SPRINGFIELD — In 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that every person has a constitutional right to free legal representation in criminal cases, including poor people who are unable to afford a private attorney.
On Tuesday, the 62nd anniversary of the landmark court decision, an Illinois House committee approved by a 10-5 vote a measure that would create a statewide public defender’s office to assist under-resourced county public defenders throughout Illinois.
It’s the first time the bill, dubbed by advocates as the Funded Advocacy & Independent Representation bill, or FAIR Act, has moved forward since a version was introduced last year by Democratic Senate President Don Harmon of Oak Park. But lawmakers in favor of the bill, which is primarily geared toward rural counties, acknowledged it still needs some changes before advancing through the legislative process.
Advocates point to multiple reports from 2019 to 2023 that show about 60% of Illinois counties have no government office of public defense, and instead contract with private attorneys, often part time.
The bill also seeks to address disparities between county public defender’s offices and state’s attorney’s offices. For example, Cook County’s 2024 budget provided about $102 million for its public defender’s office, and about $205 million for its state’s attorney’s office. Also, while Illinois has no statewide office to provide public defenders where they’re needed, its attorney general’s office provides prosecutors around the state as necessary.
“A courtroom is kind of a three-legged stool. You have a state’s attorney, you have a judge, and you have the PD (public defender). And for a long time, the PD was understaffed, underfunded and just in a position that they just, it wasn’t fair,” state Rep. Dave Vella, a Rockford Democrat who is sponsoring the bill, said during Tuesday’s House Judiciary Criminal Committee hearing. “So a lot of times, defendants weren’t getting the defense they needed or deserved.”
“Let’s say you’re in an extremely southern, rural county. And you have a 15-person drug case. You’ve only got one public defender. You’re going to need some help, so this statewide public defender will send some attorneys down there to help with the case,” said Vella, a former Winnebago County assistant public defender.
The bill also calls for the office to establish a recruitment and retention plan to ensure “a skilled and diverse workforce is available to serve clients in every part of the state.” The office would also provide funding “to improve, increase access to, and advance the cause of indigent defense,” the bill says.
After Tuesday’s hearing, Vella pegged the annual cost of operating the state public defender’s office at $1 million or less. If the bill were to pass immediately, those costs wouldn’t kick in for about two or three years while the office gets organized. Vella said the money could come from the state Supreme Court’s budget.
Under the bill, the initial state public defender would be nominated by the Illinois Public Defender Association, a nonprofit educational organization for public defenders, and appointed to a two-year term by a majority vote of the state Supreme Court. Each subsequent state public defender would be appointed to a six-year term by a newly-formed, 11-member state public defender commission.
The state public defender’s office would provide training to county public defenders and maintain a panel of private attorneys available to serve as counsel on a case-by-case basis. The office would also provide county public defenders with expert witnesses, investigators, administrative staff and social service staff.
In her testimony before the committee, Stephanie Kollmann, an attorney with Northwestern University’s Child and Family Justice Center, cited research by her office showing large caseloads for public defenders throughout the state that are “unacceptable” under the Sixth Amendment, which guarantees the right to an attorney for people accused of crimes.
“I work in a law school. Our students really want to go into public defense, many of them,” Kollmann said. “But they can’t enter a profession that doesn’t have jobs open, that doesn’t openly advertise jobs when they are open, that doesn’t train them effectively or have enough space, time and money to do that.”
One goal of the bill, according to Vella, would be to make public defenders more autonomous from the judiciary. Chief judges appoint and remove most county chief defenders, although not in Cook County. Under the legislation, when a vacancy occurs in the position of chief county public defender, the state public defender would nominate a candidate and the state public defender commission would make an appointment through a selection process.
Sharlyn Grace, representing the Illinois Public Defender Association, told the committee she spoke with a chief public defender who is supportive of the legislation but feels they can’t be open about that in the legislative process because they’re afraid their of retribution from their chief judge, who is responsible for their appointment.
“When we have this system that prevents our public defenders from engaging in this conversation about how we can improve public defense and ensure that the state of Illinois meets its Sixth Amendment obligations, that’s something we have a duty to rectify,” said Grace, who works for the Cook County public defender’s office.
State Rep. Patrick Windhorst, the Republican spokesperson for the committee and a former state’s attorney for downstate Massac County, noted several public defenders are opposed to the legislation. Vella responded that “there are a lot of different counties, a lot of different circuits, a lot of different public defenders with ideas about how to get autonomy” from judges.
John Rekowski, a retired public defender from downstate Madison County, agreed that it’s important to insulate public defenders from retribution from the judges they appear in front of but said it’s also important for chief judges to have a working relationship with public defenders, since the judges generally have a good grasp of the legal landscape in the areas they oversee.
He testified the bill should allow for the current system of having the chief judges, in consultation with circuit judges, appoint the county public defenders, while taking away the judges’ power to reappoint them and remove them for cause. That function, Rekowski said, should be reserved for the statewide office.
“That guarantees that the advocate in front of the judge isn’t talking to the person who can fire him,” he testified.
An attorney representing the Illinois State Bar Association testified that while the group supports much of the bill, particularly the provisions where the bill provides more resources and more public defenders, it’s against the judicial appointment power being taken away.
“We just believe that they’re certain parts of the state that are different than the collars and Cook and that need that type of specific judicial involvement with the public defenders,” said the lawyer, David Eldridge.
So far, the bill has three Democratic co-sponsors, Chicago state Reps. Kevin Olickal, Lindsey LaPointe and Kelly Cassidy, who is vice chair of the House Judiciary Criminal Committee.
