As the political conversation in the United States increasingly scrutinizes the problems with policing and the inequities within America’s criminal justice system, many books have been published on the topic. From Michelle Alexander’s The New Jim Crow, to Bryan Stevenson’s Just Mercy, to Ibram X. Kendi’s How to be An Anti-Racist, these books paint a picture for the American reader of the inhumane abuses that pervade the criminal justice system. They breach topics such as racism in policing, prosecutorial power, and mass incarceration. This discussion is buoyed by recent civil unrest surrounding the killing of George Floyd. Attentive social media users have certainly seen long lists of books intended to inform the public about racism and the broken criminal justice system.
In his new book, Privilege and Punishment: How Race and Class Matter in Criminal Court, Stanford Sociologist Matthew Clair jumps into this conversation. Clair takes readers on a journey into Boston criminal courts with a focus on one under-studied part of the system: the attorney-client relationship. He examines the attorney-client relationships of people of various socioeconomic backgrounds to determine what effect those relationships have on their ultimate outcomes. His goal is to explore how the attorney-client relationship differs according to class and how those differences influence legal outcomes. His findings end up contesting a traditional sociological belief.
That traditional sociological belief is that low-income people are more reserved in professional situations such as hospital appointments and school meetings. This reservation prevents them from speaking out when it would benefit them. This is opposed to middle-income people who tend to be more vocal in those circumstances. If their child gets a bad grade, a low-income person is more likely to accept the grade silently while a middle-income person is more likely to contest the grade. These behaviors lead to better medical and educational outcomes for middle-income people.
Clair’s findings suggest that the opposite is true in the context of the criminal court attorney-client relationship. Low-income people tend to be more resistant and combative about their legal issues while middle-income people tend to be more reserved and delegate to their attorney. The low-income defendants want to have their voices heard and to achieve justice while the middle-income people trust their attorney and aim to avoid the worst judicial consequences at any cost. The system is built to either silence people or punish them when they resist the turning of the gears, so low-income people suffer because they struggle against the silencing.
Clair charts this path. Low-income people live in more highly-policed neighborhoods, so they come in contact with law enforcement and the criminal justice system more regularly. This contact is frequently negative and leads to them being more cynical about the criminal justice system. When they face criminal charges again, this cynicism leads to conflict with their attorney. They try to make their voice heard and question the advice of their attorney but that leads to more negative outcomes. People who speak up in court or fight with their attorneys end up getting longer sentences, less leniency and infrequently receive accommodations for their specific circumstances.
This contrasts with middle-income people. They have very little experience with the criminal justice system and rely predominantly on their attorney. They delegate the knowledge and decision-making to their attorney and follow the attorney’s advice. That advice typically leads to them avoiding the brunt, harsh outcomes of the criminal justice system – they tend to have fewer sentences of incarceration, receive more accommodations like drug treatment, and escape the criminal system quicker than low-income people.
Clair explains that this difference leads to greater disparity in the legal system and society generally. Racial minority populations tend to contain higher percentages of low-income people so the negative outcomes imposed on low-income people disproportionately hurt racial minorities. Additionally, low-income communities are highly policed, so, for them, avoiding police contact is difficult. They are arrested more frequently and more regularly receive harsh punishments. This dynamic leads to accumulations of harm and disadvantage in those communities.
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This book is a clarion call for defense attorneys. Clair focuses on how the attorney-client relationship fails defendants and perpetuates inequality. Attorneys must play a part in fixing that relationship. When attorneys are talking with their clients, they must work to establish a strong, trusting connection. The system is built to hurt defendants and functions to make them feel exploited, so Defendants will naturally lash out and be distrustful. Attorneys can play a part in fixing that harm.
Clair talks about how attorneys are often focused on mitigating negative legal outcomes instead of pursuing justice, fairness, and self-actualization for the clients. Defense attorneys must change that focus and help fix the attorney-client relationship. Clients want to have their voices heard and receive justice. Attorneys should listen to them and try to achieve the clients’ goals instead of simply trying to avoid the worst judicial consequences.
Most discussions of problems with defense counsel center on ineffective assistance claims. While it is certainly a problem when attorneys are drunk or asleep during a trial, situations like that represent a significant minority of cases. In most situations, defense attorneys are well-meaning and believe that the system creates injustices. This book talks about the harms that those attorneys cause despite their best intentions. It describes how people who are not explicitly racist or classist act in ways that increase racial and class disparities.
Clair is an able storyteller, and the book is filled with stories that give life to his sociological framework. Readers can easily place themselves in the hallways, courtrooms, and private meeting spaces depicted in the book to appreciate the difficulties felt by all involved. The writing keeps the reader engaged more naturally than many traditional academic texts.
Generally, people who care about the problems within the criminal justice system would benefit from reading this book. An avid researcher could fill bookshelves with accounts of horrifying systemic abuses justified under the guise of the criminal justice system. However, this book fills an important niche on that shelf – it is the first book that I have read that digs deep into the attorney-client relationship and discusses how that relationship perpetuates inequality. This relationship is frequently hidden from view due to confidentiality concerns, but this book brings it to light.
Ellison Berryhill is an Assistant Public Defender practicing in Tennessee.
Suggested citation: Ellison Berryhill, A Book Review of Matthew Clair’s Privilege and Punishment, JURIST – Professional Commentary, December 18, 2020, https://www.jurist.org/commentary/2020/12/ellison-berryhill-privilege-and-punishment/.
This article was prepared for publication by Brianna Bell, a JURIST Senior Editor. Please direct any questions or comments to her at commentary@jurist.org.
