You Have the Right to Chronically-Underfunded and Overworked Counsel: The need for improved support of public defense in Cook County and beyond.
BACKGROUND
The concept of a public defender is relatively modern in the American legal system. For most of U.S. history, being poor meant defense by an attorney was unavailable to you. That all changed, however, in the seminal case, Gideon v. Wainwright, when the Supreme Court found it to be the “obvious truth” that fair representation was not possible without access to counsel for all accused people (Gideon v. Wainwright, 372 U.S. 335, 344 (1963)). The Gideon Court found the 6th Amendment guarantees the right for defendants to be appointed counsel at public expense if they cannot afford to retain representation on their own. The court later expanded that right in Strickland v. Washington, to say that “right to counsel” was a right to effective counsel—that is, the attorney must be more than merely a warm body with a bar card. Under Strickland, defense attorneys must provide an “objectively reasonable” level of assistance.
Cases such as Gideon and Strickland laid the foundation for public defenders’ offices throughout the nation. The contemporary role of public defenders is the same as private defense attorneys — to support their clients at every stage in the criminal legal process whenever the defendant is facing the potential loss of liberty (Gideon, 372 U.S. at 343). Unfortunately, massive need for public defense services, combined with systemic barriers, has in turn created questions on whether true justice can be achieved for people who can’t afford private counsel. According to the National Legal Aid and Defender Association, approximately 80% of criminal defendants cannot afford a lawyer and are, therefore, entitled a public defender. In Chicago, that number is even higher, with the Cook County Public Defender’s Office representing approximately 85% of adults and 95% of children facing prosecution.
With the level of need so high, it is clear that “crime” is a systemic, often socioeconomic issue. Funding for a robust and well-equipped public defense is absolutely essential, as poverty should never determine whether or not someone’s constitutional rights are protected.
Unfortunately, in almost all American jurisdictions, public defender’s offices are chronically underfunded. Underfunding may force public defenders’ offices to compromise on the quality of representation (competence of attorneys, diligence, communication, attention to conflicts, etc.) that they can provide to their clients, because the means simply are not there. Further, the issue of underfunding has negative impacts on the mental health of and training and supervision available to these public defense attorneys; contributes to an unconscionable caseload; and encourages negative public sentiment and systemic biases toward public defense.
CURRENT COOK COUNTY CASELOAD
As the second largest system in the country, the Law Office of the Cook County Public Defender (PD) employs just over 500 attorneys and 171 additional support staff to assist these attorneys with trial preparation. Unfortunately, the PD’s Office still struggles to meet the demand of the more than 33,000 people facing felony charges in the Cook County Criminal Court system each year—a number exacerbated by the remaining backlog of cases perpetuated by court shutdowns during the COVID-19 pandemic. A 2008 lawsuit filed by former Public Defender for Cook County, Amy Campanelli, revealed that the caseloads at the PD’s Office exceeded national standards by 60% in felony courtrooms and 400% in misdemeanor courtrooms. The lawsuit also revealed that caseloads for many felony attorneys were reaching 100 cases or more—an untenable amount for a single attorney.
It offers a bleak view of the justice system to know that one of the largest Public Defender’s Offices in the country is operating at 400% capacity, while the Chicago Police Department (CPD) receives approximately $1.76 Billion in funding—a figure increasing every year; of the total $1.2 billion the City of Chicago received through federal COVID-19 relief legislation, the CPD received nearly 60%. Likewise, Cook County spent a bulk of its CARES Act funding distributed in February of 2021 ($222 million of the total $429 million) on labor for the Sheriff’s Office. The Cook County Public Defender’s Office, however, received just a small fraction of the CARES Act relief funding provided to other Cook County agencies.
The Cook County Public Defender’s Office, clearly, is in dire need for better funding to support its lengthy laundry list of necessary services provided to Cook County residents.
The National Sixth Amendment Center has noted that while raw numbers show the Law Office of the Cook County Public Defender currently falls within the National Advisory Commission (NAC) on Criminal Justice Standards and Goals for caseloads, the number does not accurately reflect the reality of workloads for public defense attorneys. This is because the PD’s Office operates numerous programs outside of criminal trial defense — including round-the-clock representation at all police stations in Cook County for any arrested person through their Police Station Representation Unit (PSRU) and representing clients facing deportation through a new immigration unit. The PD’s Office also requires full-time attorneys to represent people appearing in bond court without counsel, represent clients in post-trial matters, assist appointed trial counsel in cases involving forensic evidence, and provide attorney training and support for trial. Based on these additional responsibilities, the reality of attorneys’ workload in the Office undoubtedly exceeds the raw caseload numbers recorded.
FINANCIAL CONSTRAINTS IMPACT REPRESENTATION OF CLIENTS
In Fiscal Year 2021, the Cook County State’s Attorney’s Office had a budget of $133 million—well over the size of the Cook County Public Defender’s Office budget of about $80 million. This extreme discrepancy in funding all but ensures that defendants do not have a fighting chance when forced up against the weight of the State in court. While the State’s Attorney’s Office has the responsibility of representing the City and County in large lawsuits (which accounts for some of the discrepancy) the work required of them in criminal cases is often much less than that of the Public Defender’s Office, as much of the State’s Attorney’s investigative work is performed by the police department. In contrast, the Public Defender’s Office often has to pay investigators out of their own budget and when funds are tight, they often must forgo necessary investigative work. This can be detrimental to people’s cases, especially when the case is complex and requires interviewing clients, interviewing witnesses, and retaining expert witnesses for trial.
Budget discrepancies are also a major contributor to workload issues for the PD’s Office. Scholars like Professor Norman Lefstein have observed the obvious issue with excessive caseloads for public defenders: the “significant risk that representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Too often, this excessive workload has detrimental effects for clients and case outcomes. In Cook County, approximately 86% of criminal cases are decided with a guilty plea. While this number is close to the national average, the percentage is largely reflective of defense attorneys utilizing plea bargains to settle cases more quickly and alleviate stress on the indigent defense system.
Large caseloads may mean people are unable to speak to their appointed attorney until they appear in court, and even then, for a period of time lasting no longer than a minute. A study conducted by the Sixth Amendment Center found that more often than not, Cook County Public Defenders were meeting their clients for the first time at the initial appearance before a judge—meaning most had not even been appointed to the defendant and, therefore, had never spoken or met with them prior to the proceeding. This has been especially true during the COVID-19 pandemic, as the Illinois Supreme Court made the decision to suspend the right to a speedy trial. Now, as close to 6,000 people await their trial in the Cook County Jail — a large number of whom have been waiting for over a year — defendants face an uncertain future of continued delay despite impressive efforts by public defenders and some other court stakeholders to remedy the backlog.
All these issues compounded may leave a bad taste in the mouth of a client, who is likely struggling though one of the most difficult times in their life. A public defender with few resources and a large caseload is sure to get their wires crossed at some point, and when they do, their client could be left feeling hopeless, believing their attorney is not operating in their best interest. Such a situation is disastrous when facing the full weight of the State’s power to incarcerate and punish. These feelings take a toll on clients and can quickly deteriorate trust between the attorney and client—a factor necessary for attorneys to represent a client to the best of their ability. Additionally, negative experiences and outcomes can lead to a future mistrust in the legal system and contribute to the larger negative public sentiment towards public defenders.
MORE FUNDING IS THE SINGLE MOST EFFECTIVE WAY TO SUPPORT PUBLIC DEFENSE IN COOK COUNTY
The single most effective solution to fix the Cook County Public Defense system is to increase funding. More funding will directly effect the amount of resources available to public defenders including, but not limited to, better training and investigative resources, materials, and experts for trials. These resources would result in greater expertise, greater thoroughness in their practice, and greater confidence for public defenders currently practicing in Cook County.
Additionally, more funding could allow for the PD’s Office to hire additional attorneys and support staff to alleviate some of the workload for current staff. With recent implementation of the immigration unit and greater control of the PSRU in recent years, additional support staff will play a vital role in the level of services provided and the overall success of these programs. Additional staffing is especially important in tackling the current case backlog caused by COVID-19 and the time constraints looming over attorneys as the Illinois Supreme Court considers reinstating the right to a speedy trial in the near future. These improvements are likely to in turn have greater positive outcomes for people and instill within them a general comfort that they are receiving quality representation.
All defendants in Cook County, regardless of economic status, deserve justice while passing through the criminal court system.
Cook County and the City of Chicago have an obligation to seek justice to the best of their ability and this can only be achieved through the provision of high-quality representation through the Cook County Public Defender’s Office. Increasing funding for the PD’s Office is the most effective way to fix chronic issues in the system and remove barriers to justice.
Contributors: Mercedes Molina is a rising 2L and the Robina Public Interest Scholar at the University of Minnesota Law School and a Public Interest Law Initiative (PILI) Intern with Chicago Appleseed Center for Fair Courts.