Abstract
Over a century after WEB DuBois (1903: vii) established that “the problem of the Twentieth Century is the problem of the color line”, the United States criminal legal system remains comprised of a violent set of institutions that govern through mutually constitutive justice regimes, one for white men of privilege and a myriad of others for everyone else. In Black Reconstruction, he warned “it was property and privilege, shrieking to its own kind, and privilege and property heard and recognized the voice of its own” (1935: 563). In a racial capitalist society, privilege recognizes and rewards privilege. DuBois interrogated the unequal dimensions of structural violence defining the lived experiences of the “underclasses,” revealing how this society mobilized the criminal legal system to ensure the Black community remained physically and socioeconomically captured post-Emancipation. Several generations later, privilege still determines the likelihood of individual and community-wide contact with the criminal legal system and significantly, which justice regimes people encounter once forced to navigate this system as criminal defendants. Recent groundbreaking research documents how privilege and legal representation structure these experiences, leading to unequal criminal court outcomes for poor and working-class people, especially racial and ethnic minorities.
In Privilege and Punishment: How Race and Class Matter in Criminal Court, Matthew Clair convincingly argues that the attorney–client relationship is a significant mechanism through which issues of trust intersect with the legacies of privilege and racist assumptions undergirding the criminal legal system. Clair employs rigorous ethnographic and interviewing methods to study criminal courts in Boston, Massachusetts, cultivating a copious amount of data on attorney–client interactions and their impact on how people experience the criminal legal system.
The central aim of the book is to show how the attorney–client relationship is fundamental to the ways in which people experience justice. Given histories of state abandonment and the hyper-criminalization of poor and working-class communities, disadvantaged defendants are more often distrustful of their defense attorney and contest their expertise, while privileged defendants without this lived experience benefit from trusting relationships with their attorney and defer to their expertise. Defense attorneys, often public and court-appointed, attempt to control their disadvantaged clients, who are punished by criminal courts for their displays of resistance and public demands for justice, while defense attorneys of privileged clients, often privately retained, are able to cultivate trust with their clients and perform advantageously on their behalf.
Clair excellently contextualizes his argument by suggesting that assertiveness is not associated with privilege and corresponding beneficial outcomes when performed within formal institutions of social control. Contrary to how the performance of assertiveness and entitlement are norms of privilege that produce advantageous outcomes within other social institutions, the criminal legal system punishes such demands. Displays of personal advocacy are interpreted by legal actors as performances of insubordination, rather than cultural indicators of capital and legal savviness.
Across four chapters, Clair describes potential pathways steering people toward entanglement with the criminal legal system as defendants. People who are disadvantaged, such as racialized minorities and the poor and working class, are unable to avoid most negative encounters with formal institutions of social control like the police, such that their path into the system breeds contempt and mistrust of legal actors. In contrast, those who are privileged, such as white and middle-class populations, enter the system having some but much less prior experience with formal institutions of social control, let alone negative experiences, such that they are afforded a hopeful pathway where they view cooperation and negotiation with legal actors as probable. Pathways frame how defendants engage in or withdraw from their attorney–client relationships. Clair outlines how trust operates for disadvantaged and privileged groups in ways that undermine or support the perceived legitimacy of their defense attorney, which in turn impacts how defendants engage their counsel in developing strategies, setting objectives, and negotiating with prosecutors. Clair convincingly reveals how the legal culture of criminal courts, which requires people navigating the system as criminal defendants to perform unquestioned deference to legal actors—including their attorney, prosecutors, and judges—constrains disadvantaged people who instead tend to draw on previous negative interactions with the criminal legal system to question legal actors and make civil rights demands of the system, including of their defense attorneys.
Privilege and Punishment is a valuable and innovative contribution that will positively impact the direction of future research in many disciplines and subfields as there are various ways to interpret its contributions. For one, we can understand Clair’s arguments as complementary to previous research on legal cynicism, structural violence, and ritualized degradation within formal institutions of social control, where the cultural performance of absolute deference is violently demanded and bartered in exchange for freedom. His findings suggest that the privilege to perform deference is conditioned by previous classed experiences with criminalization that to a degree shelter privileged defendants and reduce the likelihood they will engage the criminal legal system with a distrustful disposition. There is a likelihood they may never have needed to rely on grassroots legal knowledge to fight the system for their life or the lives of those in their neighborhood.
A significant merit in Clair’s analysis for our understanding of criminal courts is that it reveals how Black and racialized minority defendants with differing class backgrounds and cultural markers of privilege might systematically navigate criminal courts differently, with the attorney–client relationship a major determinant of this experience. His nuanced analysis clarifies how race and racism structure experiences navigating the criminal legal system along classed dimensions, contributing to a long line of research on stratification within the Black community. When examining unequal experiences within the Black community, we must attend to how class affords certain privileges and ask questions that disrupt the notion that the Black community is a homogenous population. Clair achieves this intricate classed analysis while still centering race and racism and making it clear to the reader that Black people and racialized minorities, when compared to white people, continue to experience different regimes of justice first and foremost.
Clair conducted his fieldwork in the Boston area, a region many would agree has progressive criminal courts in a liberal state with relatively low levels of incarceration. Black people and racialized minorities, however, are still significantly overrepresented among those ensnared by Boston’s criminal courts and class is a powerful structuring force. Scholars have shown that mass incarceration is a bi-partisan endeavor, with both tough on crime and liberal policies ballooning criminal legal systems across the country. Clair’s careful exploration shows that despite the best intentions of defense attorneys or justice reformers, there are structural determinants of class and race-based inequality that persist within formal institutions of social control whether they operate in states with relatively low or high rates of incarceration.
I argue this occurs because the legal culture of bargained justice that undergirds attorney–client relationships remains nested within the scaffolding of an intentionally racist system. Given the USA’s racial capitalist foundation, racist intentionality structured the logic and operation of the criminal legal system centuries ago. This foundation brought us the linked consequences of Indigenous genocide, chattel slavery, convict leasing, Jim Crow, and mass incarceration in the name of the law. It is from within this institutional predisposition for violence that despite the best intentions, race and class remain intertwined across generations to produce unequal outcomes for disadvantaged defendants. Our criminal legal system has historically demanded deference and violently restricted the freedoms of those perceived as uppity and irrationally dignified, a perception that is raced, classed, and as feminists have clarified, highly gendered. Historical intention leaves an institutional memory—a blueprint that lingers and impacts the routine experiences of those navigating a reformed criminal legal system in the present.