[When we celebrate the 60th anniversary of the Gideon ruling this
year — recognizing the right to counsel conferred by Gideon’s
persistence and Justice Hugo Black’s resolve — we are erasing a
far longer and richer legacy: the history of the women who invented
the idea of the public defender. ]
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GIDEON V. WAINWRIGHT WAS A LANDMARK DECISION, BUT WOMEN INVENTED THE
IDEA OF THE PUBLIC DEFENDER  
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Emily Galvin-Almanza
March 17, 2023
Teen Vogue
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_ When we celebrate the 60th anniversary of the Gideon ruling this
year — recognizing the right to counsel conferred by Gideon’s
persistence and Justice Hugo Black’s resolve — we are erasing a
far longer and richer legacy: the history of the women who invented
the idea of the public defender. _

,

 

As a public defender — and a person fighting to expand and empower
public defense [[link removed]] nationwide —
March is always a big month for me. March 18 is the anniversary of the
Supreme Court’s landmark _Gideon v. Wainwright_
[[link removed]] decision, when the justices
unanimously said that the US Constitution requires states comply with
the Sixth Amendment
[[link removed]] and
provide people with a lawyer when they’re criminally accused and
unable to afford counsel. 

In March, we remember the story of Clarence Earl Gideon, accused of
stealing some beer and change from a pool hall in Florida, who asked
the judge in his case for a lawyer. The judge refused to give him one
— at the time, Florida law allowed for counsel to be assigned only
in death penalty cases. So, after being convicted, Gideon sent a
handwritten petition
[[link removed]], printed
carefully [[link removed]] in
pencil, to the US Supreme Court, which granted a review (and appointed
a lawyer to argue his petition before the justices). Sixty years
later, people are still reaping the benefits of Gideon’s pencil: An
overwhelming majority of people accused of crimes in America
[[link removed]] can’t
afford a lawyer and are instead assigned a public defender. 

But March is also Women’s History Month, and as a woman defender,
every time Gideon’s Day rolls around, my mind turns to our own
forgotten history. When we celebrate the 60th anniversary
of the _Gideon_ ruling this year — recognizing the right to
counsel as having been conferred by Gideon’s brave persistence and
Justice Hugo Black’s insight and resolve — we are erasing a far
longer and richer legacy: the history of the women who invented the
idea of the public defender. 

Clara Shortridge Foltz
[[link removed]] was
just 15 years old when she
[[link removed]] eloped
with a Union soldier
[[link removed]].
She bore five children, moved across the country, and ended up a
single mother in San Jose, California, where she got, it seems,
incredibly fed up with being told to sit down and be quiet. In the
late 19th century, women in general were pretty fed up with the status
quo: Foltz, like many of her peers, was interested in fighting for
the right to vote
[[link removed]],
to be employed in any profession, to serve on a jury, and otherwise be
considered a whole human citizen. From the suffrage movement emerged a
new pursuit: With the help of her fellow suffragettes, Foltz got a job
working for an attorney, and became determined to become a lawyer
herself. 

To do this, though, she had to change the law. She wrote a bill that
changed the California law allowing “white male” lawyers into a
law that allowed any “citizen or person”
[[link removed]] to
be a lawyer. When the bill passed and the governor refused to sign,
Foltz burst into his office
[[link removed]] and convinced
him to retrieve the document
[[link removed]] from
the discard pile, securing his signature just before the midnight
deadline. 

Foltz passed the bar and tried to enter law school
[[link removed]] at
Hastings College of Law, but was bullied by her male classmates. After
two days of classes, she was told she could no longer attend the
school. As a 1976 article in the _Hastings Law Journal_ recounts
[[link removed]],
Foltz and another woman whose admission application was rejected,
journalist Laura de Force Gordon, sued. 

During the subsequent proceedings, they had to endure arguments from
the law school’s counsel
[[link removed]] about
how, as the _San Francisco Chronicle_ put it at the time, women
lawyers shouldn’t be allowed because “an impartial jury would be
impossible when a lovely lady pleaded the case of the criminal.” The
defense also quoted a Wisconsin court’s decision denying a woman
admission to that state’s bar, which said women were only qualified
for “the bearing and nurture of the children of our race and for the
custody of the homes of the world.” In the end, Foltz won, but she
never completed law school because by the time the doors were open to
her, she was too busy practicing law
[[link removed]]. 

Over the course of her career, Foltz racked up many “firsts,”
including becoming the first woman assistant district attorney in
America. And based on her experience fighting for those who had been
excluded, she became a passionate advocate for the rights of people
who had been historically oppressed by society.

This is why, 130 years ago, Foltz showed up at the World’s Columbian
Exposition with a speech and an idea. In an absolutely vicious
takedown [[link removed]] of prosecutorial
and police power, Foltz made what is believed to be the first major
case for public defense in America. She talked about the incredible
power of prosecutors and police to force poor people into the criminal
system, the failed presumption of innocence, and the vast inequity
inherent in letting people buy their way to justice — or to
experience grave injustice if they were without the money to avoid it.
Twenty-one years later, in Los Angeles, the first American public
defender agency [[link removed]] opened its
doors. 

As Foltz fought for “free justice
[[link removed]]” in
California, “organized legal aid began with the founding of the
Working Women’s Protective Union in New York City in 1863,”
according to legal historian Felice Batlan
[[link removed]]. Vanderbilt
professor Sarah Mayeux, author of a recent history of public defense
[[link removed]], points out
that Batlan’s work
[[link removed]] details how
“women ‘lay lawyers’ began serving the poor years before the
organized legal profession got involved.” Unlike their later male
counterparts, these women took a holistic approach to representing
their clients, working on the underlying problems
[[link removed]] that
had given rise to the legal matter, combining social work with legal
work to achieve better outcomes for the marginalized people they
served. 

These women “continued to play a dominant role in legal aid efforts
through the 1940s, whether as lawyers, ‘lay lawyers,’ or social
workers,” Mayeux writes in her review of Batlan’s book. Then when
men began evangelizing the value of legal aid, they “worried that
the perception of legal aid as feminized charity work might undermine
their campaign to secure the bar’s support” and chose to omit
women from their narrative
[[link removed]] of
how legal aid was established in America. 

So, even though what these women were doing — taking into account
the full spectrum of challenges their clients were facing, whether
domestic violence, sexual assault, household debt, or wage claims —
still resembles the most cutting-edge forms of holistic
[[link removed].] and collaborative
defense
[[link removed]] today,
their efforts have been largely erased, replaced by a narrative of
public defense as a gift handed down to us by the Supreme Court —
and only men. 

The loss of this recognition is especially galling when you consider
the full scope of what these women created. Public defense isn’t
just a constitutionally mandated legal service. Criminal courts, at
this point, have touched nearly every corner of American life: Almost
half
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Americans have had a loved one locked up, according to a study led by
researchers at Cornell University, published in 2019. There are over
44,000 documented “collateral consequences”
[[link removed]] of
contact with our punishment system, which is a fancy way of saying
that arrest and prosecution destroys people’s health
[[link removed]] (and mental
health
[[link removed]],
in particular), housing
[[link removed]], social
ties
[[link removed]], ability
to earn a living
[[link removed]],
creates generational harm
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undercuts our collective safety by attacking the very things most
likely to _lower_ crime
[[link removed]].
When people are facing such complex, lasting, and grievous harm, there
is only one person in the whole legal system who is ethically bound to
protect them, keep their secrets, and try to help them walk away with
both their life and future intact: their public defender. 

So if the people closest to the problem are also closest to the
solution
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but farthest from resources — the public defenders are, in a sense,
the people _second_ closest to the problem but most able to speak
without fear of immediate, personal harm. When they’re given the
resources they need, public defense agencies — like the women
serving as lay lawyers over a century ago — can help people
stabilize their finances, find housing, get access to necessary health
care (including mental health and substance use treatment), continue
their education, and land a job. Most importantly, public defense
agencies can use all of these achievements in partnership with their
clients to convince judges and prosecutors that the client should not
be imprisoned, but rather empowered to succeed. In other words, public
defenders may be a more important part of our health, safety, and
economic infrastructure than you thought possible.

When we allow public defenders to be historically underfunded
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however, we undermine our own path toward a better future. We actively
limit the ability our communities have to thrive because we’re
taking away the professionals whose job it is to make every person’s
potential seen, every path to restoration heard. Public defenders get
to hear directly from impacted people every day, which makes them much
more equipped to offer informed, tailored solutions and ideas that
could work better than our endless American cycle of jail and crime
[[link removed]]. 

Fortunately, most public defender agencies are hyperlocal; they are
not part of a federal government program, but rather state and county
agencies, sometimes even local nonprofits
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This means that you, as an ordinary citizen, have an opportunity to
demand they be empowered and resourced by speaking to your local
county board of supervisors, state lawmaker, or governor’s office.
This isn’t a Washington issue; it’s a kitchen-table issue that
people can take up in their own hometown. Meaningful public defense
protects our collective health, safety, and the integrity of our
overall potential. 

Foltz’s vision was grand: “Let the criminal courts be reorganized
upon a basis of exact, equal, and free justice,” she said
[[link removed]]. “Let our country be
broad and generous enough to make the law a shield as well as a sword;
let the citizen understand that his flag is his protection in his own
home as well as when his foot is on foreign soil, and there will come
to the State, as a natural sequence, all those blessings which flow
from constitutional obligations conscientiously kept and government
duties sacredly performed.” 

Today, it is still on us to prevent Foltz's legacy from being erased
— and to fight for the “free justice” she envisioned over a
century ago. 

_Emily Galvin-Almanza practiced as a public defender in California and
New York. She is the co-founder and Executive Director of Partners
for Justice [[link removed]], a nonprofit whose
mission is to empower and transform public defense in America._

_This piece was published in coordination with Zealous
[[link removed]], an organization working to amplify
the perspective of public defenders. Learn more about the history of
public defense at This Is Defense [[link removed]]._

* public defenders
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* criminal justice system
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