The Early History of Public Defense

From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book

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This Note discusses the early history of public defense, including its relation to legal aid societies. For a more detailed explanation, see Babcock, Inventing the Public Defender, 43 AM. L. REV. 1267 (2006) available at the WLH website. It explores in depth the sources and arguments for public defense.

General Works on Public Defense

Any history of public defense must start with REGINALD HEBER SMITH, JUSTICE AND THE POOR (1919). Smith mentioned Foltz as an early advocate for the public defender, (see also On-Line Bibliographic Note: Foltz as Founder), but suggested that the idea of a public defender originated in the late eighteenth century, citing BENJAMIN AUSTIN, OBSERVATIONS ON THE PERNICIOUS PRACTICE OF THE LAW 109 n.6, 110 n.4, 111 n.1, 116 & n.1 (1814) (originally published in 1786 under Austin’s pseudonym, Honestus). Austin describes an “Advocate General” for all defendants who would work closely with the prosecutor; this non-adversarial defender seems to be the model of all the earlier versions of public defenders. In the mid-1850’s, the reform publication, Prisoners Friend, called for such an office as an adjunct to the prosecutor. A County Attorney for the Defense of Criminals, 8 PRISONERS’ FRIEND, Oct. 1855, at 58 (published from 1845-1861 in Boston).

Without noting the distinction between Austin’s non-adversarial defender and Foltz’s, Smith cites Foltz’s article, Public Defenders, 31 AM. L. REV. 393 (1897) for the fact that the idea of public defense was “revived and by 1896 legislation pointing toward public defense had been introduced in a dozen states.” Id. at 116. He spells her name "Fultz" and does not otherwise identify her, though his arguments for the need for public defense are taken directly from her American Law Review article.

The other two basic sources on the early history of public defense are A. Mabel Barrow, Public Defender: A Bibliography, 14 J. AM. INST. CRIM. L. & CRIMINOLOGY 556 (1924), and Reginald Heber Smith & John S. Bradway, Growth of Legal Aid Work in the United States, Bulletin of the United States Bureau of Labor Statistics, No. 398, at 57 (1926) [hereafter Smith and Bradway]. These credit Foltz as the founder of the movement and the Los Angeles office as the spur to the development of the public defender during the progressive era. The Barrow bibliography has 110 entries on the public defender, almost all between 1914 when the LA office opened and 1924. See also ESTHER LUCILE BROWN, LAWYERS AND THE PROMOTION OF JUSTICE 253-59 (1938) for the same account.

As impressive as Barrow’s bibliography is, she actually missed a number of the articles because (not being a lawyer) she did not realize that in many places organizations called “Legal Aid Societies” did public defense along with civil representation. The first Legal Aid Society was in New York, a private charity that had started before the Civil War to assist German immigrants. The idea seems to have quickly spread to other cities and all immigrants. KATE HOLLADAY CLAGHORN, THE IMMIGRANT’S DAY IN COURT 479 (1923) noted that in 1916, there were forty-one Legal Aid Societies in thirty-seven cities. Stephen K. Huber, Thou Shalt Not Ration Justice: A History and Bibliography of Legal Aid in America, 44 GEO. WASH. L. REV. 754 (1976).

Relation of Legal Societies to Public Defense

The history of the legal aid societies and their relation to public defense is best explained in JOHN MACARTHUR MAGUIRE, THE LANCE OF JUSTICE: A SEMI-CENTENNIAL HISTORY OF THE LEGAL AID SOCIETY 1876-1926 269-76 (1928) and in Smith & Bradway, at 57 (1926). See A Special Committee of the Association of the Bar of the City of New York and the National Legal Aid and Defender Association; EQUAL JUSTICE FOR THE ACCUSED 43 (1959) [hereinafter EQUAL JUSTICE FOR THE ACCUSED]; HARRISON TWEED, THE LEGAL AID SOCIETY: NEW YORK CITY 1876-1951 7 (1954); J. P. SCHMITT, HISTORY OF THE LEGAL AID SOCIETY OF NEW YORK: 1876-1912 3 (noting “public-spirited American citizens of German birth” founded the legal aid society in New York in 1876); Arthur V. Briesen, The Legal Aid Society, 1 LEGAL AID REV. 2 (1903) (providing a short history of the New York legal aid society); Smith & Bradway, at 84 (discussing the Voluntary Defenders and the Legal Aid Society). For more on Legal Aid Societies and their relation to public defense, see On-line Note, Comparison of Progressive Defender with Foltzian Model.

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