Illinois’ public defender system has a reputation for being compromised and poorly funded. Criminal justice advocates and public defenders have been working to address these issues with new legislation.
The core of Illinois’ public defender problem is the lack of independence. Illinois is one of just seven states with no agency overseeing public defenders. According to a 2021 report commissioned by the Illinois Supreme Court, public defenders in Illinois are appointed and evaluated in ways that compromise their ability to advocate for their clients.
The study found that in every Illinois county except for Chicago’s Cook County, circuit court judges hire public defenders and can fire them at will “for any reason or no reason.” Circuit court judges also decide on funding for public defenders and can refuse or approve requests for additional staff. When private attorneys are appointed to provide defense for clients, circuit court judges choose the attorneys and set the fee. In 60 of Illinois’ 102 counties, the county government can even eliminate the public defender office altogether, again, for any reason.
Counties are entirely responsible for funding public defender offices without state oversight and without state funds. This creates a range of conflicts of interest. For instance, the Illinois Supreme Court report explains that Gallatin County gives its contract part-time public defenders a stipend of $100/month for expenses; if the public defender has to spend more than that, it comes from their own fees. This means public defenders are encouraged to pinch pennies rather than provide a vigorous defense. Similarly, in Hardin, Mercer, and Schuyler counties, public defenders have to pay for administrative support out of their own attorneys’ fees.
Cook County’s system is somewhat superior. The County Board president appoints the public defender for a six-year term, during which time the appointee can only be removed for good cause or dereliction of duty. However, the president can choose not to rehire the public defender, and the county board determines the number and compensation of public defender support staff. So, the public defender’s office is still not truly independent.
Without independence, public defenders may not be able to adequately advocate for their clients or for systemic change, according to Stephanie Kollmann, the policy director of the Children and Family Justice Center at Northwestern Pritzker School of Law.
“When a person is accused of breaking the law, they have a lot of state power stacked against them,” Kollmann said. Police, prosecutors, wardens, clerks—there’s a huge apparatus to prosecute the accused. “And there is only one person in this process, the public defender standing next to them in court, whose job is to defend their rights.”
In Illinois, though, the public defender is dependent on the same system that is working against their client. Judges in Illinois are elected, and in conservative counties especially, voters may have a strong law-and-order bias and little sympathy for defendants.
Judges in such cases have little incentive to provide public defender offices with adequate resources, Kollmann notes. If public defenders complain about these conditions or argue that their caseloads are so heavy they cannot defend their clients, judges can simply remove them. Even knowing such removal is possible can cause public defenders to censor themselves or to try to conduct a defense on the cheap. That means defendants aren’t receiving the best possible defense. And it’s why reform is needed, Kollmann said, so that public defenders can “speak freely about conditions in their offices and workloads and really participate in policymaking with a voice that, frankly, has not been possible for them.”
Illinois state Senate President Dan Harmon recent introduced a bill intended to reform public defense in the state by establishing a new oversight agency. However, there are problems with the process and with the proposal, according to Jeff York, the chief public defender in DuPage County since 2010. York said that the Illinois Supreme Court’s task force making recommendations for reforms is mostly composed of judges and hasn’t been open enough to input by public defenders.
This led, in part, to Harmon’s bill putting authority for reform and oversight with the Administrative Office of the Illinois Courts (AOIC). That means that public defenders will still be controlled by the courts and will still lack independence.
“In my opinion, it doubles down on the problem,” York said.
In the run-up to debate on the bill, public defender offices for Woodford, Massac, Cook, and Grundy counties and numerous others across the state filed witness slips opposing Harmon’s bill.
What might a fully independent public defender’s office look like? The Illinois Supreme Court report suggested looking to other states. Many of Illinois’ neighbors in the upper Midwest, like Indiana, Michigan, and Minnesota, have independent commissions that oversee public defender appointments and contracts for defense with private attorneys.
Even where public defenders have more independence, though, states struggle with funding and staffing. Indiana public defenders, for example, are so short-staffed some lawyers have 55 cases at a time or more. Defendants have to wait half a year or longer for legal help.
University of Wisconsin clinical associate law professor John Gross argues in The Harvard Law Review that this shortage of public defenders has been ongoing for decades and is so pervasive across the nation that it “calls into question the legitimacy of our justice system, our commitment to our constitution, and the role of lawyers in our society.”
Gross suggests that the constant crisis has “a lot to do with the perception that poor people are to blame for their poverty and that people accused of crimes are probably guilty.” Racism plays a part as well. However, it’s worth noting that Illinois has had real successes with criminal justice reform designed to help poor and working-class people. The state last year became the first to abolish cash bail, which means people arrested in Illinois no longer face pretrial incarceration simply because they cannot raise their bond.
Illinois also has taken hopeful steps with public defenders. Thanks to pushback, Harmon pulled his bill, and there is now new legislation by Rep. Dave Vella. Vella’s bill proposes a system in which a panel created by and composed of public defenders would be responsible for nominating a state public defender. Funding mechanisms are still unclear, but the bill would be a major step forward for establishing independence for public defenders.
Given past policy successes and broad agreement on the need for change, Illinois could become a model for public defense systems nationwide just as it’s become a model for changes in cash bail. “What I’m looking for,” York told Prism, “is a way to participate in a process or a plan that would work in a very diverse state.” No matter how the state moves forward, involving public defenders in reform efforts will be crucial to ensuring an independent and just indigent defense.
Illinois also has taken hopeful steps with public defenders. Thanks to pushback, Harmon pulled his bill, and there is now new legislation by Rep. Dave Vella. Vella’s bill proposes a system in which a panel created by and composed of public defenders would be responsible for nominating state public defenders. Funding mechanisms are still unclear, but the bill would be a major step forward for establishing independence for public defenders.
Given past policy successes and broad agreement on the need for change, Illinois could become a model for public defense systems nationwide just as it’s become a model for changes in cash bail. “What I’m looking for,” York told Prism, “is a way to participate in a process or a plan that would work in a very diverse state.” No matter how the state moves forward, involving public defenders in reform efforts will be crucial to ensuring an independent and just indigent defense.
