Matthew Clair, a sociologist at Stanford University, has written a timely and salient book that describes in intricate detail how the attorney-client relationship between lawyer and defendant reproduces race- and class-based disparities in a criminal court. The book, “Privilege and Punishment: How Race and Class Matter in Criminal Court,” published by Princeton University Press, examines just over 60 criminal defendants’ cases and how these defendants interacted with the criminal courts in Boston. It is an interesting and important read for lawyers and judges who practice in criminal courts, scholars and students of criminal justice, and anyone interested in disparities that result from traditional and ingrained criminal justice processes and practices.
The “hook” of the book is immediate and quite poignant. Clair describes how during a conference trip to Chicago he and a colleague visited the courts of Cook County, Illinois, one of the most active criminal courts in the nation. Upon popping into one of the courts in the building, Clair observed, in one of the defendants, a face that looked familiar and a man who shared his last name. After some inquiries to his family, he learned that the face and name that he recognized in court that day belonged to a distant cousin. Clair reflected on his family ties to Chicago, and in particular, the set of decisions and circumstances that led his own father to leave Chicago after he received a boarding school scholarship from an institution in New England. His father left behind seven siblings, none of which left the South Side of Chicago. He describes how, after his return from the Chicago conference, he googled the name of his cousin and the first of the results was a mugshot. Clair provides thoughtful consideration of his own life trajectory and how it could have been different for him if not for a few decisions made by his father.
In the introduction to the book, Clair lays out the details of his thesis on criminal courts and disparities. He contends that there is a pervasive set of assumptions about race, wealth, and privilege, that characterizes interactions that occur in many predominate social institutions, but proves untrue when matched against the contextual backdrop of criminal courts. Namely, the taken for granted claim that, in general, higher status individuals obtain resource privilege due to their tendency to make demands and be assertive, while lower status individuals are resource- and privilege-deprived due to their passiveness and deference to others. Clair describes how this is not true of the criminal court setting. In contrast, because lower status defendants have prior direct and vicarious criminal justice experiences and come into the court setting knowledgeable of criminal justice processes and norms, their inclination is to question, be assertive, and demand an accounting of their rights. This puts lower social status defendants (in terms of race and wealth) at odds with the established legal culture. Higher status defendants, in comparison, enter with a distinct orientation, one that leads them to place trust and confidence in their defense attorneys. The difference in the lived experience and vantage points between how lower status and higher status defendants enter the court system significantly impacts the interactional relationship between the defense attorney and the client. The result is that higher status defendants receive better and more advantageous access to the resource of counsel, which impacts court outcomes. To be clear, Clair views differential court outcomes between racial and ethnic groups and between the wealthy and the poor as a direct function of the how lower and higher status defendants experience and navigate the attorney-client relationship.
Chapter 1, titled “Different Paths to the Same Courts,” highlights the varied paths that persons of different races and classes take to get into the criminal court system. Yet Clair is diligent in showing the commonality between nearly all of the defendants — minority or non-minority, privileged or disadvantaged — in that they previously experienced some sort of alienation from key social institutions or social networks. Whether it be a rejection of or rejection by key socializing institutions, such as schools and neighborhoods, or by family or peers, criminalized behaviors (often drug use and dealing) characterized the isolation that these defendants felt in the past. Universally, whether minority or non-minority, economically privileged or disadvantaged, the defendants in the study had prior contacts with the police. While the same in this important respect, there are noted differences between the experiences of minority and non-minority and the poor and the privileged that are just as prevalent and powerful. Privileged persons, in the sample of defendants, were able to rely on their class position and racial backgrounds to avoid many potential police encounters or to negotiate their way out of them. Differential experiences of the privileged and the disadvantaged are the prologue for their variegated experiences with defense counsel. The pathway of the minority and the poor (the disadvantaged) into the criminal courts breeds mistrust of and contempt for the system and its agents (including defense attorneys), while the pathway of White and the economically privileged defendant is informed by an awareness of the advantages that come from negotiation and cooperation.
In Chapter 2, called “Disadvantage and Withdrawal,” the focus of Clair is on the two distinct processes through which disadvantaged defendants withdraw from the attorney-client relationship. It is discussed how poor and minority defendants are resistant to the form of expertise that their attorneys have to offer (the skills and relationships needed to negotiate justice), and instead, seek to pull from and use their own legal knowledge that developed over time in jail, in their communities, and through their own prior observations of criminal court proceedings. A cultivated inter-generational set of experiences, and a general lack of legal system attention to their needs and lived experiences, propels lower status (minority and poor) defendants to oppose the recommendations of their defense attorneys, often in public, in open court. This rejection of the brand of expertise offered up by their legal representative is detrimental to the options of the low status defendant in the resolution of the case. For other disadvantaged defendants, the rejection of the attorney-client relationship is in the form of a resignation to the process. While distinct, this is no less damaging; Clair shows that resigned defendants often cancel meetings with their legal counsel or fail to show on court dates, which is an irritant to the professionals who run and operate the court. Poor and minority defendants who resign themselves from the process often are experiencing life circumstances — drug addition, economic disadvantages, and mental illness — that run in tandem with the court procedures and facilitate or exacerbate the isolation. In stark contrast, privileged defendants who enter the system with fewer prior contacts with the criminal justice system and its agents, and with past experience using their social ties as resources to address run-ins with the law, are better positioned to accept and make use of the expertise and legal relationships that the defense counsel has to offer.
Chapter 3, “Privilege and Delegation,” is used by Clair detail how the differential frameworks of trust that distinct groups of defendants bring to the criminal court experience affects their interactions with their lawyers. Privileged defendants, recognizing their inexperience and their counsel’s experience and expertise, delegate authority to their legal counsel. The privileged defendant shows a willingness to engage with the legal counsel to develop strategy and to set objectives. Importantly, they defer to professional legal assessments of the defense attorney.
Chapter 4 is titled “Punishing Withdrawal, Rewarding Delegation.” This is where Clair makes the important connection to explain how the norms of the court have a deleterious impact on criminal court outcomes for poor and minority defendants. Clair shows that the legal culture within which the defense attorney must work and which substantially constrains the activity of the defense counsel, rewards social privilege and punishes social disadvantage. Accordingly, to Clair, the legal culture of criminal courts, itself, is characterized by race and class discrimination. Notably, Clair’s narrative paints defense counsel in positive terms; as passionate about defending clients and protecting clients who are unjustly treated by the law. Yet, defense counsel, due to the established legal norms that values the precepts of negotiated justice, have a different goal than many of their disadvantaged clients. While the criminal defendant seeks acquittal or dismissal, the defense counsel looks for avenues toward mitigation of responsibility, a reduced sentence, or a suspended sentence in lieu of a period of incarceration. Judges, prosecutors, and defense counsel, alike, seek to silence or ignore defendants who exhibit behavior associated with withdrawal. Privileged defendants who delegate, defer, and negotiate, on the other hand, are rewarded in the sentencing phase of the criminal court process.
In the conclusion section of the book, Clair endeavors to place the findings of his qualitative work in a framework that will be useful to scholars, policymakers, lawyers, and citizens who are concerned with fairness and equity in the criminal courts. Here, Clair takes aim at a common misconception — that mandated legal representation, as required by the U.S. Supreme Court in Gideon v. Wainwright, is enough to ensure that the marginalized among us will receive justice and fairness in criminal court experiences. Specifically, to quote Clair:
“Yet, a central lesson of this study is that effective legal representation alone is not justice. Access to a lawyer is not itself a form of justice. Even when defendants are afforded lawyers, they can experience mistrust, confusion, disagreement, and frustration ... But even an exceedingly competent and trustworthy lawyer who can achieve their client’s legal goals is not necessarily acting as a conduit to justice either. Effective defense attorneys can certainly do a lot for their clients … The privileged defendants can attest to such benefits, which can importantly alter the course of individual lives for the better by preventing collateral consequences of a conviction or a prison sentence. But these remedies rarely constitute social justice.” (pp. 211-212).
Clair explains that counseling or coaching minority and poor defendants to remain silent and to defer to the expertise of defense counsel would do little to rectify the problem, because “the hidden rules of deference, coercion, and silencing are injustices all their own — for defendants and victims alike.” (p. 219). In place of this simplistic approach to change, Clair presents potentialities for change at three distinct levels: at the level of the attorney-client relationship in the existing court system, at the level of the courthouse and the courtroom workgroup, and at the level of broader law and society.
Clair’s book is timely and is an important contribution to the existing literature on criminal court systems and processes. Throughout the book, Clair remains true his social science roots by making important and clear comparisons and contrasts between the defendants — the cases — in his dataset, to illustrate the different criminal court experiences of the privileged and the non-privileged. The work is also important in its contribution as a qualitative examination of the processes that underlie and explain inequality. Clair’s approach is not typical. He does not examine a large dataset to reestablish decontextualized quantitative associations between being Black or Hispanic and more harsh or negative criminal court outcomes. Nor does the author attempt to create measures of class that can be statistically associated with such outcomes. Rather, Clair meets criminal defendants where they are and documents their individualized experiences in the criminal court process. Lastly, the book is an important contribution in that it connects the current context of the social justice movement to the realities of the criminal court system by identifying processes (the attorney-client relationship) that facilitate and reproduce inequality.
Kevin Buckler, University of Houston-Downtown