The Early History of Public Defense
From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book
Babcock, Inventing the Public Defender, 43 AM. L. REV. 1267 (2006) is readily available on-line at the Women and Social Movements Website and the WLH website. It explores in depth the sources and arguments for public defense. For early history discussed in this Note, see Babcock, Inventing, at nn.46-84.
Any history of public defense must start with SMITH, JUSTICE. Smith mentioned Foltz as an early advocate for the public defender, On-Line Bibliographic Note: Foltz as Founder, infra, 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 Legal Aid Societies did public defense along with civil representation. For more on Legal Aid Societies and their relation to public defense, see On-line Note, Comparison of Progressive Defender with Foltzian Model.
