Chief Judge E. Barrett Prettyman and the Creation of Washington, D.C.’s Public Defender System

August 2022 marks the 151st birthday of Judge E. Barrett Prettyman and the 51st anniversary of his death in 1971. Fifty-one was also a key number for Prettyman’s tenure on the United States Court of Appeals for the District of Columbia Circuit where he advocated for important reforms for what many consider the nation’s 51st state, Washington, D.C. “Prettyman has made a special contribution to the District as a city – watching over the needs of local courts and those who appear before them hoping for justice,” observed the Washington Post in 1960, characterizing his dedication to the capital as “high level lobbying for the District’s interests.”[1]

The E. Barrett Prettyman Papers, located in the Manuscript Division, document his tenure as chairman of the Judicial Conference of the District of Columbia. Prettyman was known as much for the judicial reforms he pursued as for the decisions he penned, a trend exemplified in his efforts to enact a public defender system for the city’s indigent clients. That law, passed in 1960 and sometimes known as the Legal Aid Agency Act, served as a significant step in the creation of the federal defender system, which remains in operation today.[2] Prettyman’s efforts also influenced the Criminal Justice Act of 1964 (CJA), which for the first time “assured professional legal counsel in federal courts by paying an hourly fee for court appointed lawyers.”

The Judicial Conference of the United States, comprised of federal judges and presided over by the chief justice of the Supreme Court, determines policy for the federal courts. Each federal district has its own judicial conference. Prettyman’s papers chronicle his work as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and his service as chairman of the D.C. Circuit’s conference from 1958 to 1960. During his tenure, Prettyman worked on issues of interest to the city’s judges and lawyers but also its citizenry, including reform of capital punishment and the juvenile courts; representation for indigent clients; the creation of the CJA; and an exploration of the Metropolitan Police Department’s training procedures. He also became the first judge to organize a judicial conference on sentencing.[3]

Appointed to the court in 1945, Prettyman heard cases there for 26 years, served as chief judge from 1958 to 1960, and assumed senior status in 1960. His service ended with his death in 1971.

Throughout his judicial career, Prettyman exhibited a concern for economic factors influencing the law and its enforcement.  His efforts to provide legal representation for poor clients is well documented in his papers.

In 1958, for instance, the American Bar Association for Washington, D.C., commissioned a report regarding legal aid for indigent defendants. The report’s recommendations span twenty-five pages. Among the suggestions was the creation of a new private legal aid organization to represent indigent clients in civil and criminal matters. The report proposed the organization be led by a salaried director who reported to a governing board appointed by a panel of judicial and civic leaders. It would be staffed full time by “at least 14 legal aid attorneys” with 25 volunteers to assist. The report also recommended an annual budget of approximately $225,000.[4]

The annual report/brochure for the Legal Aid Bureau of Washington D.C. in 1958

Annual report/brochure for Washington, D.C., Legal Aid Bureau, 1958. Box 5, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress.

At that time, the city’s indigent clients were assigned lawyers working in private practice on a case-by-case basis. A Legal Aid Bureau served as the largest organized group of these volunteer lawyers, but they attended only to civil matters. According to the Bureau, its thirty lawyers represented clients in 6,601 civil cases in 1958, describing those it represented as laborers, abandoned mothers, and debtors sent to the Bureau “by the Courts, employers, friends, social workers, and others.”[5]

Prettyman noted that the city’s legal system at the time, which consisted of both federal and municipal courts, made roughly “7,500 appointments of counsel” annually, writing, “We have a splendid Legal Aid Bureau, the Bar Association has a fine Legal Assistance Office, and the members of our bar have borne an increasingly difficult burden. But all this has been on a volunteering basis. The load has grown too big for volunteer handling.” The District’s U.S. Attorney agreed, adding that though the city did not lack for competent lawyers, the system for indigent clients was growing more unsustainable every day. “Approximately two-thirds of defense counsel are court appointed,” he wrote, “and in many instances drawn from the ranks of those who specialize in other fields than the criminal law.”[6]

While other cities encountered similar issues, the problem in Washington, D.C., was more acute.  “Here the great percentage of those prosecuted are comparable to offenders handled in Police or State Courts elsewhere,” wrote the executive director of the Washington Criminal Justice Association. “As a matter of fact, in the United States District Court for the District of Columbia about 90% of the defendants are charged with D.C. Code violations. In no other Federal District could these persons be tried in Federal Court.”[7]

Though different by degree, Washington, D.C., was not totally unique in this regard. Some urban areas utilized similar legal aid societies financed by private funds or voluntary defender organizations to represent individuals in federal courts. While many state courts had adopted various systems for the appointment of counsel involving indigent cases, it was not federally mandated, remained variable in quality, and was often reserved for capital offenses.[8] It took Supreme Court Justice Hugo Black’s majority decision in Gideon v. Wainwright (1963) and the 1964 Criminal Justice Act to cement the right to counsel into national law.

When setting up the local judicial conference to study the problem, Prettyman pointed out that this issue had “plagued the bar for generations.” Under Prettyman and chairman Milton King, the District’s judicial committee lobbied for legislation to address the issue, recommending from the outset “a sizable, permanent, paid staff of defense lawyers.”[9] The committee, which included two former senators, a “key member of the House District Committee,” and a former solicitor general, gave voice to the interests of residents who lacked both home rule and any form of elected congressional representation. The latter came in 1970 with the creation of a non-voting seat in Congress and the former in late 1973 with the passage of the District of Columbia Home Rule Act.

Report of the Commission on Legal Aid of the Bar Association of the District of Columbia, October 1958. Box 17, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress.

Under Prettyman’s guidance and King’s leadership, the judicial conference consistently pushed for reforms, supporting new legislation and lobbying Congress on its behalf. Admittedly, the conference’s only real power flowed from its ability to address members of Congress, but it was able to frame arguments and shape opinion. Attorney General William P. Rogers characterized the conference’s power of persuasion as “instrumental” in regard to both public and congressional opinion.[10] Despite failures to pass bills endorsed by the conference in 1959, by the following year these efforts began to bear more fruit, resulting in the passage of Public Law 86-531, known more commonly as the Legal Aid Agency Act.

Signed into law on June 27, 1960, the Legal Aid Agency Act contained several, though not all, of the provisions outlined in the 1958 report, including the creation of a Legal Aid Agency headed by a salaried director who was to be appointed by the Board of Trustees of the Agency.[11] However, the agency’s annual budget was initially limited to $75,000, well below the $225,000 recommended in the 1958 report. Among other issues, adequate funding for public defenders would become a persistent weakness of the system which emerged after the passage of the CJA.

Today, the E. Barrett Prettyman Courthouse, part of the Judiciary Square and Municipal Center complex, houses the United States District Court for the District of Columbia, the United States Court of Appeals for the District of Columbia Circuit, and the United States Foreign Intelligence Surveillance Court. Although the courthouse opened in 1952, it was renamed after Prettyman in 1997, a fitting memorial to a chief judge who cared for the city’s residents and their legal rights as he did for the nation’s jurisprudence.

The finding aid to the E. Barrett Prettyman Papers was recently revised to improve the description of Prettyman’s case files. The collection is also featured in “The Federal Paper Chase: Judges’ Papers in the Manuscript Division.”

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[1] John P. McKenzie, “Prettyman Steps Down Friday As Appeals Court Chief Judge,” Washington Post, October 18, 1960.

[2] Jeffrey Brandon Morris, Calmly to Poise the Scales of Justice: A History of the Court of the District of Columbia Circuit (Durham, NC: Carolina Academic Press, 2001).

[3] Ellen Hoffman, “Judge E. Barrett Prettyman Dies at 79,” Washington Post, August 5, 1971; McKenzie, “Prettyman Steps Down Friday As Appeals Court Chief Judge”; James Clayton, “Judicial Conference Fills Need in D.C.,” Washington Post, May 24, 1959.

[4] Report of the Commission on Legal Aid of the Bar Association of the District of Columbia, October 1958, Box 17, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress; Geoffrey T. Cheshire, “A History of the Criminal Justice Act of 1964,” Federal Lawyer 62, No. 9 (October/November 2015): 69. Though specific to the capital, the 1958 report was not the first to advocate for the creation of a public defender system. In 1945, the Judicial Conference approved a report by New York City Circuit Court Judge Augustus N. Hand which recommended “the appointment of salaried federal public defenders.”

[5] Thomas S. Raysor to James C. Davis regarding McMillan Bill-H.R. 5889 Legal Aid to Indigents, May 6, 1959, Box 5, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress.

[6] Oliver Gasch to James C. Davis regarding McMillan Bill-H.R. 5889 Legal Aid to Indigents, June 18, 1959, Box 6, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress.

[7] Statement by L. Clark Schilder, Executive Director of Washington Criminal Justice Association on H.R. 5889, June 16, 1959, Box 6, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress.

[8] Cheshire, “A History of the Criminal Justice Act of 1964,” 69.

[9] E. Barrett Prettyman, statement on the Judicial Conference of the District of Columbia Circuit Committee on the Representation of Indigents, 1958, Box 17, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress.

[10] Clayton, “Judicial Conference Fills Need in D.C.”

[11] Public Law 86-531 aka The Legal Aid Agency Act, 86th Congress, H.R. 10761 June 27, 1960, Box 18, E. Barrett Prettyman Papers, Manuscript Division, Library of Congress.

 

2 Comments

  1. Wallace J. Mlyniec
    August 3, 2022 at 4:03 pm

    Judge Prettyman’s efforts regarding the need for strong independent criminal defense lawyers made their way into law schools as well. In 1960, through the efforts of the Judge’s former clerks and the Dean of Georgetown Law School, the E. Barrett Prettyman Internship program was created to train recent law school graduates to defend indigent people accused of crime. That program at Georgetown preceded the Gideon decision and continues today. It has been recognized as a model for legal training in criminal defense and is the forerunner of Georgetown’s renown clinical legal education program.

    • Ryan Reft
      August 5, 2022 at 10:46 am

      Thanks Wallace,
      Yes, and I believe a portion of Prettyman’s papers explore this. Thanks again!

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