New Article: The Color of Justice

New Article: Alexis Hoag, The Color of Justice, 120 Mich. L. Rev. forthcoming 2021. Abstract below:

In this review of Sara Mayeux’s Free Justice, I argue that one cannot tell a history of public defense without interrogating the political, social, and legal status of Black and other nonwhite people charged with crime. Racism and white supremacy played prominent roles in the development of the criminal legal system and impacted the creation, scope, and trajectory of modern indigent defense. By applying a critical race lens to the history of indigent defense and the development of the right to counsel, my hope is to provide additional insight into why public defense has struggled to deliver justice to the accused. I also use it as a tool to suggest alternative ways to advance justice for poor people ensnarled in the criminal legal system.

Mayeux focuses her account on elite corporate lawyers during the Progressive Era, their philanthropic efforts, and the legal profession’s changing identity. Free Justice unearths the legal profession’s dramatic shift in attitude toward public defense over the course of the twentieth century. Elite lawyers initially viewed public defense as akin to communism or as the socialization of the private bar, but by midcentury they regarded public defenders as exemplars of democracy and “the American way of life.” This dramatic shift, according to Mayeux, enabled most indigent defense delivery models to transition away from elite lawyers’ benevolence and ad hoc services to state financed public defender offices, legal aid societies, and nonprofits.

In Part I, I identify a central tenet of critical race theory and apply it to Free Justice’s utopian framework and Progressive Era notions of criminal conduct, charity, and the legal profession. In Part II, I examine the post-Gideon fallout in under-resourced Black communities, the growth of mass criminalization, and ineffective assistance of counsel jurisprudence through a critical race lens. I conclude the review with thoughts on a different method of delivering justice to indigent people facing criminal charges.