The Unfulfilled Promise of the Public Defender: Despite a century of progress, the poor still don't get a fair day in court.

• Author: Fredrickson, Caroline

Free Justice: A History of the Public Defender in Twentieth-Century America

by Sara Mayeux

University of North Carolina Press, 280 pp.

In 1963, the Supreme Court issued a blockbuster decision: The Sixth Amendment's right to counsel meant that poor people accused of a serious crime must be provided a lawyer at state expense. But that ruling, Gideon v. Wainwright, has not transformed our criminal justice system in the way that some might have hoped. Almost 60 years later, the right has been extended to juvenile and misdemeanor proceedings, and public defense systems across the United States vary greatly in quality and structure. Some jurisdictions have established public defender offices, while others engage private counsel. Most, if not all, struggle with underfunding and excessive caseloads, which make it difficult to provide adequate representation to clients.

But long before Gideon, Clara Foltz, a rare woman practicing law in the late 19th century, barnstormed around the country in favor of a public defender service. Foltz, who had done some criminal defense work in California, advocated for a salaried cohort of attorneys who could represent criminal defendants. In many places, poor defendants had to hire their own lawyer or go unrepresented. Some other localities had adopted an "assigned counsel" approach, with judges choosing local lawyers--often unpaid--to assist low-income people charged with a crime. But Foltz believed that approach was inadequate. Few highly paid lawyers would take such cases, leaving the work to those who had few clients because they were unskilled (or even incompetent), or those like Foltz, who had limited options due to bias against women. The representation was often less than zealous, and possibly even detrimental. If the lawyer was actually trying to do a good job, they were paid meagerly or not at all.

Foltz, touting her experience in California, which, unlike most other states, had already adopted a government-funded public defender service in certain cities, went on the road to try to sell the idea to a broader American audience. She had little luck. The New York Times disparaged Foltz's proposal, calling it the "strange project" of a "female attorney." But over the next 40 years, Foltz's project was taken up by others more successfully. The idea began to take root that those accused of a crime should not be left to defend themselves in the courtroom if they could not afford a lawyer.

In Free Justice, an engaging history of the public defender in the United States, Sara Mayeux, a legal historian at Vanderbilt University, uses the development of the government-funded criminal defense attorney system to examine larger questions in American history, including the hypocrisies and tensions in the legal profession itself about what constitutes "equal justice under law." Starting at the end of the 19th century, Mayeux locates the debate over whether and how the poor should get a defense...