AuthorHoag, Alexis
PositionAnnual 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.


Writing about history requires making certain decisions: when to start the account, what to include and exclude, which documents and artifacts to rely upon, and what questions to address. One factor that can significantly shape those decisions is the social and political moment occurring at the time the author writes. It is with this in mind that I read Sara Mayeux's (1) thoroughly researched and engaging account of the history of public defenders, Free Justice: A History of the Public Defender in Twentieth-Century America. As the subtitle indicates, it is not the history, but rather a history of defense counsel for low-income defendants. Despite explicit language in the Sixth Amendment, adopted in 1791, guaranteeing "the accused ... to have the Assistance of Counsel for his defence," (2) the substantive right to counsel is largely a twentieth-century invention. (3) Mayeux, a scholar of twentieth-century United States legal history, is well-suited to examine this development.

In deciding where to anchor this account, Mayeux focuses on elite corporate lawyers during the Progressive Era, their philanthropic efforts, and the legal profession's changing identity. Free Justice unearths the legal profession's dramatic shift in attitude toward public defense over the course of the twentieth century. Elite lawyers initially viewed public defense as akin to communism or as the socialization of the private bar, but by midcentury they regarded public defenders as exemplars of democracy and "the American way of life" (pp. 3-5).

This dramatic shift, according to Mayeux, enabled most indigent-defense delivery models to transition away from elite lawyers' benevolence and ad hoc services to state-financed public-defender offices, legal aid societies, and nonprofits. Gideon v. Wainwright, (4) the Supreme Court decision extending the right to counsel to indigent defendants accused of crime, was part of the shift. But as Mayeux uncovers, larger forces were already in motion. (5)

As Mayeux acknowledges, the legal profession encountered great difficulty in carrying out Gideons aspirational mandate of championing democracy and protecting due process (p. 150). Free Justice is less convincing at explaining why; Mayeux points to funding constraints and the profession's inability to enforce its own standards for effective representation. (6) However, the book misses the opportunity to interrogate the role that racism and white supremacy played in shaping the legal profession and legal services, including the right to counsel for low-income defendants. As other legal historians have recognized, the subordination of nonwhite people, particularly Black people, and the criminalized lens through which society viewed them, profoundly shaped criminal procedure, due process, and indigent defense. (7) This is not to say that Free Justice ignores the role of racism and white supremacy, but the book treats them as supporting players, (8) when they were central to the design of indigent defense and continue to impact its (dys)functionality.

In this Review of Free Justice, I argue that one cannot tell a history of public defense without interrogating the political, social, and legal status of Black and other nonwhite people (9) charged with crime. Informing my approach is the nation's current engagement in a racial reckoning and the increased awareness of racism's pervasive impact. (10) I often apply a critical race lens to a get a fuller picture of this nation's legal history. (11) As Professor Derrick Bell's student, I learned that even if the presence of racism is not immediately apparent in a historical event, policy decision, or legal development, it often played a significant role. (12) I witnessed this firsthand as an assistant federal public defender in Tennessee, where I spent nearly a decade representing indigent defendants pursuing habeas relief from their murder convictions and death sentences. (13) Even in cases where racism and white supremacy did not initially appear relevant, they impacted the proceedings. (14) My subsequent experience as senior counsel at the NAACP Legal Defense and Educational Fund, (15) advancing racial justice in criminal and civil cases, reinforced this reality.

In this Review, I focus on the role that racism and white supremacy played in the criminal legal system and its impact on the creation, scope, and trajectory of modern indigent defense. We cannot understand the impact of racism, particularly anti-Black racism, without recognizing that white supremacy undergirds it. (16) By applying a critical race lens to the history of indigent defense and the development of the right to counsel, my hope is to provide additional insight into why public defense has struggled to deliver justice to the accused. I also use this lens to suggest alternative ways to advance justice for poor people ensnarled in the criminal legal system.

My hope for this Review is that it generates new avenues of inquiry and encourages future scholarship on indigent defense that grapples centrally with racism and white supremacy. In Part I, I identify a central tenet of critical race theory and apply it to Free Justice's utopian framework and Progressive Era notions of criminal conduct, charity, and the legal profession. In Part II, I examine the post-Gideon fallout in underresourced Black communities, the growth of mass criminalization, (17) and ineffective-assistance-of-counsel jurisprudence through a critical race lens. I conclude the Review with thoughts on a different method of delivering justice to indigent people facing criminal charges.


    Critical race theory (CRT) is a theoretical framework and movement that challenges traditional approaches to civil rights. Developed by law students and scholars in the late 1970s and early 1980s, CRT enables us to understand the role that racism played in the development of laws and policies. (18) A central tenet of critical race theory is that racism is an ordinary, common occurrence. (19) This reality is based, in part, on the fact that this nation is socially organized by race and ethnicity, and that white supremacy helped shape aspects of our legal system, (20) economy, (21) and politics. (22) This acknowledgment enables us to recognize the extent of racism's entrenchment, while also freeing us to be more creative about imagining ways to change these power structures. The question is not whether racism had an impact, but rather, to what extent and what can we learn from racism's impact? Applying this tenet to the history of indigent defense and the right to counsel can help us better understand their development and present-day operations. (23)

    This Part examines the themes Mayeux raises in Free Justice--indigent defense's utopian framework, public perceptions of criminality, Progressive Era charity, and the developing legal profession--through a race-conscious lens. By acknowledging that white supremacy and anti-Black racism shaped these elements, we can better imagine ways to dismantle racism's hold on the criminal adjudication process.

    1. A Raceless Utopia

      Mayeux situates Free Justice within political activist Edward Bellamy's reformist ideals, both titularly and conceptually (pp. 26-29). In his weekly newspaper The New Nation, Bellamy promoted the concept of "free justice," recommending that the state fund defense lawyers--just as it funded prosecutors--to defend the accused and ensure equality before the law for low-income defendants (p. 28). Mayeux mentions Bellamy's 1888 politically influential utopian novel, Looking Backward: 2000-1887. (24) Although Bellamy used the book to advocate for income equality, it ignored racism's role in creating and perpetuating structural inequality. The main character, Julian West, a Boston lawyer, falls asleep and wakes up in the year 2000. In the future, West finds that there is only one human race, equalized by a shared income. (25) Criminal behavior, known as "atavism," is recognized "as the recurrence of an ancestral trait" because society abolished the primary motive for crime: want. (26) Without poverty and desperation, people had little incentive to commit robbery, rape, or murder; instead, any "atavist" behavior was the product of a person's biological makeup. (27)

      Without crime, the legal system in Bellamy's future eschewed lawyers, adversarial trials, and punishment, striving instead for the unbiased truth. (28) Society expected those with "an ancestral" disposition for atavistic behavior to plead guilty. (29) For a proponent of "free justice," it is curious that defense lawyers were nonexistent in Bellamy's fictional utopia. Instead, when an accused person refused to plead guilty, "the judge appointed] two colleagues" who either "agree[d] that the verdict found [wa]s just," or tried the case again, pursuing truth rather than an acquittal or a conviction. (30)

      Echoing Bellamy's raceless utopia, many of the first public-defender offices ignored the structural racism inherent in the criminal adjudication process. (31) These early defender offices were often ill-equipped to acknowledge and address the racial discrimination their clients faced.

    2. The Color of Crime

      Looking Backward's depiction of people biologically predisposed to crime reflected the belief that a person's race (as opposed to external factors) dictated criminal behavior. These concepts developed early in the nation's history and morphed alongside changing notions of race over time. Although the right to counsel as we know it today did not yet exist, (32) the legal system's early conceptualization of crime is instructive for understanding the contemporary shortcomings of indigent defense.

      A few decades after white settlers brought enslaved Africans to the shores of colonial...

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