The Unfulfilled Promise of the Public Defender

Despite a century of progress, the poor still don’t get a fair day in court.

In 1963, the Supreme Court issued a blockbuster decision: The Sixth Amendment’s right to counsel meant that poor people accused of a serious crime must be provided a lawyer at state expense. But that ruling, Gideon v. Wainwright, has not transformed our criminal justice system in the way that some might have hoped. Almost 60 years later, the right has been extended to juvenile and misdemeanor proceedings, and public defense systems across the United States vary greatly in quality and structure. Some jurisdictions have established public defender offices, while others engage private counsel. Most, if not all, struggle with underfunding and excessive caseloads, which make it difficult to provide adequate representation to clients.

Free Justice: A History
of the Public Defender in Twentieth-Century America
by Sara Mayeux
University of North Carolina Press,
280 pp.

But long before Gideon, Clara Foltz, a rare woman practicing law in the late 19th century, barnstormed around the country in favor of a public defender service. Foltz, who had done some criminal defense work in California, advocated for a salaried cohort of attorneys who could represent criminal defendants. In many places, poor defendants had to hire their own lawyer or go unrepresented. Some other localities had adopted an “assigned counsel” approach, with judges choosing local lawyers—often unpaid—to assist low-income people charged with a crime. But Foltz believed that approach was inadequate. Few highly paid lawyers would take such cases, leaving the work to those who had few clients because they were unskilled (or even incompetent), or those like Foltz, who had limited options due to bias against women. The representation was often less than zealous, and possibly even detrimental. If the lawyer was actually trying to do a good job, they were paid meagerly or not at all. 

Foltz, touting her experience in California, which, unlike most other states, had already adopted a government-funded public defender service in certain cities, went on the road to try to sell the idea to a broader American audience. She had little luck. The New York Times disparaged Foltz’s proposal, calling it the “strange project” of a “female attorney.” But over the next 40 years, Foltz’s project was taken up by others more successfully. The idea began to take root that those accused of a crime should not be left to defend themselves in the courtroom if they could not afford a lawyer. 

In Free Justice, an engaging history of the public defender in the United States, Sara Mayeux, a legal historian at Vanderbilt University, uses the development of the government-funded criminal defense attorney system to examine larger questions in American history, including the hypocrisies and tensions in the legal profession itself about what constitutes “equal justice under law.” Starting at the end of the 19th century, Mayeux locates the debate over whether and how the poor should get a defense counsel in the context of the conflicted identity of elite lawyers in America. Members of the private bar struggled both with the idea of government-provided lawyers and with their duty to serve the interests of justice. Ultimately, the mainstream of the legal profession came to support “the public defender as a quintessentially American institution,” Mayeux writes, but getting to that point took decades. And, she argues, even as the bar accepted indigent defense provided by the state, the mainstream of the legal profession never organized itself to ensure that poor people truly had the right to effective representation. Free Justice examines how the legal profession wrestled with indigent defense by examining how such representation evolved in different communities—such as Boston, Philadelphia, and Mississippi—with quite different results.

At the turn of the 20th century, the legal profession approached the criminal justice system from two main perspectives. Reformers believed that, like other areas of society, the legal profession should be modernized and incorporated into a stronger benevolent state. Over the course of the 18th and 19th centuries, the government had gradually assimilated much of the formerly private justice system, taking over the roles of setting policy, employing prosecutors, and running prisons and jails. For the reformers of this era, a state service of public defenders was an essential element of the new justice system. While some of this reform zeal grew out of concern for poor defendants, much of the interest was anchored in the progressive vision for a more efficient state. Lawyers for the government, grouped as prosecutors and defenders, could collaborate and would be better equipped to find out whether a defendant had in fact committed a crime than they would be in an adversarial process. These reformers believed that lawyers employed by the government would be concerned with finding the truth, rather than winning the case, and would share information to do so. 

Other lawyers saw it differently. The legal profession in the United States had been molded in the traditions of English common law as opposed to European civil law, where much of the justice system was handled by government employees. In the American mainstream view, private lawyers representing clients in an adversarial courtroom process were viewed as best able to defend their clients’ interests. The needs of indigent defendants, these lawyers believed, could be handled through charity or voluntary work instead of through a government service. Indeed, they asked, how could a lawyer provide zealous advocacy when the client was being prosecuted by the very same entity paying the defense counsel’s salary? Not only would representation suffer, they argued, but such a cadre of government lawyers smacked of socialism. The American Bar Association, founded in 1878, embodied the view of the lawyer as the independent professional and rejected calls to establish publicly provided legal aid. 

While some of this zeal for reform in the early 20th century grew out of concern for poor defendants, much of the interest was anchored in the progressive vision for a more efficient state.

While voluntary defenders—a mix of full-time lawyers paid by philanthropists, and lawyers working pro bono—became more prevalent in large East Coast cities, there was little progress in setting up a system of paid lawyers to serve indigent clients through the first half of the 20th century, according to Mayeux. Even as the size and reach of the federal and state governments grew, the legal profession remained committed to a system of private, pro bono representation. This meant that most people accused of a crime would have to hire their own lawyer no matter how poor they were—and if they could not, they would have to represent themselves. This is the model embodied most famously by To Kill a Mockingbird’s Atticus Finch, the lawyer who takes on the defense of an African American man, Tom Robinson, who is falsely accused of raping a white woman. Robinson pays Finch in vegetables. Despite the heroic defense, Robinson is found guilty and subsequently shot to death.

Both the advent of the Cold War and the rise of the civil rights movement began to shake the confidence of elite lawyers that high-minded volunteerism alone would meet the needs of criminal defendants, especially after the Supreme Court started to flesh out the contours of the Sixth Amendment’s right to counsel. With activists bringing attention to the systemic racism in the American justice system and the series of Supreme Court cases culminating in Gideon, even the staid legal profession could no longer claim that the current system was reaching just results. Voluntary defenders were dependent on charity to fund their work; if the funds were not available, a defendant would have to face a trial alone.

In addition, Mayeux argues, the anticommunist fervor of the post–World War II era helped precipitate a changed view of the publicly provided defender:

Once a socialist harbinger, the public defender was now reimagined as an anticommunist weapon, a means of demonstrating American law’s special regard for the rights of the individual. The public defender was now advanced not as a reform of the legal profession but as a mechanism for vindicating the defendant’s constitutional rights, including the right to counsel eventually enshrined in Gideon.

The Cold War transformed the public defender in the eyes of elite lawyers from a socialist idea to a beacon of capitalism, showing the world that in the United States no poor person could be convicted without a lawyer. The contrast to Josef Stalin’s show trials further demonstrated the superiority of the American system. 

Mayeux makes clear, however, that simply recognizing that the poor have a right to counsel and that the government should pay for it did not result in broad access to effective representation. Although Gideon was met with acclaim, there was no major stocktaking by the legal profession—or society at large—about how to build and fund a system of indigent defense. The legal profession itself had never regarded the task of representing accused poor people as high status, and even after Gideon, lawyers who did that work didn’t see an increase in resources or salaries. Without a real reckoning of how the profession should be organized to serve poor clients, Mayeux argues, public defender funding was always vulnerable to the political winds, and public defenders were poorly paid even when the office was funded. Relying on the mythology of the heroic defender, a la Atticus Finch, the bar never addressed the grave shortcomings in how most poor criminal defendants were represented.

The Cold War transformed the public defender in the eyes of elite lawyers from a socialist idea to a beacon of capitalism, showing the world that in the U.S. no poor person could be convicted without a lawyer.

After Gideon, jurisdictions began to provide counsel, but there continued to be wide variation in how this manifested in courtrooms around the country. Some adhered to the system of appointed counsel, with shockingly uneven results, while others established a public defender’s office staffed by government lawyers. But even as more of the accused began to appear in court with a lawyer, many provided with the financial support of philanthropists, critics began to describe the gulf between the promise of that case and the reality of criminal defense in local courthouses. This critique became increasingly pointed as Richard Nixon and other elected leaders sought to be “tough on crime,” with a disproportionate impact on minority communities. Public defenders were overworked, underfunded, and, particularly in the South, met with a hostile judiciary that went out of its way to rule against their clients. For these judges, providing a free lawyer to an accused criminal, often an African American, was both an affront to white supremacy and a symbol of the heavy hand of the federal government they disliked so much.

Mayeux’s focus is on the history of public defenders, not on policy or solutions to the pernicious problems of criminal justice. That is both a strength and a weakness. She provides an invaluable tool for understanding why we still have such a weak system of criminal defense, by explaining the unresolved tension in the legal community over its identity and the role of private versus public counsel. By connecting this story to broader themes of a modernizing nation—the backdrop of race, class, and international tensions—Mayeux allows the reader to see how the public defender saga is of a piece with much of 20th-century history. Moreover, she does not omit discussion of the major reforms advocates continue to push for. Most importantly, she writes, there simply needs to be more spent on defenders so they can handle the enormous volume of cases without compromising the rights of each client. She notes that a lack of clarity about which level of government is responsible for funding this critical service has undermined real reform. But without a discussion of other actors—politicians, civil rights leaders and activists, religious organizations—the reader does not get a full picture of all the players involved in fighting for expansion of indigent defense. While her stated goal is to explain the evolution of elite legal opinion, Mayeux would have helped that project had she addressed the outside forces that spurred those changing views.

For some readers, Mayeux’s decision not to examine history past the early 1990s, nor to include any discussion of the policies or litigation strategies that have emerged since then, may also limit the value of this book. How has the Black Lives Matter movement and the understanding that racism is the driving force behind over-incarceration affected the debate around public defender services? Mayeux writes,

Historians have only now begun to piece together the complex dynamics, at the intersection of law, politics, policymaking, and social change, that produced this new degree of police targeting beginning in the 1960s, especially in poor urban neighborhoods, and would ultimately generate the phenomenon of mass incarceration.

While she rightfully recognizes the role of systemic racial injustice in contributing to the failure to fulfill the promise of Gideon, Mayeux will leave some readers hungering for more on recent developments. As a historian, she could have illuminated how these dynamics have affected and transformed the public defender role today.

Nonetheless, Free Justice gives us some additional material to consider as we think about the state of our criminal justice system. Mayeux effectively demonstrates how little has really changed in the legal profession in terms of resolving its identity crisis over the provision of government lawyers. Just as elite lawyers decried the “crisis” in indigent defense at various points in the 19th and 20th centuries, former Attorney General Eric Holder echoed this language in a speech in 2010 promising Justice Department assistance for “the defense that poor people receive in state and local courts.” As Mayeux puts it, “The permanent crisis permanesces.” More pointedly, she argues that the legal profession must engage in a “broader conversation, not about how to carve out pockets of equality in the criminal courts, but about law’s role in structuring inequality to begin with.”  

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Caroline Fredrickson

Caroline Fredrickson is the former president of the American Constitution Center and the author of Under The Bus: How Working Women Are Being Run Over and The Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections.