Illinois legislators try again on statewide public defender legislation

After a first effort fizzled over questions of independence, legislators consider more detailed legislation to create a statewide public defender's office.

SPRINGFIELD — Illinois lawmakers plan to make a second push to create a statewide office to help under-resourced public defenders after a previous effort fizzled amid questions over whether the office would remain independent of the judiciary.

Senate President Don Harmon, a Democrat from Oak Park, filed the initial bill to create an Office of Public Defense Trial Support last month, but the two-page proposal provided scant details about how a statewide system would work. In addition, public defenders balked at whether the office could operate independently since the bill was an initiative of the Illinois Supreme Court.

Harmon pulled his bill and supporters went back to the drawing board, coming up with a 42-page bill that was filed Monday. The measure lays out in much greater detail how a statewide public defender would be selected and how the office would assist county public defenders throughout Illinois, although a source of funding still has not been identified.

The goal has been to address the lack of public defense resources in rural areas, many of which don’t even have a public defender’s office, as well as disparities in the resources allotted to county prosecutors and public defenders. In Cook County, for example, the 2024 budget provided about $102 million for its public defender’s office, and about $205 million for its state’s attorney’s office.

The House bill was filed by state Rep. Dave Vella, a Rockford Democrat who once worked as an assistant public defender in Winnebago County. He said the state Supreme Court did a good thing by wanting to give more resources to public defenders, but the problem with the initial bill was that it didn’t resolve issues of judicial oversight of public defenders from the high court and from chief county judges, who appoint those positions.

“It still created a power imbalance where the state attorneys were free to act. The public defenders were subject to judicial fiat,” Vella said of the initial legislation. “We want the public defenders to be just like private attorneys. Like, we want them to be their own firm so they can act in the best interests of their clients. If they can’t do that, like I say, there’s a power imbalance and the system breaks down.”

Under the bill, a state public defender would be nominated by a group “created by and composed of” public defenders in the state. The state Supreme Court would then approve a nominated candidate to a two-year term by majority vote.

When the term is up, a newly-formed state public defender commission composed of 11 members would select a state public defender for a six-year term. The governor would select four of the commission members, the state Supreme Court would choose three and the four state legislative leaders, two from each party, would each get one.

Commission members would be required to have experience defending indigent clients, and cannot have been paid as a judge, elected official, prosecutor, judicial officer or police official within two years of joining the commission.

While the Cook County public defender is appointed to a six-year term by the county’s board president, public defenders in other Illinois counties are appointed by the county’s chief judge with no defined terms. The legislation would create a process for the statewide public defender office to nominate candidates for the county-level public defender positions, and the new commission would make the appointments.

The fact that county public defenders are appointed by judges is a dynamic that can give the judiciary too much control over public defense, Vella said.

“That gives a lot of power over the public defender what they can and cannot do,” he said. “Most of the public defenders I know will do whatever they can for their clients. But you want to take away even the appearance of impropriety.”

The statewide public defender’s office would also provide training to county-level public defenders and support “with the assistance of attorneys, expert witnesses, investigators, administrative staff, and social service staff” and “maintain a panel” of private attorneys to represent indigent clients, according to the bill.

The legislation would allow any two counties within the same judicial circuit to combine public defender’s offices. Now, two adjoining counties can share a public defender in certain situations.

Funding remains an unresolved issue. The current state budget provides $10 million for statewide public defense support, and some advocates have said such a new statewide office could need hundreds of millions of dollars in additional annual funding. As lawmakers continue to negotiate Pritzker’s $52.7 billion budget proposal, it remains to be seen whether there’s room for a robust investment in a statewide public defender program.

Advocates point to a report from the Sixth Amendment Center, which was commissioned a few years ago by the state Supreme Court, which said that 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.

The report, which focused on nine counties, 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.

Pritzker last month acknowledged the busy workloads for public defenders, how they need to be supported and how creating the office would build on other criminal justice reforms passed by lawmakers in recent years that included the elimination of cash bail and other measures in a sweeping law known as the SAFE-T Act. But the governor declined to say how much state funding would be needed to get an office dedicated to supporting public defenders off the ground.

“I don’t think it’d be fair for me to try to estimate what the cost would be. I can tell you for sure that, again, the work that’s on the table for public defenders is greater than the resources that they have available to them,” Pritzker said. “And so, we want to help in every way we can. But as you know, anybody that’s advocating for something in the state budget is always shooting for maybe more than what it is they actually need in this given year.”

Cook County Public Defender Sharone Mitchell Jr. signaled his support for the latest proposal, saying in a statement the system is “in desperate need of structural reforms and increased resources.”

“We look forward to supporting legislation that increases state funding for public defense, establishes necessary workload standards, and includes defenders in the planning, policy-making, and oversight processes,” Mitchell said.