Abstract
Matthew Clair's new book, Privilege and Punishment, can be read in more than one way. Partly a study of trust, of professional-client relationships, of the role of decorum in professional settings, of the tension between client-defined justice and justice in practice, of how organizational culture can undermine some organizational goals, of how and to what ends legal cynicism maps onto intersections of race and class, and of the relationship between client deference and professional identity verification—Privilege and Punishment has as much to offer social psychologists, organizational researchers, and cultural scholars as it does scholars interested is punishment in the United States. Researchers who follow this journal will envy Clair's data. The study is set in the greater Boston area where Clair conducted courtroom observations. He also interviewed 63 clients facing criminal charges; he was permitted to shadow and pick the brains of three defense attorneys; and most covetable, he sat in on conversations between defense attorneys and their clients.
Clair spreads his data over five chapters, beginning with an argument that some form of “alienation”—a broadly defined concept that Clair describes as similar to “anomie”—explains the onset of his participants’ criminal behavior. There is no sustained discussion of alienation throughout the book, and whether the reader is convinced of that argument, the meat of the book is in chapters 2 through 4 where Clair's goal is to show “how race and class inequalities in society are embedded in and reproduced through attorney-client” relationships (p. 6). The upshot of that argument is this: “the poor of all racial backgrounds” tend to have conflictual attorney-client relationships, resulting in unfavorable sentencing outcomes; “white-working class clients” have relatively productive attorney-client relationships and better sentencing outcomes than the poor—a reminder of the significance of race across class distinctions; and “middle-class people of all racial backgrounds” have even more productive attorney-client relationships and sentencing outcomes (p. 8). Clair argues these patterns are, to one degree or another, driven by the character of attorney-client relations and that his client participants fall into one of two analytical categories: “disadvantaged” and “privileged.”
Defining these terms lead to some interesting analytical complexities: “I define disadvantaged people as those who live in neighborhoods with high levels of punitive police surveillance and who have routine (and often negative) experiences with the legal system, limited social ties with empowered people, and limited access to financial resources. Privileged people, by contrast, are those who have access to empowered social ties and financial resources and who rarely have negative encounters with police or other legal officials” (p. 7).
These definitions set up a tautology. The “disadvantaged” are defined by “negative experiences with the legal system,” and the “privileged” are defined by “rarely” having such “negative encounters,” so when the analysis proceeds and Clair shows us disadvantaged clients having negative experiences, we are not shocked because he has defined the groups by the outcomes that he should demonstrate. This is not a devastating mistake because students of punishment and inequality will recognize the patterns Clair describes. Still, it is fair to ask how this tautology shapes arguments in the book.
Those arguments are mostly developed in chapters 2 and 3. Regarding disadvantaged clients, the principal claim is that they mistrusted their defense attorneys, creating conflictual attorney-client relationships, which he terms “relationships of withdrawal.” There are two types: “withdrawal as resistance” and “withdrawal as resignation.” The latter occurs when a disadvantaged client (this is by definition) appears somewhat aloof and resigned to whatever legal strategies the defense attorney employs. “Withdrawal as resistance” occurs when disadvantaged clients (again, by definition) use “cultivated legal expertize” to challenge and push defense attorneys to mount a defense that is as much about maintaining their client's dignity and arguing on the merits of morality as it is about mitigating negative sentencing outcomes. This is consequential argument. It suggests that patterned inequalities in our criminal justice system have led Clair's disadvantaged clients to adjust their courtroom hopes to mere maintenance of dignity and getting on the record how police, probation officers, and halfway house managers have mistreated them.
In contrast to disadvantaged clients, a “privileged” client maintained a “relationship of delegation,” conceptualized as a relationship of “trust and consensus” and definitionally tied to “privileged” clients to set up more circular reasoning. Interestingly, when privileged clients asked questions of and suggested legal strategies to their attorneys, Clair described them as “engaged”—not “resisting” as he did with disadvantaged clients who advocated for themselves. The word choice is important.
Clair hangs a lot on how disadvantaged clients cultivated and marshaled legal expertize in discussions with their attorneys. His is a familiar phenomenological perspective, contending that experience equals useful practical knowledge, but we know this is not always true. My reading of Clair's arguments raised two sets of questions. First, if disadvantaged clients cultivated so much “legal expertize,” why did they so often violate basic rules of court decorum, and why was their self-advocacy so wrongheaded? I should say that I have been to court more times than I can remember, and many of the men in my own ethnography of a county jail had years of court appearances. Despite all that experience between us, none of us had anything that could be characterized as “legal expertize.” Men in my study with more than three consecutive years of court appearances could hardly explain why continuances were being issued—what the holdup was for their trial. In Privilege and Punishment, Clair presents ample data that the legal expertize disadvantaged clients had created more problems than it solved.
Second, one would expect privileged clients to have little to no criminal histories. However, the privileged had similar ages of onset, had been arrested multiple times and had plenty of opportunities to cultivate legal expertize. So, why hadn't they? Why did the experiences of disadvantaged clients constitute “cultivated legal expertize” while the experiences of privileged clients did not? Whatever the answers to those questions, Clair tells us that privileged clients trusted their attorneys and therefore had better sentencing outcomes compared with disadvantaged clients who mistrusted their attorneys and spoiled their attorney-client relationships. Note the causal language. The clients drive the action; the defense attorneys, judges, and court officials respond. If clients defer, court officials reward them. If disadvantaged clients try to participate too actively in their cases, court officials punish them.
I found Clair's explanation of the above relationship disappointing. Indeed, I was dismayed to read the following: “The privileged spend much of their adolescence and early adulthood attending school, going to doctor's appointments, and spending afternoons and weekends in extracurricular activities, at summer camps, and at sports events. As they enter adulthood, they spend most of their day engaging with workplace colleagues, assistants, and bosses” (p. 134).
Clair arrived at the summary statement as a way of explaining why privileged clients had not cultivated any significant legal expertize and therefore deferred to their attorneys, but the passage reads as though privileged clients were simply too busy making all the right decisions in life—“going to doctor's appointments” and what not—to get into trouble with the law, and by implication, Clair seems to be offering an indictment of choices made by disadvantaged clients. Again, Clair's data does not support this claim. The privileged had plenty of run-ins with law enforcement, and as some of Clair's clients explained, they benefitted from networks that included ties to influential legal officials, financial resources to purchase a better quality of defense, and white privilege.
Chapter 4 deals with the complexities of criminal defense from the viewpoint of defense attorneys. This is my favorite chapter though my read is that too often Clair presented defense attorney perspectives in an uncritical way. Again, clients act; courtroom officials respond. Nevertheless, in chapter 4 we learn defense attorneys (a) take exception to being challenged by disadvantaged clients; (b) are as concerned about maintaining a professional identity in the eyes of judges and prosecutors as they are about using every legal strategy available to their clients; (c) determine legal strategies by judicial habits; and (d) sometimes give less effort in cases where they suspect the client may be facing too many of life's problems to fully participate in their own case. In short, justice may take a backseat to courtroom culture and professional tensions, and “disadvantaged” clients may be justified in their legal cynicism and “withdrawal.”
Chapter 5 is a conclusion with now customary policy recommendations. Overall, Privilege and Punishment makes some compelling arguments, and instructors should find the book useful in courses on courts, criminal justice inequalities, organizational culture, and professional-client relationships.
