This week in the news: As the WHO declares the coronavirus (COVID-19) a pandemic, many are asking what measures are being taken to protect the health and welfare of justice-involved and incarcerated populations as well as staff, correctional officers, public defenders, and others working in the justice system, and more.
March is Women’s History Month and March 18th is Gideon’s Day, the 57th anniversary of the landmark case Gideon v. Wainwright that solidified the right to counsel for individuals whose liberty is at stake and who cannot afford an attorney. These commemorations have more in common than first meets the eye: women have had a distinct hand in the creation and strengthening of our public defense system, and women are increasingly in need of effective public defense themselves.
Clara Shortridge Foltz, the first woman to practice law on the West Coast, is a little-known figure, but we have her to thank for the concept of our modern public defender system. Due to the fact that defendants with means would rarely agree to female representation, Foltz represented quite a few indigent defendants. Dissatisfied with the inequities she observed, Foltz presented the idea of public defense at the Chicago World’s Fair, arguing that the right to a presumption of innocence was only possible with competent legal advice. Due to her efforts, Los Angeles opened the nation’s first public defender office in 1913, and the “Foltz Defender Bill” was enacted state-wide in 1921.
While Clara Shortridge Foltz was the first woman to play an important role in American public defense, she was not the last. Here in Washington, DC there is a local legacy of female public defense leaders. In 1968, Barbara Babcock—who later wrote Foltz’s biography—became the first director of DC’s nascent Public Defender Service (PDS), a gold standard for public defender offices in the US. PDS’s trailblazing legacy continued when Cheryl Long became the nation’s first African American woman to direct a public defender office in 1985. PDS’s current director, Avis E. Buchanan, is also an African American woman. She has received multiple awards for her leadership over the past 16 years and in 2015, the Washingtonian recognized Buchanan as one of the city’s most powerful women.
Women—and particularly women of color—remain a minority in many areas of the law today, however. Prosecutor data paints a grim picture; even with substantial gains over the past several years, 95 percent of elected prosecutors are white, 76 percent are men, and only two percent are women of color. In the 141 years after Clara Shortridge Foltz was admitted to the California Bar, California is the only state that has approached gender parity, with women making up 44 percent of prosecutors.
Gender disparities exist for people involved in the justice system as well. Today, women are the fastest growing incarcerated population in the country: between 1980 and 2017, the number of women in prison and jail grew by 750 percent, a growth rate twice as high as men’s. Once again, race plays a role: the incarceration rate for African American women is twice that of white women. A recent federal report found disturbing evidence of gender disparities in punishment within prison as well: for the same rule violations, women are disciplined two to three times more often than men. Transgender women are five times more likely to be sexually assaulted by corrections staff than the greater incarcerated population. Unfortunately, women’s incarceration has particularly wide-reaching ripple effects: 80 percent of women in jails are mothers, most of whom are primary caretakers. As the number of incarcerated women rises, these familial consequences multiply.
Effective representation can help counteract these consequences. With roughly four out of five defendants in the US unable to afford a private attorney, this responsibility falls largely on the shoulders of public defense. As the Prison Policy Initiative stressed in their 2018 recommendations to address gender disparities, “Public defense is particularly important for women who have limited financial resources to afford private attorneys.”
There is much to celebrate on the 57th anniversary of Gideon v. Wainwright, including the work of several female public defense pioneers. As we also mark Women’s History Month, however, let’s remember that as we continue to push for an effective and empowered public defense system, women need good public defense more than ever.