Gideon's Cold War Origins

Abstract

Gideon's Cold War Origins Amanda Bell Hughett (bio) Sara Mayeux, Free Justice: A History of the Public Defender in Twentieth-Century America. Chapel Hill: University of North Carolina Press, 2020. vii- 271 pp. Notes, bibliography, index. $26.95 In 1963, the Supreme Court in Gideon v. Wainwright declared in a rare unanimous decision that criminal defendants who cannot afford to hire a lawyer have a right under the Sixth Amendment to an attorney paid for by the state. It was an "obvious truth," Justice Hugo Black wrote for the Court, "that in our adversary system of criminal justice any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him."1 At the time, Gideon was widely applauded by the press, public, and leaders of the legal profession. The following year, in 1964, Anthony Lewis, a reporter for the New York Times, canonized Gideon as one of the most revered court decisions with the publication of his book-length account of the case, Gideon's Trumpet. Lewis depicted Gideon as a crucial step toward realizing the Constitution's promise of equal justice under the law. Today, however, articles bemoaning the struggles of overworked and underpaid public defenders—who now represent eighty percent of the accused—regularly appear in the news.2 Public defenders, it seems, are no match for better-resourced prosecutors. Defenders manage hundreds of cases, making it impossible for them to dedicate sufficient time to each of their clients. In a rush, they often encourage clients to waive their right to a trial and accept guilty pleas in hopes of getting the lightest possible sentence, even when clients maintain their innocence or claim police misconduct. As sociologist Matthew Clair revealed in his recent ethnographic study Privilege and Punishment (2020), public defenders' inability to meet their clients' needs shapes the attorney-client relationship, leading clients to see their attorneys as adversaries rather than advocates. To them, public defenders seem like another cog in the machinery of mass incarceration. What happened? What accounts for the gap between Gideon's promise and current practice? [End Page 96] Sara Mayeux's Free Justice (2020) answers these questions by illuminating the ideological terrain that gave rise to the idea of public defense. At the center of her story are elite lawyers who, she shows, played an outsized role in shaping the nation's approach to indigent defense. These men, educated at prestigious law schools and employed at corporate firms, occupied the broad liberal middle of twentieth century politics. They took it upon themselves to speak as the voice of the legal profession through local and national bar associations. Mayeux argues that it was their "deceptively partial" embrace of public defenders during the mid-twentieth century that created many of the conditions that continue to plague contemporary defenders' offices (p. 16). While popular accounts tend to depict Gideon's promise as later betrayed by conservative judges and tough-on-crime politicians, Mayeux demonstrates that today's problems were baked in from the beginning. They are the result of choices made by some of Gideon's most influential champions: members of the legal profession. Free Justice is first and foremost a cultural history of the legal establishment, its values, and its shifting conception of lawyers' role in a liberal democracy. But it also speaks, albeit indirectly, to the body of scholarship concerning liberals' role in the construction of today's punitive criminal justice practices. Recent works on the carceral state—most notably William J. Stuntz's The Collapse of American Criminal Justice (2011), Naomi Murakawa's The First Civil Right (2014), Elizabeth Kai Hinton's From the War on Poverty to the War on Crime (2016), and Max Felker-Kantor's Policing Los Angeles (2018)—make clear that the post-1960s punitive turn was a bipartisan project. Not only did liberals seek to outmatch conservatives by proposing "tough" legislation of their own, but their focus on proceduralism and professionalization helped legitimize and further entrench the criminal justice system's race and class inequalities. By making the system more rights-based and rule-bound than it had been in the past, liberal...