Following a report that revealed a number of shortcomings in the public defender system in Illinois, state lawmakers are considering a measure that would create a statewide office to provide public defenders with additional support in an effort to ensure indigent criminal defendants receive adequate legal representation.
The source of funding for the proposed Office of Public Defense Trial Support was not specified and its functions were only broadly defined.
But Senate President Don Harmon said in an interview that his goal for the legislation he filed on Thursday is to promote further negotiations with criminal justice reform advocates, resulting in a version that could be passed by the Democratic-controlled General Assembly before its spring session is scheduled to end on May 24.
“With our increased emphasis on a fair criminal justice system, it’s critical that defendants who can’t afford counsel have access to a public defender,” said Harmon, an Oak Park Democrat. “And this isn’t the end of the puzzle. It’s still the beginning. But we want to make sure that resources are being put in place so that no one lacks adequate or effective counsel.”
The public defense legislation is an initiative of the Illinois Supreme Court, which in 2021 commissioned a study that identified a number of shortcomings with the state’s public defense network, ranging from a lack of overall funding to a lack of independence from political influence.
Under Harmon’s bill, the new office would provide unspecified support for public defenders and facilitate “a strategic planning process designed to enhance public defender services and ensure that effective assistance of counsel is rendered regardless of the jurisdiction in which charges are brought.” The bill also says the state Supreme Court “shall provide administrative and other support” through June 30, 2026.
The legislation is meant to address disparities in the resources allotted to county prosecutors and public defenders as well as the lack of public defense resources in rural areas — many of which don’t even have a public defender’s office — compared with larger counties, such as Cook County.
A defendant’s need to be represented by a lawyer quickly became even more essential with the state’s elimination of cash bail, Harmon said.
“If there’s not a public defender, we don’t know who this defendant should call to do the preliminary hearing to see if he or she is going to be released or detained,” Harmon said. “We need a more rapid response network in place to represent those defendants as they’re being charged and as the terms of their detention or release are determined.”
Some advocates say the office proposed in Harmon’s bill could use hundreds of millions of dollars in additional annual funding to function appropriately.
Cara LeFevour Smith, director of the state Supreme Court’s Office of Statewide Pretrial Services, said public defender’s offices rely heavily on support from the county where they’re located, which creates great disparities across the state.
“We have heard from defenders who have to buy their own legal pads, buy their own pens and file cabinets, do their own filing,” she said. “Justice looks very different in Alexander or Pulaski County than it does in Cook just due to the availability of resources, and so we want to make sure that we’re very deliberate about the planning process and continue to get input on what the system should look like for Illinois.”
Cook County’s 2024 budget provided about $102 million for the public defender’s office, and close to $205 million for the state’s attorney’s office.
The state’s budget provides $10 million for statewide public defense support.
In 1949, Illinois law specified the role of county public defenders. Fourteen years later, the U.S. Supreme Court ruled that the Sixth Amendment of the U.S. Constitution required state courts to provide attorneys to indigent defendants charged with serious crimes.
Criminal justice advocates say Illinois has fallen short in providing many of those defendants with an adequate criminal defense.
Stephanie Kollmann, an attorney with Northwestern University’s Child and Family Justice Center, said public defenders generally don’t have anywhere near the investigative capabilities of county prosecutors.
“There absolutely should not be a difference in your quality of representation based on your ability to pay,” Kollmann said. “Geography and finances should not be driving the quality of representation that you are able to receive. With the degree to which public defender offices are under-resourced, there is no way to provide equitable and constitutional representation in many cases.”
While there is no statewide office to provide public defenders where they are needed, the Illinois attorney general’s office does provide prosecutors around the state as necessary.
Nathan Rowland, who has a private practice in southern Illinois, works as a contract public defender in Hamilton and Gallatin counties, and sometimes fills in as a public defender in Hardin County. In an interview, he talked about the difficulties of his job, describing his voluminous workload. He estimated that 75 to 100 felony cases are filed in Hamilton County annually and that he gets appointed to represent most of those defendants.
His office is 45 minutes away from the Gallatin County courthouse, and a little over an hour from the courthouse in Hardin County, making it a challenge to meet clients regularly in person. At the courthouses, he said he meets with clients in a law library or a hallway.
“We give it our all and we work with what we can and some days it’s like drinking from a fire hydrant,” said Rowland, president of the Illinois Council of Chief Defenders. “The water just sprays by and you cut the best deal you can and move forward. So is it ideal? Certainly not by any stretch of the imagination. Do we need more resources? Absolutely. Do we need more staff? Absolutely.”
While prosecutors have local police and other investigators at their disposal, Rowland said he has to ask the county to appropriate money to hire DNA, fingerprint and arson experts, for example.
He said he has to spend time tracking down experts for his clients’ cases and they usually live quite far away, making it difficult for them to review the evidence.
As the measure now before legislators continues to evolve, Kollmann and other advocates said they would like to see additional staffing support, including forensics specialists, paralegals and other investigators.
The lack of those things can hinder indigent defendants from mounting a full defense, she said.
“People … are pleading (guilty) to offenses that they otherwise would not be pleading to because there … simply are not the resources to gather, review and really fight all of the evidence that exists in their case,” she said.
The 2021 report from the Sixth Amendment Center, which was commissioned by the state Supreme Court, focused on a mix of metropolitan and rural counties: Cook, DuPage, Champaign, LaSalle, Mercer, Schuyler, Stephenson, Hardin and Gallatin. The report noted the state had no oversight structure to assess whether each county had a sufficient number of lawyers with the appropriate training and resources to provide effective counsel at every stage of an indigent client’s case.
“Some attorneys may be assigned to represent indigent clients in every type of case (criminal and civil) of all levels of complexity and severity and yet have little to no prior experience in criminal defense,” the report stated.
It also said public defenders — who are appointed by county government or county judges — are vulnerable to “political and judicial interference” that could impede their ability to represent clients.
Some of the counties evaluated in the report didn’t provide overhead or necessary case-related expenses for effective representation, requiring public defense attorneys to pay for such costs out of their attorneys’ fees, the report notes.
The report also documented a couple of instances — one in LaSalle County and one in Mercer County — in which defendants appeared in court without a public defender.
In bigger counties like Cook, DuPage and Champaign, the report documented excessive caseloads for public defenders. In Champaign County, one lawyer recalled having pretrial conferences with 50 clients one day and 100 the next day.
“There are a number of people who I haven’t spoken with (by their court date),” one lawyer said. “So there’s often a line of up to 50 people waiting to speak with me before court.”
The report’s recommendations included the creation of an independent state public defense commission to issue standards for overseeing trial-level public defense. It also recommended hiring an attorney to be in charge of a centralized office staff to provide training and supervision for public defense systems across Illinois.
According to the report, as of 2021, Illinois was among just seven states that don’t have a state commission, state agency or state officer with oversight of trial-level public defense services in adult criminal cases.
Public defender offices in DuPage and Cook said they supported the basic idea behind Harmon’s legislation, but had reservations over the details.
DuPage County Public Defender Jeff York said has concerns that there wasn’t enough input from public defenders.
“Although we like the fact that people want to help, in my opinion at least, this bill would do damage in some ways and help in some others,” York said. “It’s not just the fact that it’s coming from the court. It seems that we should be much more involved in the process of how this is formed, and I don’t get the impression that that’s how this is going to go.”
Cook County Public Defender Sharone R. Mitchell Jr., in a statement, said he supported increased resources for public defense but said “expanded state funding for public defenders must also ensure independence from judicial and political interference.”
Harmon said the need to take some kind of action is clear.
“Just as someone shouldn’t sit in the county jail for three months because they don’t have $400 to post bail, you shouldn’t sit in the county jail for five days because you can’t get a lawyer to show up to do your first hearing,” he said. “It’s important that we start this conversation in a public way.”
Tribune reporter A.D. Quig contributed.
