youth.”
“The more things change, the more they stay the same,” Joe observed in a deep, stentorian voice, snipping away at my locks, which were becoming neater and trimmer by the minute.
“And so, Rodrigo, I gather your thesis has to do with restorative justice as a response to the imprisonment crisis.”
“It started out that way. In fact, that’s what the Californians invited me to talk about. But then I saw a parallel to a second movement—community policing. When I reflected on the two together, a broader thesis emerged that I think will intrigue you.”
“We’ve been studying community policing in my criminology class,” Keshawn said, suspending his comb and scissors in midair above Rodrigo’s head. “It seems to proceed on a similar premise to restorative justice.”
“Hmm,” I thought. This young man wields words with the same precision as he does that pair of scissors. I hoped he would end up at my law school and resolved to talk to him about it sometime.
Rodrigo, too, did a quick double take. “Indeed it does. Like restorative justice, community policing aims to enlist the community in the crime-control function. The idea is for the cops to meet with representatives of the community and learn its wants and needs. In turn, the police expect the community—usually a minority neighborhood—to tell them what they need to know.”
“For example,” I continued, “that Raymond is basically a good kid who is a little wild right now, but will turn out okay in the end. The small group that hangs out on a certain street corner, however, is nothing but trouble. The empty building down the block is turning into a crack house. The garbage company is starting to miss pick-ups, and so on.”
“Right,” Rodrigo said. “The idea is to encourage the community to police itself. You see this on an individual level with restorative justice, but even more with community policing. It’s just like . . .”
“Just like what Foucault said,” Keshawn said, quick as a flash. “We’ve been reading him, too. Both of those measures aim to induce the minority community to internalize the values of the dominant group—to begin disciplining itself, in effect. Antonio Gramsci wrote about how oppressed people can easily take on the attitudes and mindset of the oppressors, becoming complicit in their own oppression. You see that at work, as well.”
Rodrigo looked up appreciatively, prompting the young barber to caution him good-naturedly to hold still—“Or you’ll wind up with a bald patch on your head, Professor.”
“Oops,” Rodrigo said, promising to keep still. “But that’s where my thesis comes in. It turns out that these two movements are just the tip of the iceberg. A host of contemporary writers have been struggling to analyze the colonial condition. Most of those writers are from Asia and Africa . . .”
“And a few from this continent, as I recall.” I could see a glimmer of where Rodrigo was going and wanted to hear more.
“Right. These writers examine the role of resistance, collaboration, language rights, and the psychology of the oppressed in order to understand how a colonial power maintains control. Some of them write about how the colonizers use ideology, literature, and even religion to persuade the natives that they should be grateful to the invaders for bringing them science, knowledge, and enlightened administration.”
“Some of the writers discuss the role of educated natives, who accept midlevel jobs in the colonial administration in return for an implicit agreement to help the overlords keep an eye on their countrymen,” Keshawn added. “One U.S. writer has discussed that.”
Rodrigo nodded and jotted something down on a piece of paper. After a short pause, during which Joe got out his electric shaver to trim my sideburns and back of my neck, I said, “And so, Rodrigo, you think that postcolonial theory helps explain the ferment in California, with all those initiatives and excess incarceration?”
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