Inventing the Public Defender

50 Pages Posted: 2 May 2006


Clara Foltz, one of the first women lawyers in the United States, was also the first to propose a public defender. Her radical idea that the state should provide a defense for those it accuses was born from Foltz's experiences as a jury lawyer facing unfair prosecutors, and from her involvement with other reform movements such as suffrage and populism. She marshaled creative constitutional arguments and a rights-based presumption of innocence in support of her conception.

Foltz's public defender was a capable jury lawyer, the equal of the public prosecutor in resources and respect. As actually enacted in the Progressive Era twenty years after Foltz first proposed it, the public defender was less concerned with individual advocacy than with more generalized fair process. The history of the public defender reveals the tension between the models of zealous advocate and responsible public official, a tension both present at the creation and perhaps inherent in the office itself.

Suggested Citation

Allen Babcock, Barbara, Inventing the Public Defender . American Criminal Law Review, October 2006; Stanford Public Law Working Paper No. 899993. Available at SSRN:

Barbara Allen Babcock (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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