Winter, Alix S. and Matthew Clair. 2023. "'The roughest form of social work': How court officials justify bail decisions." Criminology

Growing research has analyzed quantitative patterns of bail decisions and outcomes, but we know far less about how court officials justify their bail decisions. To enhance understanding of how bail decisions—and their resulting pretrial outcomes—are generated, we interviewed 104 judges, prosecutors, and public defenders in a Northeastern state. Court officials in our study report three primary justifications at bail: ensuring defendants return to court, preventing crime, and lessening harm. The first two justifications have been suggested in the literature, but the latter is novel and encompasses two secondary justifications: lessening criminal legal system harm and lessening societal harm. We show how these justifications and the decisions they enable blend risk management with rehabilitation and emerge from court officials’ shared assumption of defendants’ social marginality but varied beliefs about what to do about such marginality pretrial. Each justification allows for distinct, but at times overlapping, bail decisions. We discuss the implications of our findings for theories of court official decision-making, research on racial and socioeconomic inequality, and bail reform policy. 

Clair, Matthew and Alix S. Winter. 2022. “The collateral consequences of criminal legal association during jury selection." Law & Society Review

How does a potential juror’s association with the criminal legal system matter during jury selection? Growing scholarship examines statutory exclusions of people with felony convictions, sometimes characterizing felon-juror exclusion as a collateral consequence of mass incarceration. Less research has considered whether court officials seek to exclude potential jurors based on lower-level forms of contact or perceived association. We draw on interviews with 103 lawyers and judges in a Northeastern state to examine how court officials think about juror bias in relation to criminal legal association beyond felon status. We find that court officials often seek to remove people perceived to be offenders with lower-level forms of system association as well as people perceived to be crime victims. These exclusionary efforts extend to also exclude perceived offenders’ and victims’ social networks. These practices are racialized and gendered, likely contributing to the systematic exclusion of marginalized racial/ethnic groups and women. This article expands the collateral consequences literature in two ways: first, by revealing how collateral consequences can be conceptualized not just in relation to people criminalized by the law but also in relation to those whom the law constructs as victims; and second, by underscoring how collateral consequences feed back into the system to reproduce its unequal administration. 

Hunt, Sophia, Micayla Bozeman, and Matthew Clair. 2022. “Racial disparities in arrests in Santa Clara County, California, 1980-2019." Court Listening Project, Report no. 3

This report examines racial/ethnic disparities in arrests in Santa Clara County, California, from 1980 to 2019. Over the past forty years, felony and misdemeanor arrest rates have declined for all racial groups, but racial disparities have persisted and, in some cases, increased. Black residents, though a small percentage of the population, are disproportionately susceptible to being arrested. In the 2010s, the Black arrest rate was 5.4 times the White arrest rate—the highest Black-White ratio in arrest rates observed over the four decades. Nevertheless, as overall arrest rates declined over this period, the absolute difference between Black and White arrest rates substantially narrowed. Hispanic residents are also disproportionately arrested, but to a lesser degree than Black residents. Racial/ethnic disparities are most pronounced with respect to felony arrests; the Black-White ratio in felony arrest rates peaked at 7.2 in the 1980s and declined to 6.6 in the 2010s. Racial/ethnic disparities also exist, to a lesser degree, with respect to misdemeanor arrests. We find small racial differences in arrest dispositions (or, what law enforcement does with a person following arrest). However, it is noteworthy that, across all four decades, Black and Hispanic felony arrests are slightly more likely than White felony arrests to result in release due to “insufficient grounds to file a complaint.” This pattern could suggest that law enforcement officers are more likely to arrest Black and Hispanic residents for reasons that law enforcement entities later determine do not rise to the level sufficient for filing a complaint with the District Attorney’s Office.

Duarte, Anthony, Sophia Hunt, and Matthew Clair. 2022. “Attorney-client relationships in a criminal court in Santa Clara County, California." Court Listening Project, Report no. 2. 

This report describes—and offers recommendations for improving—the quality of attorney-client relationships in a criminal courthouse in Santa Clara County, California. We draw on in-depth interviews and ethnographic observations collected between July 2021 and June 2022 from the Hall of Justice, one of four state courthouses in Santa Clara County that deals with adult criminal cases. Interviews with a diverse sample of 37 defendants suggest that they hold mostly positive views of their relationships with defense attorneys, though such perceptions vary by type of counsel and income. Moreover, among those who hold positive perceptions of their current defense lawyers, some defendants expressed negative attitudes toward, and recounted negative experiences with, current and previous lawyers. Ethnographic observations of public court proceedings further reveal recurring negative attorney-client relationship attributes, including silencing and sidelining, miscommunication, brevity of interaction, and cooperation with the state (or, coercion). We conclude with several immediate and long-range suggestions for improving the quality of defense provision in the county.

Hunt, Sophia, Claudia Nmai, and Matthew Clair. 2022. “Perceptions of policing among criminal defendants in San Jose, California." Court Listening Project, Report no. 1. 

This report summarizes perceptions of policing among a racially and socio-economically diverse sample of 37 people who faced criminal charges in the Hall of Justice, a courthouse in San Jose, California, between August 2021 and March 2022. A majority of criminal defendants we interviewed reported negative perceptions of personal police treatment, but a considerable minority reported positive perceptions. Among those who reported negative perceptions, two criticisms were common: (1) individual police officers’ violence, abuse, and fabrication of evidence; and (2) systemic policing practices that are overly intrusive and estrange certain disfavored groups in the Bay Area, such as the unhoused. Among those who reported positive perceptions, some believe that, despite their personal experiences of positive treatment, police do not treat everyone fairly and policing quality varies by context and the race of the policed person. Alongside these perceptions, a handful of defendants in the sample offered visions for changing policing. Two notable visions were: (1) reallocating resources from police departments toward other city services or under-resourced groups; and (2) reforming police departments in ways that reduce discrimination and abuse. While we discuss variation along demographic characteristics in our sample, we foreground how the range of experiences and visions of policing in San Jose have implications for policymakers and future research.

Clair, Matthew and Amanda Woog. 2022. “Courts and the Abolition Movement." California Law Review. 

This Article theorizes and reimagines the place of courts in the contemporary struggle for the abolition of racialized punitive systems of legal control and exploitation. In the spring and summer of 2020, the killings of George Floyd, Breonna Taylor, and many other Black and Indigenous people sparked continuous protests against racist police violence and other forms of oppression. Meanwhile, abolitionist organizers and scholars have long critiqued the prison-industrial complex, or the constellation of corporations, media entities, governmental actors, and racist and capitalist ideologies that have driven mass incarceration. But between the police and the prison cell sits the criminal court. Criminal courts are the legal pathway from an arrest to a prison sentence, with myriad systems of control in between, including ones branded as “off-ramps.” We cannot understand the present crisis without understanding how the criminal courts not only function to legitimate police and funnel people into carceral spaces but also contribute their own unique forms of violence, social control, and exploitation. These mechanisms reveal the machinations of mass criminalization and the injustices operating between the police encounter and the prison cell. Our central argument is that courts—with a focus here on criminal trial courts and the group of actors within them—function as an unjust social institution. We should therefore work toward abolishing criminal courts and replacing them with other institutions that do not inherently legitimate police, rely on jails and prisons, or operate as tools of racial and economic oppression.

Drawing on legal scholarship and empirical social scientific research, Part I describes injustices perpetrated by criminal courts, detailing their role in the present crisis of mass criminalization through legal doctrine, racialized social control and violence, and economic exploitation. Part II describes the contemporary abolition movement, briefly laying out its genesis and three guiding principles typically considered in relation to policing and prisons: (1) power shifting, (2) defunding and reinvesting, and (3) transformation. Part III explores how these principles could operate in relation to the courts, drawing on analysis of existing grassroots efforts and offering new possibilities. In the short term, non-reformist reforms could make criminal courts a venue to unmask, and therefore aid in dismantling, police and prisons. Such reforms could complement the broader abolition movement and reduce the churn of people through the criminal legal system. Ultimately, the goal is to abolish criminal courts as sites of coercion, violence, and exploitation and to replace them with other social institutions, such as community-based restorative justice and peacemaking programs, while investing in the robust provision of social, political, and economic resources in marginalized communities.

Clair, Matthew. 2021. “Criminalized Subjectivity: Du Boisian Sociology and Visions for Legal Change." Du Bois Review: Social Science Research on Race.

Over the period of mass criminalization, social scientists have developed rigorous theories concerning the perspectives and struggles of people and communities subject to criminal legal control. While this scholarship has long noted differences across racial groups, it has yet to fully examine how racism and criminalization interrelate in the making of criminalized people’s perspectives and their visions for transforming the legal system. This article engages with Du Boisian sociology to advance a theory of subjectivity that is attuned to the way criminalization reproduces the subjective racial order and that aims to uncover subaltern strategies and visions for transforming the structure of the law and broader society. Through a critical review of interpretive scholarship across the social sciences and an original analysis of interviews with a diverse sample of criminal defendants conducted in the early years of the Black Lives Matter movement, I illustrate how a Du Boisian approach coheres existing theories of criminalized subjectivities, clarifies the place of White supremacy and racism, and provides a theory of legal change rooted in ordinary people’s experiences and needs. I introduce the concept of legal envisioning, defined as a social process whereby criminalized people and communities imagine and build alternative futures within and beyond the current legal system. Du Boisian sociology, I conclude, provides the methodological and theoretical tools necessary to systematically assess legal envisioning’s content and to explain its contradictions, solidarities, and possibilities in overlooked yet potentially emancipatory ways. 

Clair, Matthew. 2021. “Being a disadvantaged defendant: Mistrust and resistance in attorney-client interactions." Social Forces. 

Researchers have documented the power of legal officials to administer sanctions, from arrest to court surveillance and incarceration. How do those subject to punishment interact with officials and attempt to subvert their power? Drawing on interviews and ethnographic observations among 63 criminal defendants and 42 legal officials in the Boston-area court system, this article considers how socioeconomically and racially disadvantaged defendants interact with their defense attorneys, and with what consequences. Given racialized and classed constraints, many disadvantaged defendants mistrust their court-appointed lawyers. Their mistrust often results in withdrawal from their lawyers and active efforts to cultivate their own legal knowledge and skills. Defendants use their lay legal expertise to work around and resist the authority of their lawyers. Defense attorneys and judges respond with silencing and coercion, given the unwritten norms and rules of the court. These findings complicate existing accounts of disadvantaged defendants as passive actors and contribute to cultural sociological and relational theories of how people engage with professionals across institutional spaces. Unlike in mainstream institutions such as schools and hospitals where self-advocacy is rewarded in interactions, criminal court officials reject disadvantaged defendants’ attempts to advocate for themselves.

Clair, Matthew. 2020. Privilege and Punishment: How Race and Class Matter in Criminal Court. Princeton University Press

How the attorney-client relationship favors the privileged in criminal court―and denies justice to the poor and to working-class people of color

The number of Americans arrested, brought to court, and incarcerated has skyrocketed in recent decades. Criminal defendants come from all races and economic walks of life, but they experience punishment in vastly different ways. Privilege and Punishment examines how racial and class inequalities are embedded in the attorney-client relationship, providing a devastating portrait of inequality and injustice within and beyond the criminal courts.

Matthew Clair conducted extensive fieldwork in the Boston court system, attending criminal hearings and interviewing defendants, lawyers, judges, police officers, and probation officers. In this eye-opening book, he uncovers how privilege and inequality play out in criminal court interactions. When disadvantaged defendants try to learn their legal rights and advocate for themselves, lawyers and judges often silence, coerce, and punish them. Privileged defendants, who are more likely to trust their defense attorneys, delegate authority to their lawyers, defer to judges, and are rewarded for their compliance. Clair shows how attempts to exercise legal rights often backfire on the poor and on working-class people of color, and how effective legal representation alone is no guarantee of justice.

Superbly written and powerfully argued, Privilege and Punishment draws needed attention to the injustices that are perpetuated by the attorney-client relationship in today’s criminal courts, and describes the reforms needed to correct them.

Clair, Matthew, and Asad L. Asad. 2019. "Criminal and Immigration Laws Shape Health Outcomes of Racial and Ethnic Minorities." Sociology Policy Briefs

Over the last several decades, criminal and immigration laws in the United States have disproportionately burdened marginalized racial and ethnic minorities such as African Americans and Latinos. This policy brief reviews the sociological and public health research on the health effects of various criminal and immigration laws, policies, and practices. We argue that scholars and policy makers should understand the law as a fundamental cause of health disparities operating through two broad mechanisms: (1) primary effects on those who hold a stigmatized legal status; and (2) spillover effects on racial and ethnic in-group members, regardless of their own legal status. We conclude that the massive expansion of punitive legal control should be treated as a public health crisis. To address this, policy should reduce the material and stigmatic burdens of criminal and immigration statuses on those directly impacted, as well as their legally-unmarked families and communities. 

Olivier, Jasmine, Matthew Clair, and Jeffrey S. Denis. 2019. “Racism”. The Blackwell Encyclopedia of Sociology

The study of racism in sociology entails an examination of the social construction of “racial” groups and racial inequalities. Defined as an ideology of racial group superiority that justifies or prescribes a system of racial domination or exploitation, racism is perpetuated by the beliefs and behaviors of individuals and by the institutions in which they are embedded. In the post-civil rights period, many scholars have focused on the shift from overt to subtle forms of racism and white privilege. In today’s sociopolitical climate, however, scholars have increasingly documented a return of overt racism and white supremacist movements, providing more evidence against the notion of a postracial society. A thorough analysis of racism requires an examination of both subtle forms of racism and the resurgence of overt racism and its consequences for inequality. 

Clair, Matthew. 2018. “Stigma”. Core Concepts in Sociology

Stigma is an attribute that conveys devalued stereotypes. Following Erving Goffman’s early elaboration of the concept, psychological and social psychological research has considered how stigma operates at the micro-level, restricting the well-being of stigmatized individuals. More recently, sociologists have considered the macro-level dimensions of stigma, illuminating its structural causes, population-level consequences, and collective responses. This research has identified how stigma reproduces social inequality through the maintenance of group hierarchies. Future research should bridge levels of analysis, compare the micro- and macro-level causes and consequences of stigma among different social groups, and identify the conditions that foster destigmatization. 

Asad, Asad L., and Matthew Clair. 2018. “Racialized legal status as a social determinant of health”. Social Science & Medicine 199:19-28. 

This article advances the concept of racialized legal status (RLS) as an overlooked dimension of social stratification with implications for racial/ethnic health disparities. We define RLS as a social position based on an ostensibly race-neutral legal classification that disproportionately impacts racial/ethnic minorities. To illustrate the implications of RLS for health and health disparities in the United States, we spotlight existing research on two cases: criminal status and immigration status. We offer a conceptual framework that outlines how RLS shapes disparities through (1) primary effects on those who hold a legal status and (2) spillover effects on racial/ethnic in-group members, regardless of these individuals’ own legal status. Primary effects of RLS operate by marking an individual for material and symbolic exclusion. Spillover effects result from the vicarious experiences of those with social proximity to marked individuals, as well as the discredited meanings that RLS constructs around racial/ethnic group members. We conclude by suggesting multiple avenues for future research that considers RLS as a mechanism of social inequality with fundamental effects on health. 

Winter, Alix S., and Matthew Clair. 2018. “Jurors' Subjective Experiences of Deliberations in Criminal Cases”. Law & Social Inquiry 43 (4):1458-1490.  

Research on jury deliberations has largely focused on the implications of deliberations for criminal defendants' outcomes. In contrast, this article considers jurors' outcomes by integrating subjective experience into the study of deliberations. We examine whether jurors' feelings that they had enough time to express themselves vary by jurors' gender, race, or education. Drawing on status characteristics theory and a survey of more than 3,000 real-world jurors, we find that the majority of jurors feel that they had enough time to express themselves. However, blacks and Hispanics, and especially blacks and Hispanics with less education, are less likely to feel so. Jurors' verdict preferences do not account for these findings. Our findings have implications for status characteristics theory and for legal cynicism among members of lower-status social groups. 

Clair, Matthew, and Alix S. Winter. 2017. "How Judges Can Reduce Racial Disparities in the Criminal Justice System." American Judges Association

Although most judges in our sample exhibit well-intentioned judging, the overwhelming use of noninterventionist strategies by these judges (Tables 1 and 2) likely contributes to racial disparities. Most judges in our sample found it appropriate to account for only their own possible differential treatment of criminal defendants (noninterventionist) and not that of other actors nor the disparate implications of poverty and racial inequality before contact with the criminal-justice system (interventionist). By deferring to other actors in the system, judges who employ noninterventionist strategies may unintentionally allow for the reproduction of racial disparities that emanate at earlier stages of the criminal-justice process, such as through the actions and possible biases of the police, prosecutors, and defense attorneys, as well as through the social adversities faced by many black and Latino criminal defendants. However, by employing interventionist strategies, a small number of judges more actively work to combat disparity-producing legal practices, policies, and decisions. 

Clair, Matthew, Caitlin Daniel, and Michèle Lamont. 2016. “Destigmatization and health: Cultural constructions and the long-term reduction of stigma”. Social Science & Medicine 165: 223–232. 

Research on the societal-level causes and consequences of stigma has rarely considered the social conditions that account for destigmatization, the process by which a group’s worth and status improve. Destigmatization has important implications for the health of stigmatized groups. Building on a robust line of stigma reduction literature in psychology, we develop a sociological framework for understanding how new cultural constructions that draw equivalences and remove blame shape public and structural stigma over time. We examine historical transformations of cultural constructions surrounding three stigmatized groups in the United States: people living with HIV/AIDS, African Americans, and people labeled as obese. By tracing this process across cases, we find that the conditions that account for destigmatization include the credibility of new constructions, the status and visibility of actors carrying these constructions, the conclusiveness of expert knowledge about stigmatized groups, the interaction between new constructions and existing cultural ideologies, and the perceived linked fate of the stigmatized and dominant groups. We also find that the reduction of structural and public forms of stigma often depend on distinct processes and constructions. To conclude, we propose a framework for the comparative study of destigmatization as an essential component of promoting a culture of health. 

Clair, Matthew, and Alix S. Winter. 2016. “How Judges Think about Racial Disparities: Situational Decision-Making in the Criminal Justice System”. Criminology 54 (2):332–359. 

Researchers have theorized how judges’ decision-making may result in the disproportionate presence of blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing. Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas fewer judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment, as well as the disparate impact of poverty and facially neutral laws. We reveal how the use of noninterventionist strategies by most judges unintentionally reproduces disparities. Through our examination of judges’ understandings of racial disparities throughout the court process, we enhance understandings of American racial inequality and theorize a situational approach to decision-making in organizational contexts.  

Clair, Matthew, and Jeffrey S. Denis. 2015. “Sociology of Racism” edited by James D. Wright. The International Encyclopedia of the Social and Behavioral Sciences 19:857-863.

The sociology of racism is the study of the relationship between racism, racial discrimination, and racial inequality. While past scholarship emphasized overtly racist attitudes and policies, contemporary sociology considers racism as individual- and group-level processes and structures that are implicated in the reproduction of racial inequality in diffuse and often subtle ways. Although some social scientists decry this conceptual broadening, most agree that a multivalent approach to the study of racism is at once socially important and analytically useful for understanding the persistence of racial inequality in a purportedly “post-racial” society.   

Lamont, Michele, Stefan Beljean, and Matthew Clair. 2014. “What is Missing? Cultural Processes and Causal Pathways to Inequality”. Socio-Economic Review 12 (3):573-608. 

This paper provides a framework for understanding the ways in which social processes produce social inequality. Specifically, we focus on a particular type of social process that has received limited attention in the literature and in which inter-subjective meaning-making is central: cultural processes. Much of the literature on inequality has focused on the actions of dominant actors and institutions in gaining access to material and non-material resources, or on how ecological effects cause unequal access to material resources. In contrast, we focus on processes that contribute to the production (and reproduction) of inequality through the routine and taken-for-granted actions of both dominant and subordinate actors. We highlight two types of cultural processes: identification and rationalization. We describe and illustrate four processes that we consider to be significant analytical exemplars of these two types of cultural processes: racialization and stigmatization (for identification) and standardization and evaluation (for rationalization). We argue that attention to such cultural processes is critical and complementary to current explanations of social inequality.