Illinois Supreme Court task force seeks to address disparities in public defense.

A new Illinois Judicial Conference task force has been charged with recommending ways to improve the state’s system for providing criminal defendants with representation when they cannot afford it.

The Indigent Criminal Defense Task Force, launched in March, segues from two initiatives. In late 2022, the Illinois Judicial Conference (IJC) released a 2022-2025 strategic plan that mentions the creation of such a task force as a strategy for “ensuring accessible justice and equal protection under the law,” one of the plan’s five stated goals.

The other was the release of a June 2021 report commissioned by the Illinois Supreme Court assessing how well the state is meeting its Sixth and 14th amendment obligations under the U.S. Supreme Court’s landmark 1963 decision in Gideon v. Wainwright. That report, “The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services,” undertaken by the Boston-based Sixth Amendment Center in partnership with the Defender Initiative of the Seattle University School of Law, found that in giving counties and trial court judges the responsibility to provide and oversee public defenders, Illinois has allowed the quality of such representation to vary widely statewide.

The report’s key findings include disparate funding levels and resources for public defense work throughout Illinois, including salaries for public defenders; “[institutionalization of] political and judicial interference with the appointed attorneys’ independence”; and a lack of accountability that can lead to denying indigent defendants their right to counsel.

The report also states that Illinois is “one of just seven states that do not have any state commission, state agency, or state officer with oversight of any aspect of trial-level indigent representation services in adult criminal cases.”

Doing nothing not an option

While the task force will use the 2021 report to sharpen its focus, more work is needed to assess its findings, task force leaders say. Although the report included statewide analysis, it focused mostly on seven counties, which served as a sort of sample set. It’s also too early for the task force to recommend what the 2021 report does: state oversight of local public defenders. But task force leaders agree that improvement is needed. The task force, which includes public defenders, judges, state’s attorneys, and others, is expected to present its own recommendations to the IJC later this year.

“When it comes to the constitutional right to a defense, we can do better than what we’re doing right now,” says task force chair, Kathy Saltmarsh, executive director of the Sentencing Policy Advisory Council, a nonpartisan state agency created by the General Assembly in 2009.

“The report did reveal some deficiencies, and we’re addressing those so that we have the best delivery of indigent defense in the state that we can,” says task force vice-chair Judge J. Imani Drew of the 21st Judicial Circuit (and a former public defender). “There’s going to be a statewide response—in the form of the task force’s work—but exactly what the resulting system is going to look like is to be determined,” Judge Drew says. While Judge Drew and Saltmarsh acknowledge flaws in the current system, both say there are many positive aspects to build upon.

Support from the field

Defense attorneys say reforming Illinois’ public defense system would be welcomed.

“Chief Justice Mary Jane Theis continues to demonstrate her commitment to indigent defense. It is appreciated,” says defense attorney Daniel L. Fultz with Brown Hay & Stephens in Springfield and chair of the ISBA Criminal Justice Section Council. “The public defender system in Illinois needs more uniform oversight at a statewide level. Funding levels vary drastically, case levels in many counties are excessive, burnout is an issue, and salaries from the chief public defender on down often lag those of the state’s attorney.”

“I concur with Dan’s comments,” says Paul Cain, the faculty director for the criminal defense clinic at the Northern Illinois University College of Law. “Case levels are excessive, and the turnover rate is high due to burnout and low wages.” (Cain also is an ISBA Criminal Justice Section Council member.)

While the Sixth Amendment Center’s study highlights these and other problems, Fultz says, he looks forward to what the task force recommends implementing.

The Illinois Bar Journal also spoke with public defenders in Illinois who were reluctant to speak on the record. But the consensus was that while some Illinois counties are doing much better than others in providing defense services to indigent individuals, the Sixth Amendment Center report is fair. (Some were critical of the report for recommending Illinois follow the lead of states such as Idaho regarding “penalties for noncompliance by local governments,” mainly due to how different the two states are.)

“The Sixth Amendment Center’s report is one of the resources we have at our disposal, and the people at the Center are making themselves available,” says Saltmarsh. “But I would want anybody reading this article to really be clear that we are not just talking about implementing the Sixth Amendment Center’s report. It is a launching pad that we are using as a resource.”

Saltmarsh says the private bar will be a critical element on a permanent, sustainable, statewide response to the crisis and that the task force also is hearing from a number of states with diverse models that are sharing lessons learned and pitfalls to avoid.

Broad interest

The task force is one of several efforts underway examining the public defense system in Illinois. Some are more promising than others. In 2021, the General Assembly created a Public Defender Task Force, which shall submit “its findings and recommendations to the Governor and the General Assembly no later than December 31, 2023.” But on the State of Illinois’ official website listing appointments for state boards, commissions, task forces, and councils, all 10 seats on the task force are vacant.

A more rigorous study of public defense in Illinois is taking place at Northwestern’s Pritzker School of Law, where Julie Biehl, clinical professor and director of Pritzker’s Children and Family Justice Center, is leading a team of law and sociology graduate students and researchers on an expansive investigation of public defense resources in all of Illinois’ 102 counties.

Biehl was among those who studied the Sixth Amendment Center’s report when it first came out. Partly due to a lack of attention she saw the report receiving, she set about to continue where the report left off. Whereas the Sixth Amendment Center’s report restricted its analysis to seven Illinois counties, she and her research team are looking at all 102 while gathering more data from each county than the Sixth Amendment Center published.

“We have gathered extensive data on every county including, for example, the number of allocated slots for public defenders, criminal defense attorneys, investigators, social workers, and support staff as well the budgets for criminal defense and for state’s attorney’s offices. While we have not completed analyzing all the data, I think it’s interesting to compare what is spent on prosecution versus defense,” Biehl says.

“In over 50 percent of the counties, the differential was 100 percent while in some it was at much as 500 percent. While it is true that the state’s attorneys have more work, they don’t have that much more work. Another important fact is that state’s attorneys’ budgets do not include the cost of local law enforcement, which provide free investigators and experts to the prosecutors, whereas public defenders must pay for these expenses.”

Biehl says much work is still to be done, as she and her team continue to gather and verify data. While Biehl is not sure they will finish before the Indigent Defense Task Force submits its recommendations, she has informed the task force of her research.

Saltmarsh says the direction of the task force will largely be driven by the expertise of its members. But there is consensus that structural reforms are needed.

“I don’t think, even in the best counties, that there’s anybody who could say that we have the system that we need,” she says. “While we need to be respectful of the baseline requirements of the system, we need to get real about the realities of this work. I think that’s where we are.”

While Illinois Supreme Court and IJC task forces are not required to hold public hearings or gather public feedback, Saltmarsh says that anyone with questions and feedback can email the task force at communications@illinoiscourts.gov.

Pete Sherman is managing editor of the Illinois Bar Journal.
psherman@isba.org