Matthew Clair is assistant professor of sociology at Stanford University, where he also holds a courtesy appointment at Stanford Law School, and an award-winning scholar of inequality in the criminal legal system. His writing has been published in Social Forces, California Law Review, The Nation, Boston Review, and Public Books. Clair’s recent book, Privilege and Punishment: How Race and Class Matter in Criminal Court, explores the relationships between defense attorneys and their clients in the Boston, Massachusetts, courts, revealing how the dynamics of these relationships—suffused with both racial and class-based meanings—beget profoundly unequal consequences. In late January, we discussed the development of the book project, American courtroom culture, and alternatives to our present, unjust legal system.
Imani Radney (IR): The book starts with a striking personal anecdote—your chance encounter with your cousin in a Chicago courtroom—as well as a discussion of how that encounter fundamentally shaped the research. Can you talk about the genesis of the project, and the road that brought you to that courtroom in the first place?
Matthew Clair (MC): The genesis of this project really started in 2013, the summer when George Zimmerman was not convicted of murdering Trayvon Martin.
When I started graduate school at Harvard in 2012, I didn’t know exactly what I was going to study. I knew I wanted to understand and find systemic ways of reducing racial inequality. I thought I might focus on the educational system, maybe the labor market. But watching Trayvon Martin be killed; then watching the justice system excuse and justify that killing; then marching in the streets in Roxbury and other parts of Boston with other people who were similarly motivated; and then of course the emergence of the Black Lives Matter movement: all of this really animated my research from the beginning.
So, I started my research in 2013 and its aftermath. I began observing courthouses in the Northeast with Alix Winter, a fellow graduate student and dear friend. We spent most of our time interviewing and talking to people who are empowered in the system: prosecutors, public defenders, judges.
But when I began my dissertation research, I started reading more of the literature, thinking more about the data that we had already collected on those who were in power. I wanted to know more about how defendants—those subordinated by the law—view the system, how they strategize in relation to the system, what are their individual and community-level strategies.
Meanwhile, I noticed a surprising number of privileged people—people who would come into court with suits on, with maybe their wealthy parents by their side—and I thought, Who are these relatively privileged people who are also being pulled into the courts? How are their experiences different?
Around this time, I ran into my cousin in court. I was at a conference in Chicago; Alix and I were presenting on some of our work on judges, and how judges think about race and racial inequality. We had adopted a practice: wherever we were visiting, we’d try to visit a local courthouse and see the quality of justice in different areas. Cook County, Illinois, has a notoriously unjust criminal court. We picked a random courthouse and went to it.
It was striking and unbelievable to go to one random courthouse and run into my cousin. This is a person who I didn’t know before, but we shared a last name. And if anyone in Chicago has the last name Clair and is Black, that person is probably related to me. My dad grew up in Chicago on the South Side; I knew that I had many cousins because he had several siblings, some who have passed, but most who are still with us, and they have several children. So I knew some of my cousins, but I didn’t know this one. But he looked just like me.
When we went to lunch after seeing him in court, Alix and I were just stunned. I called my dad; I mentioned his name; I asked if he could call one of my aunts and figure out if we knew who this person was. He ended up being a first cousin. In that moment I realized, Oh, the violence of the law is something that personally touches me too.
This also really underscored the class divide within my family and in broader society. I’ve never been arrested. I’ve never been pulled into court. But this is a common experience for people, like my cousin, who are not just Black but also are poor and living in highly policed neighborhoods.
IR: Your response is so dense with social, political, and historical meaning. This moment of encounter; the distance between your life and his life, made manifest in your position in that space, in that room. It really speaks to how Black people across class and other distinctions are made aware of the extent to which freedom or captivity is determined by chance. It is hard to avoid the reality that many of us—most of us—are one accident, one mistake, or one instance of bad luck away from the inside of a courtroom or a cage. One moment of callous indifference or malice from sharing the fate of Kalief Browder or Sandra Bland. I don’t know how many of your white classmates at Harvard, or mine for that matter, have experienced that reckoning: that freedom is the result of a near miss—a cosmic near miss.
MC: That historical, biographical aspect of chance and near miss, that is a profound way to describe it. Look at my dad’s history. He grew up on the South Side of Chicago. Every one of his siblings stayed there and didn’t go to college. He got a chance to go through literally what is called A Better Chance program. Through that, he went off to a boarding school and was able to then experience social mobility. This completely changed his trajectory, the trajectory of my immediate family. So that historical chance is so profound. And you are right, it has then structured me into having a very different life than my cousins.
But at the same time, I’m still a Black man in America. I’ve been very lucky to not yet experience police violence. But there are so many instances when a middle-class Black person is not afforded the same credibility, the same second chances as a white working-class person.
In the book I wanted to really underscore that race and class categories operate in distinctive ways in distinctive institutional encounters and moments. I wanted to be precise about the specific situations and resources that are often, though not always, associated with these categories. It is these situations, resources, and the relations they enable or constrain that constitute inequality. This is where white supremacy and class advantage operate in people’s everyday lives.
We often think about the criminal legal system as this totalizing, machinelike entity; and that if you are Black it is going to be uniformly terrible, and if you are white it is going to be wonderful. And if you are poor it is going to be terrible, and if you are wealthy it is going to be fine. In the aggregate, this is true on average.
But really these social categories are probabilistic rather than deterministic in individual lives. Such a totalizing portrait leaves little room for understanding resistance and possibilities for change and intervention. Instead, particular moments often unfold in complex ways: moments of policing; moments in how a case moves from the police encounter to being charged; moments where all these different legal actors assess the credibility, the value, and the worth of people at these different stages, based upon their own class or race biases. So disentangling how each of these encounters is different (for example, how racism in the police encounter is different from racism in an encounter with one’s defense attorney), and how situations and resources play out differently in these encounters for different people, is important to understand.
The court process just means something different for disadvantaged defendants than it does for privileged defendants and for most lawyers.
IR: I circled most of the references to “multiple second chances” in the book because that phrase really compresses the privilege that you just mentioned. How many second chances do you get before each stops being a second chance, and how many people are not afforded a literal second chance?
I found those moments where your respondents narrate their relationships to police so striking. My research is on police violence; I was really interested when your respondents would say, “Well, my uncle is a cop,” or “I wasn’t worried, I know that guy, I’m friends with his brother.” These representations of police as part of social and familial networks, as kin, exist in sharp distinction from the stories of Black respondents who live in hyperpoliced areas.
MC: Yes, the concept of police as family; I don’t directly state it that way, but I really appreciate the way you are characterizing it. This is often true for working-class white people. But for middle-class white people, the way they typically get second chances or escape policing is because police are drawing on dominant stereotypes about the worth of middle-class whiteness. In the book, there’s a police officer who tells me his thoughts about traffic stops: “If it’s a man who is going home to his wife and has a baby seat in the back of the car and he’s respectful, I’m going to give him a second chance.” Each of those qualities is coded as white middle class. But for the working-class white people in the study who are policed, privilege has a different content: it is very much about familiarity, kinship of some sort, and a sense that police are on their side that constitutes their second chances. We saw this sense of kinship at play with the Capitol riots, alongside other forms of white supremacy.
IR: We sure did.
MC: Relationship, kinship, and a feeling of camaraderie [exist] between working-class white people, because, at least in part, many police consider themselves working-class white people and come from these communities.
I was surprised at how many people in the study who are working class and white had a parent who was a police officer, or a friend of a parent who was a police officer.
There is just much more recognition afforded to working-class white alleged offenders as human and as fallible. Their mistakes do not define their relation to the law. And this recognition is not afforded to working-class Black people, Latino people, or poor people.
IR: In the book you explain how attorneys and clients often bring different meanings to their conversations about their legal case. Some defense attorneys have their own sense of what success looks like that is markedly different from their client’s. You discuss, for example, defendants who would prefer to be incarcerated rather than go on probation. Or defendants who are adamant about making sure that the police violence they experienced is brought to light in the courtroom, while their lawyers think that information is entirely irrelevant to their legal strategy. These moments of conflict are where we see instances of overt silencing in the courtroom. You reveal the multiplicity of meanings that are projected onto or that constitute these conversations between attorneys and their clients.
MC: Yes, that is spot-on. The court process just means something different for disadvantaged defendants than it does for privileged defendants and for most lawyers. For disadvantaged defendants who are victims of constant police surveillance and harassment in their communities, their goals are often to litigate police abuse and violence that they have personally experienced or that their communities experience. The court process, for them, is not only about individual selves beating a case. Of course, many do want to beat their case, but they have additional goals rooted in their unique experiences: This police officer who constantly harasses me, I need the court to know that they are abusing their power. I need the court to know that they are sloppy in their collection of evidence and that it violates my constitutional rights.
These distinct goals mean that many disadvantaged defendants want to use different procedural tools like motions to dismiss or suppress evidence that will get police officers on the stand. Even just taking their case to trial will also get a police officer on the stand.
Meanwhile, defense attorneys think the goal of the court process is effective representation, which by their definition means mitigating the possible legal court punishment. They think, Our goal is to reduce the formal legal outcomes that you may receive in court, and in order to do that, you need to actually allow us to work with the prosecution, allow us to get the prosecution to drop certain charges, which requires that we don’t do these motions—that we don’t litigate police abuse, that we don’t question police practices, that we instead work to get you a good plea deal.
Oftentimes what constitutes a bad attorney-client relationship for a defendant is disagreement along those dimensions—on what the point of the court process is. To be sure, some defense attorneys are more aware of this reality than others, and of the need to engage in what has been referred to as client-centered defense. Client-centered defense is the idea that instead of focusing on what you as the lawyer-expert believe is the best outcome and the best pathway to that legal outcome, you should center what your client wants and desires. And this is with respect to both the instrumentality of the pathway and strategies to get somewhere and what the ultimate somewhere is, what that ultimate goal is.
Part of what I recommend at the end of the book is for defense attorneys to take clients seriously with respect to their distinct forms of knowledge and expertise.
IR: You do a great job in the book of showing all the spaces of knowledge acquisition and circulation that underprivileged defendants participate in. Contrasting the established notion of endemic disinterest or distrust in the whole system, you reveal that people are actually engaged and have faith in legal knowledge. They just have different understandings of what that legal knowledge may mean. In a sense, it’s disadvantaged people saying, “We have been thinking about this together, and we want our ways of knowing and thinking to be respected through or alongside or within the formal institutions.” It’s unfortunate that so often in the book the exercise of that cultivated knowledge is punished. In the conclusion, however, you explain that there are ways—like the client-centered defense you just mentioned—of putting those values and ideas at the center of effecting justice or addressing harm or whatever the court system is supposed to be doing.
MC: Right, yes. I very much see the disadvantaged people in my study, as they cultivate legal expertise and knowledge, really trying to force the system to uphold what it in the ideal should be upholding. That is, the legal procedures and constitutional rights that in the ideal we have agreed as a society matter and should exist, but that in reality the court process basically passes over, invalidates, ignores, and renders illegible.
I very much see the cultivated expertise of disadvantaged defendants as trying to push for the realization of ideals of justice. And so, yes, they hope that these legal tools will be upheld as they are supposed to be, as the supposed intent of these legal rights was meant when we were crafting this legal system of ours. Of course, there’s much evidence that the system was never meant to afford justice to marginalized people, but there is certainly a polyvocality of intent among legal actors.
I see disadvantaged defendants’ cultivated expertise as accurate, even though it is often invalidated and punished. The ordinary routine of the legal process does not see these forms of expertise as valid. Still, it is accurate; yes, you should be able to question the way the police gathered evidence—some of the ways police are gathering evidence are unfair and do violate Fourth Amendment protections, even if the court ignores it—or even if the judge refuses to entertain the possibility that there was no probable cause for an arrest.
IR: Sometimes I feel like, in a way, a lot of our work is just trying to make sense of the aftermath of the Warren Court. Mid-’60s court decisions about legal rights are so significant in the production of this culture.
MC: That’s so right. In some ways they were quite symbolic; they maybe were not actually ever meant to be enforced in practice. Maybe that is right.
What we’re learning here is that the Warren Court expanded rights in many symbolic ways. But routine trial-court practices have not upheld those rights, and appellate courts after the Warren Court haven’t upheld them either.
IR: Right—Terry v. Ohio, the authorization of stop and frisk, was also a Warren Court decision.
MC: Yes, that’s true. That’s true.
IR: One of the things that I appreciate most about your intervention—and it is something that I want to carry on in the work that I do moving forward—is the attention to affect, and your choice of using interpersonal relationships as the unit of analysis. That is, your work documents not just inequalities but also how they are experienced and how they are felt.
In my reading of the book, it is courthouse culture—the culture of silence, coercion, the prioritizing of procedure over fact—that connects the interpersonal experience to the larger-scale unequal outcomes. How do we bridge that? How do we think about your very intimate and interpersonal-scale documentation of inequality in relationship to this colossal court-system monster?
MC: Scholarship on the carceral state and the rise of policing and court processing over the last 40 years is super important. Together, this work unmasks the political economy of punitive legal control. It gives us an understanding of the shifts in political economy and dynamics that gave us such a massive rise in the number of people pulled into the criminal legal system and into prison and jail. There are more than 4 million people on probation or parole, 2.3 million incarcerated in jails and prisons, 17 million court cases in state courts every year.
To complement that literature, I show the way that this punishment regime feels for people intimately as they are going through the legal process. Because sometimes, in those numbers and disparities, you can forget that there are privileged people who go through this as well—and that they experience this system quite differently.
Obviously, privileged people are not the target of the system, by any means. But they are also being pulled into the system to a greater degree than they were historically. What I am doing in the book is showing that if we look at the privileged defendant—someone who has so many privileges in resources and relations in life—we can see even more clearly how unjust this system is for the disadvantaged. We can see possibilities of ways that you, at the individual level and in particular moments, can avoid the most punitive aspects of the system, when you have privileges. This insight is one of many that an intimate portrait of people going through the system affords us.
We can also see how people—privileged and disadvantaged alike—differently exert agency, cultivate expertise, contest the ideologies of the system, and resist in various ways. For example, we know that the majority of people plead guilty, but the process of getting there varies immensely. Studying the different ways people go through this punitive process also reveals pockets of resistance, possibilities for alternative ways of envisioning the system, and alternatives that come directly from people impacted by the system. I think this kind of micro-level, ethnographic analysis of interactions, of relationships, as they unfold on the ground is super important for emancipatory possibilities about the law.
IR: I’m really grateful for that effort because it can be too easy to lose sight of these liberatory possibilities. Obviously, activists don’t lose sight. But for me personally, as someone trying to produce scholarship about law enforcement and police violence, the notion of futurity feels perilous. My work focuses on PBA [police union] politics, so in a sense I examine their alternative ideal—the exact opposite of an emancipatory ideal.
I was really interested in your discussion of defendants who have withdrawn and resigned from their cases. A variety of complicating forces like child care and struggles with drug addiction impact their ability to actively participate in their defense. All of these other factors render asking your lawyer questions to make them feel heard, to make them want to invest more time in the case, an impossibility.
MC: Yes, totally. So much of the scholarly emphasis from the perspective of lawyers looks at disadvantaged defendants as, Ah, why aren’t they paying attention? Why don’t they care about their court case? I’m trying to show that defendants have lives; they are full human beings who have a lot going on, just like all of us. And in some ways, the court process could be less consequential than the intensity of dealing with poverty, dealing with being unhoused, lack of a welfare state that provides them with good opportunities for child care, and a lack of employment opportunities. These are all state failures.
Everyday inequalities outside the criminal court filter through the process, impacting the way the process unfolds for some people, for everyone really. The disadvantaged people who withdraw into resignation and don’t seem, from a lawyer’s perspective, to care about their cases are a reminder of this moment we’re in in the US, just a complete retrenchment of our modest welfare state from the middle of the 20th century. The courts exist within a broader political economy, where the disadvantaged are repeatedly not getting what they deserve as residents and citizens of this country.
IR: This book demonstrates just how much criminal court, as an institution, functions through performance. In many ways, this book shows that what matters most in these spaces is performance, and very specifically, performance of deference. Men constitute the majority of the defendants whom you worked with in this study. We are Black people, so our vocal resistance signifies a particular threat. Still, notions of submission are profoundly gendered and racialized. Visualizing many of these scenes of resistance in the book drew my attention to how the voices of resistant women might be perceived in courtrooms. A Black woman raising her voice in any given space is fraught, but what does that action mean in a courtroom in particular? How do reactions differ in response to a white or Latina or Asian woman doing the same thing? There are another thousand versions of this book I want to read, but gender in particular opens up a lot of questions to me.
MC: Yes, you are so right. As a good sociologist, because I only had 11 women in my sample, I hesitated to make strong claims about gender. But gender and gendered racism are implicit throughout the book. Take, for example, Brianna’s story in chapter 3. Here we have a privileged white woman who finds ease and understanding in her relationship with her lawyer. Her gender and the interaction between her race and gender are coded in various ways throughout the legal process. She was afforded multiple second chances, not just in policing but in the court itself, including a succession of sentences known in Boston as continuations without a finding, which are basically second chances. And then we see how her lawyer refers to her as a “cute white girl,” suggesting that she’ll be treated leniently on this basis.
IR: I circled that.
MC: And her lawyer says, It is going to be so easy for me to convince other legal actors that she is different from the majority of people who go through the system, who are men and people of color.
Although I never got to interview a Black woman defendant, I did talk to and follow some Black women defendants when I embedded in one of the public defenders’ offices in Boston. For them, this advantage of (white) womanhood did not exist.
MC: And acts of resisting or questioning lawyers were very much racialized and gendered. There was one time I was sitting in a courtroom gallery with three other people. There were two Black women, me, and maybe one other person. And the lawyer, a white man, looks around and asks for his client by name. The lawyer couldn’t differentiate between the two Black women to figure out who his client was.
IR: Of course.
MC: And his client, one of the Black women, says, “Okay, it is me.” And she gets up and they go chat in the hall. And then when she comes back, she sits down and says, “That was my racist fucking lawyer.”
MC: I would imagine there are a lot of gendered racial dynamics when you have a white male lawyer and you are a Black woman. And I suspect this in part because Sybil, one of the lawyers I followed from the defender’s office, is a Black woman. In interviews and informal conversations with her, she told me of all the instances of gendered racism that she has experienced as a Black lawyer. I could imagine that many Black women who are defendants are experiencing this and more from the same actors that she is engaging with daily as a professional colleague.
IR: Your conversations with Sybil offer a small window into the experience of Black women defendants.
MC: Right. And understanding gendered dynamics in court is one way—and there are many other ways—that I would love to see the book extended. Gender differences, but also looking at race differences with respect to gender. I would be curious to see a study with a larger sample size of women to see how this unfolds in the attorney-client relationship.
Who are these relatively privileged people who are also being pulled into the courts? How are their experiences different?
IR: Personally, I feel like this is such a weird moment to be researching the “criminal-justice system.” Obviously there have been glaring, hideous problems in many of the proposed policies ostensibly intended to alleviate the enduring issues in the system. Yet, this is also a moment where mainstream politicians are asked to state their positions on defunding and abolition. In the conclusion you really tie the evidence from your research to broader systemic proposals.
MC: I really hope, in just 10 years, say, that my invitation for us to continue to carefully connect the criminal courts to the abolition movement more broadly, the movement to abolish racialized systems of punitive legal control, is thought of as not radical at all. I hope that we, as a society, have not just moved to understanding the vision of abolition but also really committed to doing the work.
Many communities have been doing the work toward abolition for decades. Organizers, for example, have shifted budgets and budget priorities in their communities and have worked to make sure that their communities can thrive with employment opportunities and violence-interruption programs. I hope more people work to support organizers in that direction.
It has been wonderful to see the conversation around abolition start to, as you said, be something that politicians have to take a stance on. Of course, abolition is something that has been worked toward for a long time in the US. In the ’60s there was the Black Panther party; in the ’90s, Critical Resistance, Angela Davis, Ruth Wilson Gilmore, and so many others.
IR: Of course, of course.
MC: Now for our generation of academics, as we’re coming up, abolitionist theory and politics is something that a number of us are really engaging with on its merits. We are critically trying to understand and build alongside this vision. We are beginning to ask questions that organizers have been asking for decades, and working alongside them with complementary forms of expertise. How could we help to make abolition possible? What would it mean to shift resources from police and courts and prisons to communities, and to measure the implications? How could policing itself be understood as a form of violence? When researchers think about the measurement of homicide rates, should we be including police violence and police killings in our measures?
Abolition has implications, as you said, for knowledge production broadly across the social sciences. This is particularly true in critiquing the ways that we have classified and categorized crime, criminality, punishment. But it is also in the possibilities of moving from reforming and tinkering around the system to really understanding the fundamental injustice of the system, the unworkability of the system.
I teach undergrads and grad students here at Stanford, and this radical politics of transformation is everywhere. It exists with respect to climate change, to sexual assault, to economic inequality and injustice. Yes, there are contradictions that are hard to hold together; for example, trying to fight against sexual violence while trying to decarcerate. But we’re continuing to have very important conversations about the contradictions and finding alternatives.
I really see the book as giving more evidence of the need for rigorously investing in these transformative alternatives. These include restorative justice, transformative justice, and simply investing positively in marginalized communities rather than punitively controlling and exploiting them.
IR: How has teaching and working with students shaped the research questions that drive this book, or even future work?
MC: The students I teach are often more radical in their visions than I am. And they push me in wonderful ways; it has been so generative having conversations with several of them. I very much see my teaching as relational. I am learning from them, and of course they are learning from me as well.
I have spoken with students and alongside students. There are abolitionist organizations on campus that I have been able to engage with. They are doing wonderful work on the ground in the Bay Area and also doing work intellectually in the classroom. Students in sociology here, and some law school students, are ready for a new social system—moving from critiquing to building.
Social science, in general, needs to move from exposing inequality to assessing, measuring, and working alongside organizations that are building just alternatives. Our theme this year in the American Sociological Association is emancipatory sociology, drawing on the lineage of Du Bois. This is really a sociology of bringing about abolition democracy that Du Bois writes about. Investing in communities and making sure that we make a democratic system that isn’t just the absence of injustice or inequality, but the presence of just systems.
IR: I hope it is late-stage Du Bois and not early, Philadelphia Negro Du Bois.
MC: Oh yes, this is the Du Bois of Black Reconstruction; 1935, neo-Marxist Du Bois.
IR: Okay, dope, that’s our guy. [Laughter] Transformation—a benefit of living a long life.
This article was commissioned by Caitlin Zaloom.