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Justice, Power, and Politics
Free Justice: A History of the Public Defender in Twentieth-Century America
Every day, in courtrooms around the United States, thousands of criminal defendants are represented by public defenders--lawyers provided by the government for those who cannot afford private counsel. Though often taken for granted, the modern American public defender is a recent invention with a surprisingly contentious history--one that offers insights not only about the "carceral state," but also about the contours and compromises of twentieth-century liberalism.
First gaining appeal amidst the Progressive Era fervor for court reform, the public defender idea was swiftly quashed by elite corporate lawyers who believed the legal profession should remain independent from the state. Public defenders took hold in some localities but not yet as a nationwide standard. By the 1960s, views had shifted. Gideon v. Wainwright enshrined the right to counsel into law and the legal profession mobilized to expand the ranks of public defenders nationwide. Yet within a few years, lawyers had already diagnosed a "crisis" of underfunded, overworked defenders providing inadequate representation--a crisis that persists today. This book shows how these conditions, often attributed to recent fiscal emergencies, have deep roots, and chronicles the intertwined histories of constitutional doctrine, big philanthropy, professional in-fighting, and Cold War culture that made public defenders ubiquitous but embattled figures in American courtrooms.
First gaining appeal amidst the Progressive Era fervor for court reform, the public defender idea was swiftly quashed by elite corporate lawyers who believed the legal profession should remain independent from the state. Public defenders took hold in some localities but not yet as a nationwide standard. By the 1960s, views had shifted. Gideon v. Wainwright enshrined the right to counsel into law and the legal profession mobilized to expand the ranks of public defenders nationwide. Yet within a few years, lawyers had already diagnosed a "crisis" of underfunded, overworked defenders providing inadequate representation--a crisis that persists today. This book shows how these conditions, often attributed to recent fiscal emergencies, have deep roots, and chronicles the intertwined histories of constitutional doctrine, big philanthropy, professional in-fighting, and Cold War culture that made public defenders ubiquitous but embattled figures in American courtrooms.
296 pages, Hardcover
First published June 22, 2020
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Displaying 1 - 9 of 9 reviews
September 8, 2023
3.5 stars—starts out super strong but ultimately gets repetitive and could be so much more interesting & critical
January 26, 2022
This is a really good work of historical scholarship. Sara Mayeux constructs a fluid account that engages the reader in the broader questions implicated in the history of public defense in the U.S. These questions spin out of the contested meanings of "public" in a liberal democracy -- and particularly in a state institution (the court system) that is supposedly not "political." Mayeux traces the shift in dominant discourse about criminal defense from the pre-World War II notion that having government-funded defense lawyers face off against government prosecutors would be a farce just a few steps away from Stalinist show trials(!) to the Cold War-era idea that guaranteeing every criminal defendant's right to counsel was the pinnacle of U.S. constitutional democracy in practice. She also probes the discursive construction of public defense as being in a chronic state of crisis that turns attorneys into plea-deal brokers. The potential of public defense, she points out, has constantly been constrained by the idea that it is supposed to strive for the ideal of the imagined private defense lawyer who will give all of their time and resources to a case -- when in reality many private defense lawyers also work by plea deals. How, Mayeux asks, has this gold standard that public defenders can never live up to prevented society from envisioning an altogether different role for public defenders? Public defense departments practicing the "holistic defense" paradigm, which is supposed to attend to the total well-being of clients, would probably argue that that's what they're doing, but, Mayeux remarks critically, that paradigm amounts to the same thing as police departments taking on social work when we could just fund social work.
A key strand in the book is Mayeux's exploration of how public defense was funded after Gideon v. Wainwright, the 1963 Supreme Court case that decided that every person facing criminal charges had a right to counsel, no matter their ability to pay. This wasn't a mandate per se to establish public defender offices, but there somehow needed to be a way to pay for lawyers for every defendant who wanted one. Big Philanthropy, mostly the Ford Foundation, stepped in with funding, raising the question: What was more transparent and less "political" -- a private foundation overseeing public defense, or elected officials with overt agendas doing so? This strongly connects to a gripe I have about working at a county public defender's office, but I'll find somewhere else to rant about that.
I guess I would have liked for Mayeux to argue explicitly that the alleged lack of funding for public defense is a matter of framing, since criminal defense is the last step on the path to social abandonment (via the carceral system) and the funding should come way before that. She only hints at this point in a couple of places. Regardless, Free Justice is a really good book for what it sets out to do.
A key strand in the book is Mayeux's exploration of how public defense was funded after Gideon v. Wainwright, the 1963 Supreme Court case that decided that every person facing criminal charges had a right to counsel, no matter their ability to pay. This wasn't a mandate per se to establish public defender offices, but there somehow needed to be a way to pay for lawyers for every defendant who wanted one. Big Philanthropy, mostly the Ford Foundation, stepped in with funding, raising the question: What was more transparent and less "political" -- a private foundation overseeing public defense, or elected officials with overt agendas doing so? This strongly connects to a gripe I have about working at a county public defender's office, but I'll find somewhere else to rant about that.
I guess I would have liked for Mayeux to argue explicitly that the alleged lack of funding for public defense is a matter of framing, since criminal defense is the last step on the path to social abandonment (via the carceral system) and the funding should come way before that. She only hints at this point in a couple of places. Regardless, Free Justice is a really good book for what it sets out to do.
November 17, 2022
Mandatory reading for anyone interested in the establishment and development of the public defender system. It helps that the writing is crisp and efficient.
There's a conundrum at the heart of the system: a governmental authority (state, federal, even administrative agency) seeks criminal conviction or carceral sanction yet the government also provides counsel to defeat or ameliorate the government-sought sanction. As this history implicitly shows, the rationale underlying this puzzle shifts with the zeitgeist of the given era. Shifting rationales aside, the delivery of representation at public expense is now firmly rooted, despite being a relatively recent innovation.
The Michigan Law Review Online has a couple of takes on the book that the interested reader might want to consult, along with an Introduction that summarizes the book in some detail; they may be found here: https://michiganlawreview.org/journal....
There's a conundrum at the heart of the system: a governmental authority (state, federal, even administrative agency) seeks criminal conviction or carceral sanction yet the government also provides counsel to defeat or ameliorate the government-sought sanction. As this history implicitly shows, the rationale underlying this puzzle shifts with the zeitgeist of the given era. Shifting rationales aside, the delivery of representation at public expense is now firmly rooted, despite being a relatively recent innovation.
The Michigan Law Review Online has a couple of takes on the book that the interested reader might want to consult, along with an Introduction that summarizes the book in some detail; they may be found here: https://michiganlawreview.org/journal....
September 14, 2021
I was originally drawn to this book because of the nominal subject, which is the history of the public-defender system in America. I am immersed in this subject because of a book that I'm writing about a killing.
However, this book isn't just about court-appointed lawyers. It covers the larger issues, as well. It is about, for example, the shift in thinking about the role of government in helping the poor, from 1900, when the legal profession thought that public defenders were a Bolshevik plot; to the 1920s, when lawyers feared that the Russian Revolution would be imported; to 1938, when the federal government mandated public defenders to ensure that justice would be done, and states once again cried socialism; to 1963, when the entire legal profession had agreed that public defenders were necessary for justice and the Supreme Court made it the law of the land.
This book is also about the many thin slices of this subject. For example, one way in which opponents of this movement were defeated is through the Cold War battle of ideas. If America was so superior to Russia, why were there so many trials in which the defendant did not even have legal representation and so many judicial norms were flouted? If America was superior, she had to prove it, and increasingly, the public-defender mandate was the way to do that. Another example is the way in which the FDR administration beat the drums on civil rights, actually selling the idea that the first ten amendments to the Constitution were "the Bill of Rights," and accordingly, they also beat the drum on a second Bill of Rights, which included a public-defender mandate, which was established for federal courts in 1938.
At the turn of the century, the legal profession took the stand that the adversarial system should prevail even in the obtaining of an attorney; that is, if you can't afford an attorney, you obviously don't deserve an attorney, morally speaking. That is the harsh history of Republican logic on the free market. By the 1920s and '30s, the major Eastern cities were depending on pro bono work to take up the slack, but that ran into serious problems, as well, because lawyers need to be paid, too, in order to keep their attention focused. Mayeux explains the opposition beautifully:
"...Public defenders remained sparse into the 1950s precisely because many lawyers worried that publicly funded legal assistance threatened the American way of life, which they defined to require free markets, independent professions, and a limited role for government. They regarded the public defender not as a safeguard for individual rights, but as a socialist-style project of co-opting lawyers into a centralized government program. When his peers on Wall Street tried to envision the public defender, Tweed explained ruefully, what appeared in their minds instead was the 'hobgoblin' of 'communism and...the socialization of the legal profession.'"
However, the legal profession had a horrible reputation, and rightly so. Lawyers with only one thing on their minds--money, and how to squeeze it out of defendants with the least expenditure of time--and the public was noticing. Horror stories abounded, the 1920s version of Michael Avenatti and Sidney Powell. The legendary black singer Leadbelly was a victim of unscrupulous lawyers after he killed a man and his parents had to sell their farm to pay for the lawyers that would defend him poorly and without enthusiasm. The voluntary organizations were an attempt to scrub their reputation, but it couldn't do the job well. By the 1950s, the profession had come around to the general opinion that a public defender was needed, and the Supreme Court simply made it official in 1963.
I was specifically interested in what the law was in Los Angeles, and was happy to hear that their system was in place by 1915, well before New York, Boston, and Philadelphia. The reasons, as this book makes clear, is because the legal apparatus in Los Angeles and other cities in the West (including Chicago) were not set in stone with the weight of two centuries' permanence. So many things arose because of that dynamic, as I've gleaned from my other readings. The mob and gangsterism wasn't quite as serious in Los Angeles, for example. If you look around Los Angeles, you will see fewer historic buildings and straighter streets. History explains so much.
When I was not even halfway through with the ebook, Goodreads told me that I'd already highlighted 94 passages and made 10 notes. One of the most amazing passages in the book pulls back to view the global perspective, explaining how the government was starting to change society at the turn of the century, and is a succinct defense for libertarian claptrap:
"The government now sought to regulate the wages of factory workers and to keep small children in school all day; new types of public officials managed streetcar lines and promoted smallpox vaccinations and lifted birthdates out of family Bibles into the ledger-lines of official registers. Skipping past the old anxieties about defining the proper limits on government, the most enthusiastic reinventors of municipal governance wondered what (if anything) government shouldn't do. Cities now sold water 'to ensure the adequacy and purity that private water companies failed to maintain,' and designed parks and installed streetlights to promote health an d safety, and opened schools 'to protect against popular ignorance.'"
These battles are still going on today. The Republican Party stands against limitations on smoking indoors, and the voters override them. The Republican Party pronounces that taxes are theft, and they unfortunately have great success. The Republican Party stands against mask and vaccine mandates, and 75% of voters disagree with them. But these limitations improve society, and help all of us. Mandatory education. Birth registration. Public-safety agencies. Municipal water regulation. Streetlights. Parks. They are what makes America great--not again, but now and in our past.
The last chapter brought me up to date on the public-defender system. The Reagan-era Supreme Court didn't roll back Gideon, but it did constrict it by putting very few standards on lawyers' conduct. Today, a lawyer can be quite incompetent in representing a defendant, and still, the verdict won't be overturned because of lack of representation. Mayeux also goes into the great detail about the difficulty of going from zero to 60 with the public-defender system. Imagine a country in which only a quarter of the indigent accused lived in an area where they were entitled to a defender, and suddenly, within ten years, two-thirds felt compelled to have an organized public-defender system. Lawyers suddenly had lots of work, although it was often with low pay and massive caseloads.
"Before Gideon, the typical defender organization...might handle several hundred or at most, a few thousand cases per year," Mayeux writes. "By the late 1960s, large urban defender offices' caseloads had spiraled into the tens of thousands."
Mayeux goes into excruciating detail about these and other modern problems. Even today, we are far from an ideal situation.
As regards the prose, this book is a dream to read. Sara Mayeux knows how to write a straight, simple sentence, and everything else that surrounds that is elegant and subtle. How can an author write about something so complex and yet make it so clear and beautiful? Every time I picked up this book, I looked forward to reading it. I am not a lawyer, and yet I feel educated on this subject. Every book should read like this.
However, this book isn't just about court-appointed lawyers. It covers the larger issues, as well. It is about, for example, the shift in thinking about the role of government in helping the poor, from 1900, when the legal profession thought that public defenders were a Bolshevik plot; to the 1920s, when lawyers feared that the Russian Revolution would be imported; to 1938, when the federal government mandated public defenders to ensure that justice would be done, and states once again cried socialism; to 1963, when the entire legal profession had agreed that public defenders were necessary for justice and the Supreme Court made it the law of the land.
This book is also about the many thin slices of this subject. For example, one way in which opponents of this movement were defeated is through the Cold War battle of ideas. If America was so superior to Russia, why were there so many trials in which the defendant did not even have legal representation and so many judicial norms were flouted? If America was superior, she had to prove it, and increasingly, the public-defender mandate was the way to do that. Another example is the way in which the FDR administration beat the drums on civil rights, actually selling the idea that the first ten amendments to the Constitution were "the Bill of Rights," and accordingly, they also beat the drum on a second Bill of Rights, which included a public-defender mandate, which was established for federal courts in 1938.
At the turn of the century, the legal profession took the stand that the adversarial system should prevail even in the obtaining of an attorney; that is, if you can't afford an attorney, you obviously don't deserve an attorney, morally speaking. That is the harsh history of Republican logic on the free market. By the 1920s and '30s, the major Eastern cities were depending on pro bono work to take up the slack, but that ran into serious problems, as well, because lawyers need to be paid, too, in order to keep their attention focused. Mayeux explains the opposition beautifully:
"...Public defenders remained sparse into the 1950s precisely because many lawyers worried that publicly funded legal assistance threatened the American way of life, which they defined to require free markets, independent professions, and a limited role for government. They regarded the public defender not as a safeguard for individual rights, but as a socialist-style project of co-opting lawyers into a centralized government program. When his peers on Wall Street tried to envision the public defender, Tweed explained ruefully, what appeared in their minds instead was the 'hobgoblin' of 'communism and...the socialization of the legal profession.'"
However, the legal profession had a horrible reputation, and rightly so. Lawyers with only one thing on their minds--money, and how to squeeze it out of defendants with the least expenditure of time--and the public was noticing. Horror stories abounded, the 1920s version of Michael Avenatti and Sidney Powell. The legendary black singer Leadbelly was a victim of unscrupulous lawyers after he killed a man and his parents had to sell their farm to pay for the lawyers that would defend him poorly and without enthusiasm. The voluntary organizations were an attempt to scrub their reputation, but it couldn't do the job well. By the 1950s, the profession had come around to the general opinion that a public defender was needed, and the Supreme Court simply made it official in 1963.
I was specifically interested in what the law was in Los Angeles, and was happy to hear that their system was in place by 1915, well before New York, Boston, and Philadelphia. The reasons, as this book makes clear, is because the legal apparatus in Los Angeles and other cities in the West (including Chicago) were not set in stone with the weight of two centuries' permanence. So many things arose because of that dynamic, as I've gleaned from my other readings. The mob and gangsterism wasn't quite as serious in Los Angeles, for example. If you look around Los Angeles, you will see fewer historic buildings and straighter streets. History explains so much.
When I was not even halfway through with the ebook, Goodreads told me that I'd already highlighted 94 passages and made 10 notes. One of the most amazing passages in the book pulls back to view the global perspective, explaining how the government was starting to change society at the turn of the century, and is a succinct defense for libertarian claptrap:
"The government now sought to regulate the wages of factory workers and to keep small children in school all day; new types of public officials managed streetcar lines and promoted smallpox vaccinations and lifted birthdates out of family Bibles into the ledger-lines of official registers. Skipping past the old anxieties about defining the proper limits on government, the most enthusiastic reinventors of municipal governance wondered what (if anything) government shouldn't do. Cities now sold water 'to ensure the adequacy and purity that private water companies failed to maintain,' and designed parks and installed streetlights to promote health an d safety, and opened schools 'to protect against popular ignorance.'"
These battles are still going on today. The Republican Party stands against limitations on smoking indoors, and the voters override them. The Republican Party pronounces that taxes are theft, and they unfortunately have great success. The Republican Party stands against mask and vaccine mandates, and 75% of voters disagree with them. But these limitations improve society, and help all of us. Mandatory education. Birth registration. Public-safety agencies. Municipal water regulation. Streetlights. Parks. They are what makes America great--not again, but now and in our past.
The last chapter brought me up to date on the public-defender system. The Reagan-era Supreme Court didn't roll back Gideon, but it did constrict it by putting very few standards on lawyers' conduct. Today, a lawyer can be quite incompetent in representing a defendant, and still, the verdict won't be overturned because of lack of representation. Mayeux also goes into the great detail about the difficulty of going from zero to 60 with the public-defender system. Imagine a country in which only a quarter of the indigent accused lived in an area where they were entitled to a defender, and suddenly, within ten years, two-thirds felt compelled to have an organized public-defender system. Lawyers suddenly had lots of work, although it was often with low pay and massive caseloads.
"Before Gideon, the typical defender organization...might handle several hundred or at most, a few thousand cases per year," Mayeux writes. "By the late 1960s, large urban defender offices' caseloads had spiraled into the tens of thousands."
Mayeux goes into excruciating detail about these and other modern problems. Even today, we are far from an ideal situation.
As regards the prose, this book is a dream to read. Sara Mayeux knows how to write a straight, simple sentence, and everything else that surrounds that is elegant and subtle. How can an author write about something so complex and yet make it so clear and beautiful? Every time I picked up this book, I looked forward to reading it. I am not a lawyer, and yet I feel educated on this subject. Every book should read like this.
May 8, 2025
Public defender as bastion of the American ideal to combat communism and affirmation of the rule of law.
Reading Sara Mayeux's "Free Justice" was eye opening and a helpful framing of how the function of the PD in America came to be. I highly recommend it. Our role in the criminal courts was not a given, but it did become a point of bipartisan pride and bolstered national self-perception in Cold War America, even if it was not always adequately funded once established. Gideon v. Wainwright was not a bolt of lightning, but the culmination of a consensus about how Americans regarded due process. There was even a TV show!
It is hard to conceptualize that in the progressive era, offices such as the Los Angeles County Public Defender (where I worked for 10 years!) actually emerged from a somewhat different paradigm that was less adversarial and more idealistically collaborative with the prosecution in sussing out which cases should be resolved. The idea feels foreign as our zealous fidelity to the client is so primary to my professional self-perception. But maybe modern diversion programs with "justice partners" is part of this progressive era notion reemerging.
But another takeaway is that the work we PDs do is essential and should be generously funded with sufficient attorneys, holistic team members, investigators, technology, experts, and whatever else. The return on investment is incredible.
Reading Sara Mayeux's "Free Justice" was eye opening and a helpful framing of how the function of the PD in America came to be. I highly recommend it. Our role in the criminal courts was not a given, but it did become a point of bipartisan pride and bolstered national self-perception in Cold War America, even if it was not always adequately funded once established. Gideon v. Wainwright was not a bolt of lightning, but the culmination of a consensus about how Americans regarded due process. There was even a TV show!
It is hard to conceptualize that in the progressive era, offices such as the Los Angeles County Public Defender (where I worked for 10 years!) actually emerged from a somewhat different paradigm that was less adversarial and more idealistically collaborative with the prosecution in sussing out which cases should be resolved. The idea feels foreign as our zealous fidelity to the client is so primary to my professional self-perception. But maybe modern diversion programs with "justice partners" is part of this progressive era notion reemerging.
But another takeaway is that the work we PDs do is essential and should be generously funded with sufficient attorneys, holistic team members, investigators, technology, experts, and whatever else. The return on investment is incredible.
August 30, 2024
The importance of public defenders and appointed counsel to the "just" operation of the criminal justice system is under appreciated by professional and lay readers. This book unfortunately does not provide the comprehensive evaluation the delivery of appointed representation in criminal cases we need. It is at times repetitive and at other times leaves whole areas of the nation and system unreported upon. It leaves untouched the distinctions between representation at trial and the different, but important representation on direct appeal. It mentions only in passing the difficulty of representing clients in state court who routinely require parallel representation in federal on habeas actions. It does not discuss in any detail the special burden placed on the appointed counsel system by death penalty cases, especially after SCOTUS rulings changed major standards for the application of the death penalty and required whole scale resentencing. Finally, the author does not attempt to evaluate the cost effectiveness of the public defender systems--or compare the different public defender systems--to the appointed counsel systems in delivering the promise of adequate representation for those accused of crimes in our criminal justice system.
September 15, 2020
Public Defense History
This is a very well-researched history of public defense. I wish it would have continued through the 1980s and distinguished better state and federal defense. Overall, a very interesting read.
This is a very well-researched history of public defense. I wish it would have continued through the 1980s and distinguished better state and federal defense. Overall, a very interesting read.
January 26, 2021
I enjoyed the nuts-and-bolts sections about how public defender officers were founded and funded. I was less interested in the competing intellectual theories of what a public defender should be, but that’s probably my failing, not the book’s.
December 17, 2024
Needs a good editor. Interesting information about the history of public defenders and sort of modern criminal justice system. Drags in the second half.
Displaying 1 - 9 of 9 reviews