It seems fitting that having written my earlier post about the psyche of the public defender, I would come upon a piece by Professor Barbara Babcock (Stanford) in the current issue of Criminal Justice Magazine based on Clara Foltz, who first developed the concept of the public defender.
Apparently Foltz was all but forgotten before Professor Mortimer Schwartz (Law Librarian at U.C. Davis) and two law students, Susan Brandt and Patience Milrod, wrote an article about her life that was published in the Hastings Law Journal in 1976. In it they described the truly amazing accomplishments of Foltz, which are summarized at the U.C. Hastings website:
Clara Shortridge Foltz (1849–1934) was the first woman admitted to practice law in California after she proposed and lobbied for the Woman Lawyer’s Bill (1878); argued and won her (and co-plaintiff Laura De Force Gordon’s) lawsuit in the California Supreme Court that forced Hastings College of the Law to admit women (1879); attended Hastings for two years prior to continuing on with her practice and life work; advocated for penal reform that included creation of the California parole system (1893); wrote the model legislation known as the “Foltz Defender Bill” that established the public defender system—adopted by California (1921) and by more than thirty states subsequent; a leader of the suffrage movement in the early 1900s that led to adoption of a California constitutional amendment recognizing women’s right to vote (1911); the first woman district attorney in California (1910); ran (unsuccessfully) in the Republican primary for Governor at age eighty-one (1930); namesake of the Clara Foltz Feminist Association at Hastings College of the Law (1970s to present).
Lest you assume that in order to accomplish such feats, Foltz lived a 19th century life of privilege, the article explains that by age twenty-seven she was a divorced mother of five, responsible for supporting her young family on her own.
After acquiring a criminal practice, Foltz became convinced that an indigent defendant deserved the same quality of representation — “free justice” — that public prosecutors provided for the state: skilled, experienced lawyers with access to investigators and administrative staff. Otherwise, Foltz contended, the accused’s “constitutional presumption of innocence was worthless.” Seventy years before Gideon v. Wainwright, she drafted a model bill that set out the qualifications, salary, and duties of the public defender, and in 1921 the “Foltz Defender Bill” was adopted by the California legislature as well as thirty other states.
While Schwartz, Brandt, and Milrod were researching and writing the first law review article on Foltz, 100 miles away Barbara Babcock was teaching at Stanford Law School. As the first woman appointed to the regular faculty, the first to hold an endowed chair, and the first emerita, Professor Babcock is herself a trailblazer in legal academia. She wrote the first textbook on Sex Discrimination and the Law and took a leave from Stanford to serve as assistant attorney general for the Civil Division in the U.S. Department of Justice under President Carter. More significant to me, however, before she taught law Barbara Babcock was the first Director of the Public Defender Service (PDS) for the District of Columbia, considered the premier public defender office in the United States. She describes her discovery of Clara Foltz as follows:
The time at PDS was the most salient period of my career and it thrilled me when, years later, I learned about Clara Foltz. In a rush of inspiration and dedication I decided to try to establish her place in the legal pantheon as the founder of the public defender. At first I thought I might find her papers with my lawyer investigator skills, but when I saw that they were irretrievably lost, I realized the magnitude of the task and that no one else was likely to take it up. I renewed my resolve to do a full-scale biography and tried to press ahead with it.
When President Clinton was looking to appoint the first woman Attorney General, Professor Babcock turned it down, explaining that she was “committed to finishing a biography of Clara Shortridge Foltz.” After Woman Lawyer: The Trials of Clara Foltz (Stanford 2011) was published last year, Babcock explained:
Nothing I’ve said so far is meant to imply that I have made great sacrifices for Foltz; writing narrative and researching history has suited me—especially because the kind of intense doctrinal scholarship I also like to do went out of style for awhile. I’ve also gained from the intimate relationship of biographer and subject. It’s rare to know another person like I know Clara Foltz ( certainly better than she knew herself ). Most important, and what I’m sure she would like the best about our collaboration, is that as a feminist, a trial lawyer, a public defender, and a professor, I am in a good position to assess and explain her achievement.
I may be a little late to jump on the bandwagon, but I’ve just ordered the book and look forward to reading it. ”My favorite customers,” Babcock has written, “are the women lawyers and the public defenders. They often say ‘thank you, thank you for writing this.’ And I respond: ‘I did it for you.’ ”
Although I have never met Professor Babcock, I feel that in some small way she knows me, too.