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In June, the Sixth Amendment Center published a report, “The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services,” which shines new light on Illinois’ indigent defense system—and its inability to live up to constitutional standards.

Commissioned by the Illinois Supreme Court, the Sixth Amendment Center (“Center”), a non-partisan organization in Boston, conducted a statewide evaluation of public defense services provided to indigent adult defendants at the trial level in Illinois. The Center looked at nine counties across Illinois—from the least populous (Hardin) to the most populous (Cook)—to understand how each structures its public defense services, and whether these services meet the constitutional requirement to provide effective assistance of counsel at all critical stages of a case to people facing a potential loss of liberty in a criminal or juvenile delinquency proceeding.

This post will briefly highlight the Center’s major findings and will then zero in on the Center’s findings regarding the Cook County Public Defender. In particular, the report notes areas where funding for the Cook County Public Defender is inadequate—an issue especially relevant now, as budget season in Cook County gets underway.   

SUMMARY

The Center’s main finding is that Illinois’ structure of public defense services is decentralized and lacking in oversight.

Illinois counties with a population greater than 35,000 residents are required to have a public defender, while counties with smaller populations can choose to establish a public defender office. According to the report, there are 60 counties in Illinois where the county government decides whether to have a public defender at all (p. 140). The state of Illinois has delegated its constitutional obligation in this regard to county boards and circuit court judges and has no oversight structure whatsoever (no state commission, state agency, or state officer) to ensure that these county boards and circuit court judges are actually meeting the state’s constitutional obligations under the Sixth Amendment. Practically, such delegation means this: in many counties, the county boards are the ones who decide whether to have a public defender (PD) in the first place and how much to pay the public defender, since the counties are primarily responsible for funding public defense.

County boards also decide whether to have a full-time or a part-time public defender and whether to pay the public defender’s overhead expenses and case-related expenses or whether to require them to pay these costs out of pocket (which is often the case in counties with a part-time public defender who operates out of their private law offices). Part-time PDs usually receive a set annual salary for their public defense work but are required to represent as many indigent defendants as the county has; in counties with part-time PDs, the public defender is allowed to maintain their private law practice at the same time. Effectively, this means they are often forced to choose between their public defense work and their private work; while their public defender salary is set, the annual income they can accrue through private work is not, and so a part-time public defender is indirectly incentivized to spend more time on their private practice.

It should be self-evident from the above that Illinois’ structure for public defense services leaves public defenders deeply intertwined with—or, perhaps it is more accurate to say, at the mercy of—the county government and the circuit court judges. The county’s circuit court judges decide whether assistant public defenders and support staff, such as investigators, are necessary and the county board decides how much to pay them. Further, in many counties, circuit court judges are the ones who have hiring and firing power over the public defender—and they may fire the public defender anytime and for no reason at all. Public defenders are at the mercy of the county board when it comes to funding, and they are at the mercy of the circuit court judges when it comes to whether they can keep their job. Or, as the report states, “all indigent defense system attorneys [are] directly dependent for their jobs on remaining in the good graces of the county board and/or circuit court judges who hire them” (p. vii).

Such a structure obviously raises questions about the overall adequacy of public defense funding in Illinois as well as the potential for conflicts of interest and the public defenders’ lack of independence from political and judicial interference. But, since there is no state oversight of this system, it is hard to understand in concrete terms what all of this means across the state—and not just in the nine counties this report focused on. Thus, perhaps the report’s most egregious finding is that when it comes to its public defense system, the state of Illinois doesn’t even know what it doesn’t know.

PUBLIC DEFENSE IN COOK COUNTY

In addition to its overall findings, the Sixth Amendment Center’s report highlights notable issues with the Cook County Public Defender, particularly areas where it is clear that funding for the office is sorely inadequate.

Minimal-to-No Funding for Education and Training:

The Sixth Amendment Center also notes that the Cook County Public Defender’s office has little ability to provide funding to its assistant public defenders and support staff to avail themselves of training opportunities. The Cook County Board provides $40,000 for the Law Office of the Public Defender to support training and education of staff each year, with each attorney at the Public Defender allowed to request up to $550 in such support. PD staff interviewed by the Sixth Amendment Center explained that this $40,000 is quickly depleted each year, leaving most of them without access to that resource. Providing adequate resources for attorney education and training should be a top priority. Cook County should increase funding in this area accordingly.

A hallmark of the United States’ criminal legal system is that every accused person is entitled to accessible, fair, and competent representation. While the Law Office of Cook County Public Defender has a stellar reputation, it is running on fumes.

For fiscal year 2021, the Cook County State’s Attorney’s Office has a budget of $133 million, while the Public Defender’s budget is only $80 million—less than two-thirds, although the Public Defender represents about 80% of people (four out of five) facing prosecution in Cook County. Today there are 9,456 people in Cook County Jail or on electronic surveillance; 74-75% of these people are Black and another 16-18% are identified as Latinx. Funding the Cook County Public Defender is not only an issue of justice, but it is also an issue of racial equity.

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Contributor: Amila Golic is a Public Interest Law Initiative (PILI) Fellow with Chicago Appleseed Center for Fair Courts and a recent graduate of DePaul University College of Law. Amila will join Kirkland & Ellis as an Associate in the fall.