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December 15, 2020

Reviewing thoughtfully the a history of public defenders in the United States

Writing in The Nation, Matthew Clair has this new extended review of Sara Mayeux's recent book, Free Justice: A History of the Public Defender in Twentieth-Century America Unequal Before the Law. The review is headlined "Unequal Before the Law: How did we end up with our current system of public defenders?," and here is an excerpt:

In her new book, Free Justice: A History of the Public Defender in Twentieth-Century America, Sara Mayeux provides a definitive history of this important yet conflicted institution, documenting along the way how liberal legal reforms can function to legitimate material inequalities and distract from more robust commitments to social justice. Taking readers from the Progressive Era to the height of the Cold War, Mayeux shows the stages by which influential reformers crafted our current indigent-defense system.

These days, she notes, public defenders are often taken for granted: Their presence in the courtroom, whether effective or not, is the norm rather than the exception.  Yet as recently as the 1950s, public defender’s offices were rare, and they were controversial, viewed by many lawyers and policy-makers as a socialist reform contrary to American values. Most poor people faced criminal charges unrepresented, with a patchwork of private firms and voluntary legal aid organizations stepping in to defend the few deemed deserving of their philanthropy.  By the 1970s, this system of legal representation had changed; the majority of Americans lived in jurisdictions served by a public defender’s office, and legal professionals came to view the provision of so-called government lawyers as a cornerstone of liberal democracy.

Mayeux’s account is cautionary.  She documents how transformations to American legal culture were made possible by the persistent efforts of advocates, but she also marks the detours and missed opportunities in the formation of the public defender system as we know it today, which raises a set of questions about the efficacy of technocratic and symbolic reforms.  As activists and scholars organize in the current moment, her book offers a lesson in both the possibilities and the limits of such reforms in addressing social inequalities in the courts.  The seeming success of the concept of the public defender reminds us that the expansion of rights in one domain cannot rectify social injustice without a corresponding expansion in others.  Fixing the failures of our criminal legal system requires more than the provision of effective legal representation to the poor; it requires a redistribution of power and wealth to the marginalized communities and individuals whom criminal law targets for punishment.

December 15, 2020 at 01:41 PM | Permalink


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