FREE-ING CRIMINAL JUSTICE.

• Author: Capers, Bennett
• Position: Annual Book Review Issue

FREE JUSTICE: A HISTORY OF THE PUBLIC DEFENDER IN TWENTIETH CENTURY AMERICA. By Sara Mayeux. University of North Carolina Press. 2020. Pp. xi, 271. $26.95.

INTRODUCTION

In the epilogue to her thought-provoking book Free Justice: A History of the Public Defender in Twentieth-Century America, legal historian Sara Mayeux (1) turns to a case that was unfamiliar to me, Polk County v. Dodson. (2) At first, I wondered if I'd not heard of the case because I teach Criminal Procedure: Investigations, rather than its counterpart, Criminal Procedure: Bail to Jail. That, and the fact that in my own scholarship, I've focused on the prosecutorial side of the coin--I was a federal prosecutor before joining the academy--rather than the defense side. (3) Or--sigh--that even as a somewhat-recognized criminal justice scholar, I was not well-read enough; an important case had escaped me. But as I read on, I realized Mayeux herself was describing the case as "obscure" (p. 187). So it wasn't just me. That said, her describing Polk County v. Dodson as "obscure" and saving its appearance for the epilogue to her book--she describes it as a case "that provides the most fitting ending" to her tracing of the "public defender's trajectory as a character in American legal culture"--only piqued my interest more (pp. 187-88). I found myself sitting up, intrigued.

Polk County, Mayeux tells the reader, involved a civil rights lawsuit brought in 1981 by an Iowa prisoner against the public defender who had been assigned to represent him on appeal (pp. 187-88). The defender declined to pursue the appeal, believing it frivolous. (4) This, Dodson argued, deprived him of his right to counsel and due process, entitling him to redress since federal law provides for compensation when a state official or someone acting "under color of state law" deprives a person of a constitutional right. (5)

But there was a threshold question. Are public defenders in fact state actors? In a way, the question seems to answer itself. Public defenders are, after all, public, as opposed to private, defenders. They work on the state's dime. And the state does so to fulfill the constitutional right to counsel established in Gideon v. Wainwright. (6) Beyond this, public defenders are counterparts to prosecutors, who are surely state actors. (7) But wary, perhaps, of what it would mean to recognize public defenders as state actors, the Court reached the opposite conclusion. Because a public defender "owes a duty of undivided loyalty to his client," he is necessarily independent and "free of state control." (8) Of course, "free of state control" may depend on how one views things; to some, the fact that the state holds the purse strings of public defenders is control. You know, whoever pays the piper calls the tune. But from the majority's point of view, the payer of the piper was irrelevant, or at least not determinative. "[A] public defender is not acting on behalf of the State." (9) Period. Indeed, "he is the State's adversary." (10)

Mayeux chooses to end with the Polk County case because, for her, the case "enshrined ... the version of the public defender that the legal profession had settled upon by the time of Gideon" (p. 188). It is telling, Mayeux adds, that "[i]n all of the major right-to-counsel cases of the twentieth century, the counsel in question had been figured as the state's adversary" (p. 189).

Mayeux's take on the Court's view of public defenders is spot on, at least if one isn't too cynical about the Court. And the history she tells--of how the public defender, once regarded "as a socialist-style project" (p. 3), became "a quintessentially American institution" (p. 4)--is illuminating, as is her argument that the history of the public defender is inextricably tied to ideas of American democracy and elite lawyers' conception of American identity (p. 15). The story she tells is an important one, especially for anyone interested in criminal justice and how we got here. And yet as I read her book, I found myself thinking of other stories.

This Review focuses on two of those stories. In Part I, I turn to a story that precedes Mayeux's account--that of the rise of the public prosecutor--and the lessons we might learn from looking at the rise of prosecutors and public defenders in tandem. In Part II, I present yet another story, or at least another point of view. As Mayeux puts it, her book "yields an emphasis on the voices of elite lawyers" (p. 13). But what of criminal defendants? What type of defense did they want? Viewed together, Parts I and II suggest the turn to public defenders is less salutary than it may seem, calling into question the Court's view of the public defender as the state's adversary and the notion of "free" justice. Finally, in Part III, I imagine what public defense can still become.

1. THE OTHER "FREE" JUSTICE: THE RISE OF THE PUBLIC PROSECUTOR

   "Today," Mayeux observes, "public defenders form part of the American way of life in the literal sense" (p. 2). They are "now so ubiquitous in American courtrooms that it is easy to forget how recently the legal profession considered their very existence controversial" (p. 2). But there is another history that precedes the rise of public defenders, one that introduced another criminal justice actor. There is little historical record of the debates between elite lawyers regarding these actors, or of their views. Nor is there a game-changing opinion equivalent to Gideon. Yet this important history should complicate our views of public defenders.

   I am referring to the rise of public prosecution. Like public defenders, public prosecutors are so ubiquitous that we take them for granted. They too seem "part of the American way of life" (p. 2). But in fact, public prosecutors are "[a] historical latecomer"; (11) they may have preceded public defenders by a century, but they too are a recent development in the grand scheme of things.

   As I have explored elsewhere, "[w]hile the notion of a crime victim pursuing criminal charges herself may seem 'alien to modern America,' throughout colonial America ... private prosecution was the norm," just as it was in England. (12) Describing the practice of private prosecution, historian Joan Jacoby has written that "[t]he aggrieved victim, or an interested friend or relative, would personally arrest and prosecute the offender, after which the courts would adjudicate the matter much as they would a contract dispute or a tortious injury." (13) This is not to say there were no public prosecutors at all: the American colonies had the equivalent of attorneys general. However, as in England, their role was essentially limited to prosecuting matters that were of particular interest to the Crown. For everyday crime, "criminal prosecutions belonged to 'the people.'" (14)

   Our now-ubiquitous public prosecutor owes his existence not to our English forebears, but more likely to the influence of the Dutch, who controlled the area now known as New York until 1674. (15) The Dutch criminal system included a schout whose duties included considering complaints, statements and evidence from aggrieved citizens as well as "presenting the case against the defendant and notifying all accused of the charges levelled against them." (16) When England seized control of the Dutch colony New Amsterdam and rechristened it New York, they retained the schout in a modified form. (17) And this is what led to the birth of the American prosecutor, with Connecticut--which had also been partly under Dutch control--being the first colony to abolish private prosecution and adopt instead a system of public prosecutors. (18) Other colonies and then states eventually followed suit in...