How Did We End Up With Our Current Public Defender System?

How Did We End Up With Our Current Public Defender System?

Unequal Before the Law

How did we end up with our current system of public defenders?


This spring, graphic images of a white police officer digging his knee into George Floyd’s neck served as a catalyst to renew the mass social movement against police violence and racism that has come to be known as Black Lives Matter. After the highly publicized police killings of Breonna Taylor, Tony McDade, and Rayshard Brooks, protests continued into the summer and fall. These protests have been large in size and radical in their demands. Just a few years ago, in the wake of Michael Brown’s death in Ferguson, Mo., modest calls to reform the police and implement federal consent decrees seemed almost revolutionary to many Americans and were the primary aim of many marching in the streets. Today, calls to defund the police have become the central demand. For so many, there is no fixing today’s system of policing. It needs to be abolished.

But the police are only one part of a larger problem, and the Movement for Black Lives has issued a critique of the broader legal system, which reinforces a regime of police brutality and punishes poor communities of color in other insidious ways. The criminal courts, for instance, are often viewed as potential sites of justice, where victims can go to seek redress and criminals are held accountable. And in the aftermath of police killings, community members have frequently demanded that prosecutors file charges against the officers involved and, if by some miracle prosecutors did, hoped for convictions by a judge or jury. But as a number of activists have argued, criminal courts more often than not reach verdicts that legitimate police abuse, and they do so while expending the bulk of their resources to control and exploit poor people of color through pretrial incarceration, probation requirements, fines, and fees. For this reason, the Movement for Black Lives’ 2020 policy platform includes a demand for an “end to pretrial detention and money bail.” The struggle to abolish the police is intimately linked with an urgent need to address the injustices of the criminal courts and other punitive systems.

Floyd’s life illustrates how police misconduct operates alongside criminal court control. Growing up in public housing in Houston, he was swept up into the War on Drugs, like so many other poor Black men of his generation. In 2004 he was arrested on drug charges and taken to court. After months spent fighting his case, he took a plea deal to serve 10 months in jail. But according to reporting from The New York Times, the evidence used to convict him may have been fabricated. Gerald M. Goines, the police officer who arrested Floyd, is under investigation for lying in numerous drug cases during his career, including about Floyd’s alleged transaction. At the time of Floyd’s sentencing, however, the prosecutors did not scrutinize the validity of Goines’s evidence, unfairly upending Floyd’s life and the lives of scores of other defendants.

Recent books like Issa Kohler-Hausmann’s Misdemeanorland, Mona Lynch’s Hard Bargains, and Nicole Gonzalez Van Cleve’s Crook County reveal just how common such injustices are in the criminal courts. Through damning ethnographic accounts, they show how today’s prosecutors rely on and cover for police abuse, how judges look the other way, and how defendants are pressured to accept guilty pleas or consent to behavioral modification programs despite maintaining their innocence.

For many poor defendants of color caught up in this system, public defenders are the last line of defense. Appointed by the state to represent those who cannot afford an attorney, public defenders can serve as a check on the power of a police department and a prosecutor’s office that are often institutionally aligned. In fact, it is the post-conviction unit of the Harris County Public Defender’s Office in Houston that has taken the lead in challenging several of the drug convictions stemming from Goines’s false testimony. But much of the existing scholarship commonly portrays public defenders either as complicit in perpetuating injustice or as struggling ineffectually against high caseloads, low salaries, and too much prosecutorial power. How might we make sense of the seeming promise of the public defender and the evident limits of public defense in practice?

In her new book, Free Justice: A History of the Public Defender in Twentieth-Century America, Sara Mayeux provides a definitive history of this important yet conflicted institution, documenting along the way how liberal legal reforms can function to legitimate material inequalities and distract from more robust commitments to social justice. Taking readers from the Progressive Era to the height of the Cold War, Mayeux shows the stages by which influential reformers crafted our current indigent-defense system.

These days, she notes, public defenders are often taken for granted: Their presence in the courtroom, whether effective or not, is the norm rather than the exception. Yet as recently as the 1950s, public defender’s offices were rare, and they were controversial, viewed by many lawyers and policy-makers as a socialist reform contrary to American values. Most poor people faced criminal charges unrepresented, with a patchwork of private firms and voluntary legal aid organizations stepping in to defend the few deemed deserving of their philanthropy. By the 1970s, this system of legal representation had changed; the majority of Americans lived in jurisdictions served by a public defender’s office, and legal professionals came to view the provision of so-called government lawyers as a cornerstone of liberal democracy.

Mayeux’s account is cautionary. She documents how transformations to American legal culture were made possible by the persistent efforts of advocates, but she also marks the detours and missed opportunities in the formation of the public defender system as we know it today, which raises a set of questions about the efficacy of technocratic and symbolic reforms. As activists and scholars organize in the current moment, her book offers a lesson in both the possibilities and the limits of such reforms in addressing social inequalities in the courts. The seeming success of the concept of the public defender reminds us that the expansion of rights in one domain cannot rectify social injustice without a corresponding expansion in others. Fixing the failures of our criminal legal system requires more than the provision of effective legal representation to the poor; it requires a redistribution of power and wealth to the marginalized communities and individuals whom criminal law targets for punishment.

In the late 19th and early 20th centuries, America’s criminal courts were notoriously arbitrary, racist, and corrupt. In the South, Black citizens were excluded from serving on juries, and many Black defendants were tortured until they produced self-incriminating testimony. Mass arrests and mob-dominated trials were a routine feature of Southern courts, drawing the attention and, at times, the reprimand of the US Supreme Court. Meanwhile, in the Northeast, the courts had problems of their own. In Manhattan’s courthouses, “lawyers screamed at each other’s clients and lobbed insults at one another. Defendants, crowded into the courtrooms in large groups, could little follow the proceedings,” Mayeux writes. Taking advantage of this chaos, so-called lawyer-criminals—that is to say, lawyers who demanded exorbitant fees or even sexual favors for their services—took advantage of poor defendants desperate to get out of jail or avoid a conviction.

It was amid this disarray that the modern concept of the public defender emerged. The arbitrary nature of the process in the criminal courts frustrated not only the advocates seeking justice for poor defendants but also the elected officials and policy-makers seeking to manage crime in urban areas, who found the system to be an ineffective deterrent. The situation made it difficult to adjudicate factual guilt or innocence, too, undermining the rights of the prosecuted as well as the very legitimacy of the American carceral system.

The public defender idea, promoted by progressives as early as the 1890s, was offered as a possible solution. Conceived as analogous to public prosecutors, public defenders would serve as agents of the state and as representatives of the people. Their duty would be to defend innocent clients from government overreach while working harmoniously with prosecutors to seek justice through collaboration. As some early reformers envisioned their role, these public defenders would be bound by a duty to impartiality that extended beyond their duty to a client’s interests. They would therefore encourage factually guilty defendants to admit that guilt after a “collaborative inquiry” with prosecutors “into the truth,” Mayeux writes and they would seek to ensure that the innocent were not unjustly punished.

Some reformers believed that public defense should be compulsory for all, rich and poor alike, to ensure that the innocent poor are not wrongly convicted and that the rich, by having the same kind of counsel, cannot buy their way out of being held accountable for criminal wrongdoing.

The wealthy and powerful, of course, balked at this initial, more egalitarian vision of public defense, and they challenged the notion of public defenders provided only for the poor, too. Lawyers, they insisted, were supposed to be independent private professionals whose duty was to protect the individuals they represented from government coercion. Public defenders working for the state stood in conflict with this notion of the law’s independence. As Mayeux notes, for these critics, a “lawyer’s role within the American liberal order” was to act as “an independent agent of his client’s interests.” How, then, would public defenders be able to serve the public interest as well as their clients’ private needs?

In the early 20th century, liberals and legal elites largely rejected the public defender concept for this reason, and in the 1930s and ’40s they turned to private alternatives. This was especially true in the Northeast, where powerful lawyers across partisan lines were eager to maintain the profession’s independence from the government. In cities like Boston, New York, and Philadelphia, local bar associations and philanthropists offered legal representation to the poor through a smattering of legal aid societies and voluntary defender organizations as an alternative to a system in which the state employed a public defender. Dependent on private philanthropy, the voluntary organizations relied on the labor of law school students or private lawyers who, when they felt charitable, agreed to represent clients pro bono. This system meant that the resources allotted to defending the poor were scarce, and consequently these organizations chose to represent only those clients deemed the most deserving—which, as Mayeux shows, typically meant young white men who had no criminal history and were presumed innocent. Such criteria excluded the vast majority of defendants (guilty or otherwise) who needed counsel in criminal cases.

For a time, this system seemed sustainable, even if it produced profound inequalities. Yet the tide began to turn in the 1940s and ’50s, when the Supreme Court and the lower federal courts “overturned a growing number of state convictions owing to the defendant’s lack of counsel,” Mayeux writes. Many legal observers felt certain that an expansive constitutional right to counsel was imminent. Philanthropists grew skeptical of their ability to provide representation to a growing number of criminal defendants. In Massachusetts, where the voluntary model had been relatively successful in Boston and had expanded as far as Springfield by the 1950s, donors expressed their doubts publicly. “The more that indigent defense became associated with a right,” Mayeux writes, “the less eager were charitable funders to provide support.”

In 1963 in Gideon v. Wainwright, the Supreme Court unanimously ruled that the right to counsel applied to the states, requiring them in all felony cases to provide a defense attorney to people who could not afford one. Gideon is often heralded as a triumphant Supreme Court decision, particularly for its expansion of rights and justice for the poor. To be sure, the lead-up to the decision and its aftermath forced states to devise ways to provide counsel to many more indigent defendants than previously. The ruling led to the abandonment of the old philanthropic model of indigent defense and an increase in public defender’s offices around the country.

But as Mayeux shows, the vision of justice that we often associate with public defenders today was not the only—or even the main—motivation behind Gideon or the now favorable view of public defense among liberals. Rather, the anticommunism of the Cold War led many to argue that the quality of justice in American criminal courts was an important symbolic battlefield. Liberals now reasoned that better legal representation for the poor in criminal cases was necessary to ensure democratic justice, as opposed to the show trials and totalitarian justice thought to characterize the Eastern Bloc. Defense attorneys were considered indispensable to ensuring fair trials, and thus public defenders, who had been pilloried as socialist decades earlier, came to be exalted as one of the most effective ways to ensure representation for all. At a conference in 1969, Chief Justice Warren Burger “predicted that ‘the organized defender approach’ would soon ‘be the prevailing mode of representation,’” Mayeux notes.

Understanding the Gideon decision as “shaped by the politics of anticommunism” explains many of its ironies, she writes. On the one hand, the right to an attorney has remained popular despite conservative backlash against the expansion of other due process rights. Unlike the efforts to dismantle the protections against unlawful searches and seizures enshrined in Mapp v. Ohio, for example, “Gideon never became a target of the conservative legal movement,” because the right to an attorney was viewed as a liberal democratic good on both sides of the aisle. On the other hand, Gideon provided little guidance to local jurisdictions on how they should enforce the right to counsel. The lack of guidance may have been intentional; by providing few specifics, the court could signal the symbolic importance of the right while deferring to local practices in deciding how far a jurisdiction should go in ensuring its material quality. Indeed, in its later decisions under Burger, the court ruled that the right to a lawyer did not imply much in the way of a right to an effective lawyer.

Throughout the 1960s and ’70s, local jurisdictions responded to the Gideon decision in a variety of ways. While many chose to establish public defender’s offices that would take on some proportion of the indigent caseload, others, especially in the South, resisted them. In Pascagoula, Miss., for example, a pilot public defender’s office failed to gain funding from the state legislature. Even in Massachusetts, the legislature initially resisted requests for the state to permanently fund the salaries of public defenders. The number of public defenders in Massachusetts increased considerably in the 1960s (in large part from grant funding), and the legislature ultimately agreed to pay their salaries, but some district court judges remained intransigent. Accustomed to dealing with petty cases in their own way, trial court judges were unhappy with the adjudicative check that public defenders posed. Across the state, judges “either refused to appoint public defenders—sometimes appointing personal friends to indigent cases instead—or appointed public defenders but then sentenced their clients more harshly,” Mayeux writes.

Free Justice tells the history of the public defender system as it was conceived and viewed by the elite lawyers and policy-makers who would likely never have to rely on it. Through a careful analysis of speeches, professional and scholarly publications, newspaper accounts, and appellate court cases, Mayeux vividly depicts how elites in the legal profession contested “the proper relationship between lawyers, markets, and the modern state.” She takes us into the minds of these powerful actors and invites us to witness the profound impact they had in transforming our legal culture.

We meet visionaries like Clara Foltz, the first woman admitted to the California bar and an early promoter of public defenders; working in the Progressive Era, she established the parallel between them and public prosecutors. We meet reformers like Harrison Tweed, a prominent Wall Street lawyer who helped turn the tide by advocating for the public funding of defense attorneys in the 1950s. Writing in a professional publication, he “chastised lawyers for claiming that the public defender ‘smacks of communism and leads to the socialization of the legal profession.’” Instead, he argued, the public defender would help to “demonstrate the soundness and workability of our American way of life.” Mayeux introduces us to people like Roderick Ireland and Wally Sherwood, two Black lawyers who spearheaded a ”community-based alternative” in the 1970s, envisioning a new model of public defense that promoted racial justice by focusing on the needs of individual clients in criminal court and on the broader community.

Through Mayeux’s account of the professional and legal history of public defense, readers gain an awareness of the possibilities and limits of legal change from above. In the absence of clear guidance from the Supreme Court and during an initial period of minimal government funding, liberal elites used their symbolic power and material resources to fill the void, offering public-private initiatives that funded—and therefore determined the operations of—public defender organizations. Lawyers like Tweed, from his position on the executive committee of the Ford Foundation, helped pilot a set of public defender programs. But these top-down initiatives were imagined and implemented largely without the input of criminal defendants or other members of marginalized communities. Although elite lawyers were not “uniquely insightful or knowledgeable” about the matters involved, Mayeux writes, they nevertheless “assigned to themselves the power to speak as the nationwide voice of the legal profession and therefore wielded outsized influence over national discourse about legal issues.”

But there is another story one could tell about the history and present use of public defenders, one that examines how poor defendants experience this form of representation. From the perspective of the poor defendants I have met in my research, public defenders are often viewed with skepticism. They are seen, at best, as chronically underfunded and therefore unable to provide an adequate counterweight to the power of prosecutors and, at worst (because they often recommend taking a guilty plea), as government employees coopted by a criminal legal system that is inherently unfair. The common criticism by defendants that their public “pretender” colluded with the prosecution hints at something more fundamental: a critique of the overbearing presence of the state when processing and punishing them, on the one hand, and the near-total absence of the state when they need help in their everyday lives, on the other. For disadvantaged defendants, justice must exist outside the criminal courts to exist within them. To treat the criminally accused fairly means creating a system that involves not only the right to legal representation but also the right to a job, affordable housing, and health care—in other words, the rights that would allow them to be equal participants in society well before they enter the courthouse.

Without fundamentally transforming the criminal law, public defenders provide a symbol of equality and fairness in a system that, in almost every other way, is stacked against the poor and the racially subordinated. Although liberals across the political spectrum came to view the right to an attorney in criminal cases as an affirmative right that should be guaranteed by the government, they were careful to “not imply any broader rights to public assistance,” Mayeux notes. Yet such rights would go a long way toward alleviating many of the social problems and harms that the criminal law seeks to address through punishment. For example, while one may have a right to legal representation in criminal courts, those without money do not have the same protections in civil courts, where poor people are effectively barred from litigating employment disputes or fighting landlords who threaten to evict them. And when it came to the implementation of public defense, the reformers’ early reliance on public-private models often thwarted more capacious efforts to ensure government funding in criminal cases. Absent political advocacy for such funding, the reliance on private initiatives resulted only in failed programs unable to gain long-term government support.

Mayeux’s book ends in the 1970s with the public defender widely embraced but facing an uncertain fiscal future. Nearly 50 years later, this history offers lessons for today, made all the clearer in Mayeux’s short epilogue, which takes us through the 1980s and up to the present. In some jurisdictions, she writes, private lawyers and local officials continue to resist establishing public defender’s offices. Meanwhile, the most successful of these organizations, such as the Bronx Defenders, are often “pressed into service beyond their missions and asked to solve problems that might better be addressed through more expansive public health and welfare programs.” Under the cover of their support for the public defender, mid-20th-century elites ultimately made a partial and largely symbolic commitment to justice. Their unwillingness to endorse a substantial expansion of the rights to public assistance, within and beyond the courts, left many poor communities vulnerable to decades of state-perpetuated violence.

Preventing the legal injustices that George Floyd and thousands of others have experienced will require more than a constitutional right to counsel or even a commitment to state investment in robust public defender organizations (though, of course, these have been critical places to start). Today, rather than return to those liberal and technocratic reforms that tend to tinker around the edges of an inherently unjust system, we must take seriously the radical proposals emerging from community organizers and activists in the Movement for Black Lives and other social movements. We must seek not only to defund the police but also to defund prosecutor’s offices, transform the institutional practices of our courts, and invest government resources in community well-being and alternative models of peacemaking and restoration. These proposals, while they may seem fantastical to some, are the surest path to justice.

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