Free Justice: A History of the Public Defender in Twentieth Century America, a new book by legal historian Sara Mayeux, chronicles debates about public defenders from the establishment of the first public defender’s office in Los Angeles County in 1914 through the 1970s, when public defender’s offices existed throughout the nation.
Mayeux’s book shows how the idea of a public defender’s office—a government agency that provides lawyers for indigent criminal defendants—has a surprisingly contentious history. “Within the legal profession, the standard story you often hear is that lawyers are very committed to the right to counsel for indigent criminal defendants, and the reason defendants often don’t have access to effective counsel is because politicians and voters don’t understand this right and don’t provide adequate funding for public defenders,” Mayeux said. “But historically, the legal profession itself was internally divided for a long time about how to provide counsel for criminal defendants. Those divides within the profession helped to create the conditions of inequitable funding that we still see today in the criminal courts.”
In the early twentieth century, lawyers immersed in a culture of private law practice were often ambivalent about public funding for criminal defense or setting up government-operated defenders’ offices. Mayeux found that lawyers had become more open to public funding for indigent defense by the time the constitutional right to legal counsel for any citizen charged with a crime was confirmed by the 1963 Supreme Court ruling in Gideon v. Wainwright. However, most still saw private practice as the default model of legal representation. “The legal profession has been very good at giving lip service to the ideals of criminal legal representation for indigent clients, but not always so successful at putting those ideals into action,” she said.
Free Justice traces the development of public defender reform proposals from the 1910s and 1920s, when several California counties established the nation’s first public defender’s offices. But in other parts of the country, particularly on the East Coast, elite corporate lawyers believed strongly that the legal profession should remain independent from the government. Rather than new government offices, they sought to establish private organizations, sometimes known as “voluntary defenders,” in hopes of providing lawyers for indigent criminal defendants without depending on public funding.
That approach proved unsustainable. “By the 1960s, when the Court’s decision in Gideon v. Wainwright required all states to provide legal counsel to indigent clients, most lawyers had shifted towards embracing public funding for indigent defense—at least in theory,” Mayeux said. “But actually securing public funding quickly became challenging, and the legal profession continued to rely on private philanthropy to support its reform endeavors.”
This complex history resulted in an uneven patchwork of funding sources and institutional arrangements for indigent defense, a pattern that has persisted to the present day. “When I was in law school, I heard a lot about the indigent defense crisis, and you still hear about it today,” she said. “The word ‘crisis’ implies a problem that has suddenly become acute and needs an urgent fix. But what I found was that the language of ‘crisis’ has been a permanent feature of discussions of indigent defense ever since Gideon enshrined the constitutional right to counsel.”
Mayeux’s book reveals that the nationwide “crisis” of underfunded public defenders providing inadequate representation due to heavy caseloads and limited resources has existed throughout the history of public defense “We need to have a deep conversation about what criminal courts are supposed to do and whether equal justice would require structural changes to the legal profession itself,” she said. “But, historically, there hasn’t been a lot of interest in having that conversation.”
Free Justice was released by the University of North Carolina Press in June.