The Origins of the Indigent Defense System


Between 1870 and 1910, the population in the United States grew from forty million to ninety-two million. Most of the growth was concentrated in cities, which experienced an initial massive influx of German immigrants, and a later wave of immigrants of predominantly Southern and Eastern European origin. The new immigrant class became a dominant concern of those interested in maintaining the existing social order. Two approaches were envisioned to achieve this end: 1) Americanize the immigrant poor through existing social institutions by promoting confidence in the “impartiality of the administration of justice” and instilling loyalty to a government that “afforded to all classes the equal protection of the laws;” and, 2) discipline and control the immigrant class through the administration of criminal justice.

The professional elite had, for some time, “fretted over mounting evidence of public discontent with the legal system” and perceived “social disintegration.” The private bar was, “to a greater and greater extent, failing to meet its self-imposed obligation to the poor.” Their problems “engender[ed] a mass of litigation that strained the administration of justice beyond the breaking point.”‘ The elite were concerned that the poor, clustered in populous and congested cities, would become convinced “that they were being denied redress, protection, and equality before the law . . . and were inconsequence being oppressed and placed at an unfair disadvantage before our courts of justice.” Many thought that the failure of the legal system to secure impartial laws and an equal administration of justice would result in “adrift toward communism, revolution and anarchy.”

The fear of social unrest led the civic elite to support the creation of private legal aid agencies that would provide civil legal services to the immigrant and working class poor. These agencies sought to ameliorate the living conditions of the poor in a free market economy by assisting in the recovery of unpaid wages, and protecting individuals against loan sharks and unscrupulous landlords. The proliferation of legal aid agencies dramatized the apparent fairness of the American legal system, curbed the threat of social unrest, and legitimated the existing social order.

The fear of social disintegration found expression in the efforts of those who sought “to make criminal law effective to secure social interests.” Elite lawyers contended that the new immigrant class brought with it a criminogenic element. This fear was translated into the actions of law enforcement; the consequence, reformers reported, was “[a]n avalanche of criminal matters” that disproportionately affected those of foreign origin. The “crime wave” intensified a widespread feeling that the administration of criminal justice “should do more to criminals and less for them.”

The rise in immigration and the use of the criminal sanction in relation to the foreign born focused reformers’ interest on the criminal justice system’s ability to efficiently process indigent criminal defendants. Reformers argued that “technicalities in procedure . . . stimulate[d] the increase of crime” and enabled “guilty persons [to] escape punishment.” In response, they proposed the abolition of the grand jury, a restriction on defendants’ assertions of the right to remain silent and the presumption of innocence, an increase in the judicial power to marshal evidence at trial and comment upon it to the jury, and the introduction of the majority verdict. The elimination of court-as-signed private attorneys in criminal cases, and their replacement by cost-efficient staff attorneys from public and private defender agencies, became an integral plank in the reform platform.

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