Thursday, May 4, 2006

Origin of the Public Defender

Who came up with the idea idea for public defense? Stanford Law Professor says it was Clara Foltz, one of the first women lawyers in America. The abstract for her forthcoming article states:

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.
Barbara Allen Babcock, Inventing the Public Defender, Am. Crim. L. Rev. (forthcoming Oct. 2006). (The whole article may be downloaded free from SSRN.) Another hat tip to Robert J. Ambrogi.

Prof. Babcock is behind one of my favorite websites, the Stanford Women's Legal History Biography Project. There are dozens of biographies in addition to the series of articles Prof. Babcock has written on Clara Shortridge Foltz. UW folks might be especially interested in UW alumnae Lucile Lomen and Bella Weretnikow Rosenbaum.

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