Free-ing Criminal Justice

Abstract

In the epilogue to her thought-provoking book, Free Justice: A History of the Public Defender in Twentieth-Century America, the legal historian Sara Mayeux turns to Polk County v. Dodson, a case which for her “enshrined … the version of the public defender that the legal profession had settled upon by the time of Gideon,” that of the public defender as “the state’s adversary.”

Mayeux’s take on the Court’s view of public defenders is spot on, to be sure. And the history she tells—of how the public defender, once regarded “as a socialist-style project,” became “a quintessentially American institution”—is illuminating. And yet as I read her book, I found myself thinking of other stories, stories that open up Mayeux’s already impressive book.

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.” 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.

Keywords: public defense, public defenders, criminal justice, race

JEL Classification: K14