In recent years there has been a resurgence of interest in the operations of criminal courts. The last cohort of monographs on criminal courts in this vein were published in the late 1960s and 1970s and were heavily influenced by the Warren Court's criminal due process revolution and the President's Commission on Crime. This new body of literature—I think particularly of Issa Kohler-Hausmann's book, Misdemeanorland (Reference Kohler-HausmannKohler-Hausmann, 2019), Nicole Gonzalez van Cleve's Crook County (Reference Gonzalez Van CleveGonzalez Van Cleve, 2016), and now Matthew Clair's book, Privilege and Punishment – builds on prior work, but addresses important new concerns, and anchors the study of criminal courts solidly in relational sociology.
Each of these books focuses on a single city—New York, Chicago, and Boston respectively—and none of them proposes that their findings can be generalized across big cities in the United States. But all focus on generic dynamics, issues that are present in every city and every criminal court, and thus they serve to alert readers and would-be researchers of salient issues to explore.
All three of the books have another common feature. It is readily apparent that the authors spent a great deal of time in their courts—not just weeks or months, but years. This enabled them, like good anthropologists, to become immersed in their sites and become, as it were, flies on the wall and trusted acquaintances of those they studied. Further, it allowed them the leisure to reflect on what they saw, and to move back and forth between the field and their offices in order to clarify points of follow up on loose ends. Good fieldwork takes time, and Clair and the others took the time to get it right.
While providing a useful overview of Boston's criminal courts, Clair focuses on two issues in particular, “how race and class matter,” as is indicated in the book's subtitle, and the relationships between the accused and his or her defense attorney. His treatment of both sets of issues is both exemplary and important. He explores his subjects through a mixture of lengthy interviews with defendants, sustained observations, and conversations with defense lawyers, judges, and police officers. His sample is drawn for convenience, so one cannot tell how representative it is for the defendant population as a whole. But his interviews (really, extended discussions) with the 52 defendants, and his accounts as an unobtrusive observer of their meetings with their lawyers and their appearances in court, reveal the contingency and variability of outcomes depending on class, race, employment, availability of treatment programs, and the luck of the draw in one's defense attorney.
Some current studies of criminal courts are anchored in a view of them as an institution or an open system in which decisions are simplified into routine—though they can be variable—practices that emerge in response to mutual adjustments of the various actors. Here, these actors use the law as a resource rather than norms to be interpreted and applied. Others correlate a set of fixed characteristics with outcomes in various junctures of the criminal process.
In contrast, Clair's study is anchored in the field of relational sociology. This school has its roots in European social theory, some of the foundational texts of sociology, and some of the work of American sociologists Charles Tilly and Harrison White. It seeks to account for behavior not in terms of individual agency, structural categories, or institutional imperatives, but in terms of relationships that are shaped and stratified by any number of factors.
Class, race, knowledge, experience, and the like can shape status positions in relationships, but they also vary depending upon the nature of the relations between, say, a pair of individuals or a pair of groups. Sociologists have used this concept to analyze a variety of concerns, ranging from relations between teachers and pupils to high and low cultural preferences and social networks. Relational sociologists maintain that these status factors are not fixed or immutable, but can be inherited (race), learned (education; elocution), earned (income), faked (accents), and lost (jobs; drug addiction). They can be aggregated with some precision in a great many ways, but not in terms of creating a new SES index, since they are always understood relationally. In Clair's book, this framework is applied to defendants and their defense lawyers.
Clair maintains that “[m]ost scholarship on race and class inequality in court focuses on either the defendants' individual attributes in isolation or court officials' individual attributes in isolation (18).” He too began his study in this vein, but reports that he soon came to recognize that, “this approach does not provide thorough descriptions of how inequalities are constituted in everyday moments, nor do they provide thorough explanations of how inequalities are reproduced as attributes unfold, are challenged, and change in social interaction with others” (18). This led him to adopt a relational sociological approach. Only through exploring the dynamics of relationships, he maintains, is it possible to understand outcomes. This shapes how lawyer and client see each other, understand each other, and communicate with each other. Given the arrest, subsequent outcomes—or, at least, variations in relative leniency and harshness are in large part a function of the relations that are shaped by the status differentials or equivalencies between defendant and lawyer.
All things equal, he seems to be saying, relatively (I emphasize this) high-status defendants, vis-à-vis their usually private counsel, are more deferential to their counsel, express confidence in them, let them do their jobs, and secure better outcomes. Low-status defendants, vis-à-vis their public defenders, rarely express confidence in their lower-status, court-appointed lawyers and often do one of two things: energetically try to shape their case (with proposals their lawyers rarely appreciate) or withdraw with a “whatever ….” attitude, falling into a pattern of passivity towards their attorneys and the court. Clair reports this is a self-fulling prophecy. Defendants have little trust in their lawyers, think they are not very good (If they are good, why aren't they “real lawyers” instead of public defenders?), and do not listen to them. And public defenders, some frustrated by these responses, reflect back these same attitudes, and act accordingly. Clair was able to get to know his 52 criminal defendant respondents quite well through multiple interviews that were in effect lengthy conversations, observations of them in court, reviews of their criminal court records, and as a fly on the wall in meetings with their lawyers. In doing so, he was able to flesh out their backgrounds, understand their challenges (almost all faced trauma as youngsters), appreciate their resolve and passivity, and come to understand their sense of themselves and how they try to fit into a world that has brought them to criminal court. They are not categorical “types,” but variable human beings as they take stock of their situations and of their lawyers. Unfortunately, Clair does not do the same for the defense attorneys. For the most part, he divides them into familiar pre-assigned categories, private attorneys and public defenders, and associates each with the familiar stereotypes. This is troubling since his own data do not reveal this distinction to be particularly useful. For instance, the most impressive defense attorney he introduces to the reader is a Black woman public defender who fiercely fights for clients tooth and nail, and is usually able to wake up her somnambulant clients. Furthermore, he shows that some of the private attorneys fall far short of the image they try to portray. One wishes that Clair had done for this group what he did for the defendants, to get sense of them as they see themselves and how this shapes how they relate to their clients.
Outcomes of cases varied widely, and Clair convincingly attributes much of this to the nature of the relations between clients and attorneys. Outcomes include release on bail, a suspended rather than a jail sentence, a shorter rather than a longer sentence, and at times the disposition of other related charges. Differences jump out at the reader. Those with more resources or social capital are able to retain lawyers, who presumably have more resources) and this synergy leads to better outcomes. Conversely, those who are down and out, and often Black, must do with public defenders do the worst. There is no spark between them, and the consequence is worse outcomes.
Why? Clair's answer is not obvious. It is not that on balance public defenders are less competent. Rather, those defendants with some social capital and who have selected their own lawyers have more confidence in their lawyers and the legal process. They freely open up to their lawyers, depend on and defer to them, and this, in turn, animates the lawyers. In contrast, those defendants with fewer social resources and skills tend to distrust their appointed lawyers, and either withdraw from engagement, or try to shape their cases in ways that their lawyers think is unhelpful and reject. In either instance, they show a distaste for their lawyers that in various ways is usually reciprocated.
However, things are not so neat. Almost all defendants (who also have more social capital) with private lawyers express enthusiasm for them, and defer to their judgments. And some private lawyers are perfunctory even if their clients do not realize it. Alternatively, some defendants with very few resources have public defenders with superb credentials and fierce commitment to their clients, which translates into better outcomes. So, to some extent, even these experience-based relationships are based on pre-determined stereotypes that prove difficult to shake.
As I read the book, race is an important factor, and at times Clair appears to be pursuing the question, “Which is more important, race or class?” through a process of analytic induction. But he never quite gets there. However, in contrast to so many other studies of criminal courts, he does not report repeated and pronounced instances of overt racism and racial disparities. This may be an oversight or a function of his sampling, or my misreading. Or, it may simply be that he studied Boston, and not Chicago or Cleveland or New York. Conceivably, it may be a feature of the approach of relational sociology, which looks toward clusters of factors that shape status and status differentials to explain variability in social capital and stratified outcomes in various relations. Whatever the case, this concern will certainly be one of the issues that scholars building on Clair's book will want to explore.
I could go on and on about the many strengths and implications of this book. Suffice to say, I think this book would be a marvelous book to work through in a graduate seminar which deals with race, class, crime, and courts. It makes me wish I were not retired and could teach the class. Moreover, it fills me with spite and envy. Why did not I write it?
