FREE JUSTICE: A HISTORY OF THE PUBLIC DEFENDER IN TWENTIETH-CENTURY AMERICA

By Sara Mayeux

This spring, graphic images of a white police officer digging his knee into George Floyd’s neck served as a catalyst to renew the mass social movement against police violence and racism that has come to be known as Black Lives Matter. After the highly publicized police killings of Breonna Taylor, Tony McDade, and Rayshard Brooks, protests continued into the summer and fall. These protests have been large in size and radical in their demands. Just a few years ago, in the wake of Michael Brown’s death in Ferguson, Mo., modest calls to reform the police and implement federal consent decrees seemed almost revolutionary to many Americans and were the primary aim of many marching in the streets. Today, calls to defund the police have become the central demand. For so many, there is no fixing today’s system of policing. It needs to be abolished.

But the police are only one part of a larger problem, and the Movement for Black Lives has issued a critique of the broader legal system, which reinforces a regime of police brutality and punishes poor communities of color in other insidious ways. The criminal courts, for instance, are often viewed as potential sites of justice, where victims can go to seek redress and criminals are held accountable. And in the aftermath of police killings, community members have frequently demanded that prosecutors file charges against the officers involved and, if by some miracle prosecutors did, hoped for convictions by a judge or jury. But as a number of activists have argued, criminal courts more often than not reach verdicts that legitimate police abuse, and they do so while expending the bulk of their resources to control and exploit poor people of color through pretrial incarceration, probation requirements, fines, and fees. For this reason, the Movement for Black Lives’ 2020 policy platform includes a demand for an “end to pretrial detention and money bail.” The struggle to abolish the police is intimately linked with an urgent need to address the injustices of the criminal courts and other punitive systems.

Floyd’s life illustrates how police misconduct operates alongside criminal court control. Growing up in public housing in Houston, he was swept up into the War on Drugs, like so many other poor Black men of his generation. In 2004 he was arrested on drug charges and taken to court. After months spent fighting his case, he took a plea deal to serve 10 months in jail. But according to reporting from The New York Times, the evidence used to convict him may have been fabricated. Gerald M. Goines, the police officer who arrested Floyd, is under investigation for lying in numerous drug cases during his career, including about Floyd’s alleged transaction. At the time of Floyd’s sentencing, however, the prosecutors did not scrutinize the validity of Goines’s evidence, unfairly upending Floyd’s life and the lives of scores of other defendants.

Recent books like Issa Kohler-Hausmann’s Misdemeanorland, Mona Lynch’s Hard Bargains, and Nicole Gonzalez Van Cleve’s Crook County reveal just how common such injustices are in the criminal courts. Through damning ethnographic accounts, they show how today’s prosecutors rely on and cover for police abuse, how judges look the other way, and how defendants are pressured to accept guilty pleas or consent to behavioral modification programs despite maintaining their innocence.

For many poor defendants of color caught up in this system, public defenders are the last line of defense. Appointed by the state to represent those who cannot afford an attorney, public defenders can serve as a check on the power of a police department and a prosecutor’s office that are often institutionally aligned. In fact, it is the post-conviction unit of the Harris County Public Defender’s Office in Houston that has taken the lead in challenging several of the drug convictions stemming from Goines’s false testimony. But much of the existing scholarship commonly portrays public defenders either as complicit in perpetuating injustice or as struggling ineffectually against high caseloads, low salaries, and too much prosecutorial power. How might we make sense of the seeming promise of the public defender and the evident limits of public defense in practice?

In her new book, Free Justice: A History of the Public Defender in Twentieth-Century America, Sara Mayeux provides a definitive history of this important yet conflicted institution, documenting along the way how liberal legal reforms can function to legitimate material inequalities and distract from more robust commitments to social justice. Taking readers from the Progressive Era to the height of the Cold War, Mayeux shows the stages by which influential reformers crafted our current indigent-defense system.