Justice, Power, and Politics

A History of the Public Defender in Twentieth-Century America

Sara Mayeux

• Publisher: The University of North Carolina Press
• Year: 2020
• ISBN:
  9781469656038
• Topic: Law
• Subtopic: Legal History
• Index: Law

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 has 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 it 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.

CHAPTER ONE

Free Justice

“Public Defender Proposed for New York,” read the headline, atop a full-page article in the 7 June 1914 New York Times. Below the headline appeared a pen-and-ink portrait of the proposal’s advocate: Mayer C. Goldman, a Manhattan lawyer wearing a suit, tie, and Teddy Roosevelt-style pince-nez. Readers may have found the term “public defender” unfamiliar. Other than an embryonic office across the country in Los Angeles, no American city had such an official. In an interview with the Times, Goldman described a novel type of local functionary: a criminal defense lawyer, but a lawyer employed by the city, on a salaried basis, rather than retained case-by-case by individual defendants. This official would appear in court on behalf of New Yorkers accused of crime and argue the defendant’s side of each criminal case free of charge. Such an official was necessary, Goldman argued, to ensure that all defendants received a full defense, especially those who were poor or unfamiliar with the law. Under the existing procedures, if indigent defendants had lawyers at all, they usually had one of two types: either “disreputable attorneys,” who promised bargain rates, but were notorious in legal reform circles for engaging in extortionate collection practices; or counsel appointed by the court on an ad hoc basis, who were often “inexperienced” and typically served without compensation. By replacing both kinds of “half-hearted” legal representation, Goldman argued, the public defender would guarantee dignified, capable counsel for every defendant.¹

Goldman’s argument rested, in part, on a simple parallelism. Already, New York provided for district attorneys—public officials who argued the prosecution side of criminal cases and were paid a regular salary rather than case-by-case fees. It was only logical that the state provide the lawyer on the other side, Goldman argued, to ensure that both adversaries appeared in court “on an equal footing.” The benefits of such an arrangement would extend beyond individual relief. Because they would be ethical and able public servants, public defenders would raise “the tone” of criminal trials. Removing the issue of lawyers’ fees from criminal adjudication would upgrade the unruly courts of the nation’s largest city into “dignified and orderly” tribunals befitting a “modern civilization.”²

Goldman was not the first American lawyer to propose public defense in criminal cases. His most significant predecessor (although he failed to credit her) was Clara Foltz, the first woman admitted to the bar in California, who toured the nation lobbying for public defender legislation beginning in the 1890s.³ Nor was Goldman the only outspoken proponent of the idea during the Progressive Era. Others included Maurice Parmelee, a sociologist who would later abandon academia for an eclectic career in government service and finally for retirement in Florida, where he became an outspoken proponent of nudism.⁴ But between 1914 and his death in 1939, Goldman was the public defender’s most relentless promoter, and thus he was eulogized as the idea’s “leading proponent.”⁵ In addition to his “lifelong fight” for the public defender, Goldman worked for many years as counsel to Bernarr Macfadden, the celebrity bodybuilder and pulp magazine magnate.⁶ All three—Foltz, Parmelee, and Goldman—exemplified the eccentric valence of the public defender idea in its early years, when government-provided criminal defense constituted not legal orthodoxy but a novelty that appealed to outsiders.

Three years after the New York Times feature, Goldman reprised his case in a book—really an extended pamphlet—entitled The Public Defender: A Necessary Factor in the Administration of Justice. The title encapsulated Goldman’s style, which was not to suggest the public defender as a possibly useful incremental reform, but to insist that it was necessary; he described himself as “spread[ing] the gospel.”⁷ He repackaged his arguments in a second edition of the book in 1920; in dozens of legal articles and letters to the editor; in a motion picture or “propaganda photoplay”; in an unsolicited letter to the Wickersham Commission, the blue-ribbon panel appointed by President Herbert Hoover to study the problem of crime; and in any number of meetings and debates that he joined through his participation in various bar committees about the problem of indigent defense.⁸

Goldman had to repeat his arguments over and over again for a reason: they kept getting rejected. The lawyers who wielded the most professional clout in New York City—the Wall Street lawyers who dominated local bar associations—dismissed his 1914 proposal and thereafter were never convinced by Goldman’s case for detaching the profit motive from criminal defense.⁹ To the leaders of the corporate bar, then in the process of consolidating themselves as the legal profession’s public voice, proposals like Goldman’s raised the specter of “socialization”: government intrusion into the independent and self-regulating legal profession.¹⁰ Notably, Goldman and his interlocutors did not limit their proposals to public defenders for the poor. Although Goldman’s 1914 proposal assumed that wealthy defendants could continue to hire their own lawyers, he and other reformers later began to demand compulsory public defense for everyone accused of a crime, rich and poor alike. Parmelee had always insisted that “no one, not even a rich person, ought to be forced to provide his own defense.” If society chose to subject a person to “the humiliation of being prosecuted,” then society ought to pay for it.¹¹

To many lawyers, such rhetoric sounded outlandish. If criminal defense lawyering could be monopolized by the government, where would it end? To the extent that elite lawyers acknowledged the specific plight of indigent defendants, they favored private alternatives to Goldman’s solution. Pro bono service, philanthropy, and voluntary associations could provide legal representation for the poor while leaving undisturbed both the market in legal representation for the rich and the classically liberal justifications upon which that market rested. Yet Goldman remains significant to the history of the public defender. Even though he did not succeed, he provoked from elite lawyers a revealing response—one that illuminates certain enduring parameters of American legal culture. The Wall Street lawyers’ differences with Mayer Goldman represented one expression of a deeper fissure over the role of lawyers in the modern industrial city, in which law—and especially criminal law—had become a primary means for regulating day-to-day urban life.¹²

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BEFORE THE PUBLIC DEFENDER became a real-world plan, a version of the idea had appeared as an inchoate suggestion in the bestselling novel of 1888, the utopian tract Looking Backward.¹³ Written by the reclusive Massachusetts journalist Edward Bellamy, Looking Backward chronicles the time-travels of a Boston lawyer who falls asleep one night and awakens in the year 2000.¹⁴ He learns that America has transformed into a fully nationalized economy, with no distinction between state and society. The means of production are centrally owned and managed, all citizens supply compulsory labor in the “industrial army,” and in return, all receive equal provisions, but enjoy few individual liberties. A Baptist preacher’s son flummoxed by the Gilded Age, Bellamy disdained the nouveau riche and feared the working-class masses; though later remembered as an inspiration to American socialists, he refused the label of socialist (“It smells to the average American of petroleum, … sexual novelties, and an abusive tone about God and religion”). Instead of a revolution, he dreamed that class struggle might gradually dissolve into a placid, bureaucratic equilibrium.¹⁵ Scholars revisiting Looking Backward have expressed alarm at the authoritarian tendencies of an imagined world where labor is mandatory and workers are constantly surveilled.¹⁶ In the 1880s, though, Bellamy’s prophecy appealed to tens of thousands of less literal readers attracted in a gauzier sense to the possibility that the inequities produced by industrial capitalism might one day work themselves out.¹⁷

In one chapter of Looking Backward, the time-traveling lawyer Julian West visits the judiciary of the future. It is an expert bureaucracy without codified laws, defined crimes, juries, or even lawyers—at least, not lawyers as Gilded Age Americans understood them. In the novel’s year 2000, there are no criminal courts of the type familiar to nineteenth-century Americans—crowded rooms in which lawyers made emotional speeches and juries issued moralizing judgments, applying legal standards that asked them to consider questions like whether a killer had acted with “malice aforethought” or displayed an “abandoned and malignant heart.” Such courts have become unnecessary, because in utopia there are no malignant hearts; without inequality or poverty, most of the behavior once labeled “crime” has also disappeared. This plot point in Looking Backward distilled the emerging, late-Victorian understanding of wrongdoing not as the expression of individual sin, but as behavior conditioned by the social environment.¹⁸

But occasionally, even in Bellamy’s utopia, someone commits something like a crime—now labeled instead an “atavism.” When that happens, Bellamy’s imagined society responds with “an attitude of compassion.” Instead of retributive punishment, the offender is met with “gentle restraint.” If the accused insists first upon a trial, then “the judge appoints two colleagues to state the opposite sides of the case.” But they are indeed “colleagues,” West is told, and not adversaries. They are nothing like the “hired advocates and prosecutors” of old, “determined to acquit or convict” at all costs. Their only goal is to reach a mutual understanding. Each case is tried over and over until both sides agree.¹⁹

Bellamy imagined a utopia without lawyers because he despised lawyers. He had been a lawyer himself once, but only for two days. When he opened a practice in his hometown of Chicopee Falls, he hoped to debate “great constitutional questions.” To his dismay, the available small-town legal tasks consisted mainly of collecting bills and evicting tenants. After handling one such case, he aborted his career.²⁰ Lawyers, he concluded, amounted to “barbarous” mercenaries, loyal “only to the keeper of the money chest.” Every other modern profession, he claimed, had “cut out” this kind of behavior. Only in “the so-called liberal profession of law” did purportedly “honorable men” debase themselves for the highest bidder.²¹

Similarly, Bellamy imagined a utopia without individual rights because he placed little stock in individualism. As political scientist Arthur Lipow observes in an astute analysis of Bellamy’s dismissive stance toward the rights of the accused, Bellamy defined progress itself to mean “subordinat[ing] the interests of the individual to the state.” Defendants neither required nor deserved special procedural rights, because rights were barriers, and there could be “no barriers” between individual and society. An individual accused by the collective must recognize a moral duty “to place society’s interests above his own,” and submit willingly to punishment if deserved. This framework further confirmed the need to eliminate lawyers: “no third party, the hired defense lawyer, can be allowed to come between the accused and the state in order to act as the agent for the accused criminal’s purely personal or private interests.”²²

After the surprising success of Looking Backward, Bellamy’s politics softened; he became more of a standard-issue Gilded Age populist reformer. The novel’s runaway sales propelled the introverted Bellamy into national fame and a new role that he had not sought, but gradually accepted, as the leader of a mass movement organized under the banner of Nationalism. The thousands of Americans who joined local Nationalist clubs also admired the contemporaneous Populist movement of farmers and workers; they were eager to become involved in present-day change, not content to wait for the eventual nationalization of the economy that Looking Backward prefigured. Rather than an inevitable but future evolution, Bellamy’s later writings posited that nationalization required the concerted, step-by-step takeover by the state of various sectors and functions—political work that could begin at once.²³

The newly reformist Bellamy endorsed the public defender not as an incidental detail within a utopian panorama, but as a policy recommendation for the here and now. In his movement’s newspaper The New Nation, Bellamy promoted “free justice”—by which he meant public defenders—as a step toward bringing the law under the auspices of the state. “If a public prosecutor suffices to protect the interest of the people,” he wrote, then “surely” it was reasonable to provide the accused with “a public defender, equally without private interest in the case.” Public defense would ensure that “poor and rich” are “equalized before the law,” but beyond that, it would detach selfish motives from criminal adjudication. Once public defenders were available, defendants should no longer be permitted to retain their own private counsel even if they preferred to. Poor defendants would enjoy access to a full defense, and rich defendants could no longer hide behind Bellamy’s despised mercenaries.²⁴

Neither Bellamy nor the Nationalist movement survived the 1890s, but the public defender idea end...

Table of contents

• Cover
• Series Page
• Title Page
• Copyright
• Contents
• Acknowledgments
• Introduction
• Chapter One. Free Justice
• Chapter Two. From Charity to Right
• Chapter Three. Democratic Justice
• Chapter Four. A Permanent Crisis
• Chapter Five. Local Injustice
• Epilogue
• Notes
• Bibliography
• Index