TWO PERSPECTIVES ON SARA MAYEUX'S FREE JUSTICE.

• Author: Simone, Brooke
• 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.

In putting together this Volume's Annual Survey of Books Related to the Law, we wanted to highlight ideas that, to borrow from Sara Mayeux, (1) "encourage a sense of capacious possibility for imagining the proper balance of power in a modern society" (p. 22). The public defender--its history, its triumphs, its challenges, its very existence--does just that. Mayeux's book, Free Justice: A History of the Public Defender in Twentieth-Century America, provides a boundless space for discussion of not only the criminal right to counsel but of American law and society more broadly. We asked two legal scholars--Alexis Hoag and Bennett Capers--to independently examine Free Justice; each offers unique insights into our complicated criminal defense system. What follows is an account of the book's core arguments that situates these two Reviews.

Mayeux's book "seeks to explain how and why lawyers came to believe in the public defender as a quintessentially American institution" (p. 4). Through its five chapters, the book artfully traces the evolution of the public defender from its Progressive Era roots to the early 1970s, when the project of mass incarceration was well underway. Mayeux takes her book's title from activist and author Edward Bellamy, who coined the term "free justice" in the 1880s to describe his proposal that " 'poor and rich' [be] 'equalized before the law'" (p. 28). The idea of the public defender gained currency with Bellamy's followers, like Clara Foltz, (2) and eventually with Progressive Era reformers such as Mayer C. Goldman. (3)

Progressive Era conceptions of crime and legal representation are recounted carefully in Free Justice. Mayeux describes the ways in which crime became a "central preoccupation" of reformers who viewed it as a "collective responsibility," seeking to "professionalize" the criminal justice system in a way that would address societal failings that led to crime and create "greater efficiency and precision" regardless of a defendant's wealth (pp. 35-36). This new system would have public defenders that mirrored public prosecutors, with the former exhibiting the same "dignity of office" and duty to the state as the latter (p. 38). Instead of adversarial trials, reformers envisioned a more cooperative system in which public defenders would "work harmoniously" with district attorneys to bring out facts and determine the truth, zealously defending innocent clients but limiting the services they offered to guilty clients to "obtainj] a just and fair punishment" (p. 38).

Such public defender proposals were initially met with staunch resistance from the legal elite. (4) This focus on the elite is a mainstay throughout Free Justice. Mayeux describes how "the bar" and "the rich" converged throughout the twentieth century, as the law became a practice dominated by those with "inherited wealth and social status" (p. 86). This elite band of the legal profession "believed themselves uniquely positioned ... to solve the nation's problems," including "the plight of the indigent" (pp. 86, 88). In places like New York and Philadelphia, powerful corporate lawyers resisted establishing a program of public defense because of its "socialization" of the "independent and self-regulating legal profession" (p. 25). (5)

The elite instead developed the idea of voluntary defenders as a private alternative to public defense. For example, the New York bar's "Voluntary Defenders Committee," established in 1917 (p. 50), offered a compromise: providing legal representation to the poor without overhauling the existing criminal justice system, and operating privately to maintain independence and avoid being hampered by political considerations (pp. 60-62). The Voluntary Defenders...