Gideon v. Wainwright Was a Landmark Decision, but Women Invented the Idea of the Public Defender
As a public defender — and a person fighting to expand and empower public defense nationwide — March is always a big month for me. March 18 is the anniversary of the Supreme Court’s landmark Gideon v. Wainwright decision, when the justices unanimously said that the US Constitution requires states comply with the Sixth Amendment 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, printed carefully 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 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 was just 15 years old when she eloped with a Union soldier. 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, 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” to be a lawyer. When the bill passed and the governor refused to sign, Foltz burst into his office and convinced him to retrieve the document from the discard pile, securing his signature just before the midnight deadline.
Foltz passed the bar and tried to enter law school 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, 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 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.
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 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 opened its doors.
As Foltz fought for “free justice” 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. Vanderbilt professor Sarah Mayeux, author of a recent history of public defense, points out that Batlan’s work 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 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 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 and collaborative defense 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 of 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” of contact with our punishment system, which is a fancy way of saying that arrest and prosecution destroys people’s health (and mental health, in particular), housing, social ties, ability to earn a living, creates generational harm, and undercuts our collective safety by attacking the very things most likely to lower crime. 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 — 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, 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.
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. 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. “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, a nonprofit whose mission is to empower and transform public defense in America.