Lawmakers moving forward on public defender reform

SPRINGFIELD — When Elisabeth Pollock took over as the Champaign County public defender in 2022, one of her team’s attorneys was handling 500 cases in a courtroom that should have been staffed by at least three public defenders.

“That is a recipe for disaster because it’s not just taxing on the attorney, but it means that the client(s) who that attorney is representing are not able to speak with her in a timely fashion; they’re not able to review their cases with her in a timely fashion,” Pollock said. “We’re talking about months of delay in terms of meeting with attorneys and getting results.”

With many county public defender offices pushed to the limits throughout Illinois, state lawmakers are moving forward on legislation to create a statewide public defender office.

Demand for public defense attorneys has increased in the two years since the Pretrial Fairness Act took effect in 2023. That law requires more in-depth evidence and arguments during first appearance hearings than under the old bond system, where first appearance hearings often lasted just a few minutes while a judge set a bond. Now detention hearings are required to take place within 72 hours of an arrest, meaning public defender services are often needed right away to review early evidence in cases.

Legislation in front of the General Assembly would create the “Office of State Public Defender” which would primarily be responsible for providing public defender offices around the state with more resources. House Bill 3363 passed the House last week on a 72-41 vote. It now heads to the Senate where President Don Harmon, an Oak Park Democrat, has tried to pass similar legislation in recent years.

Illinois has already established similar offices to improve other aspects of criminal court processes, including the Office of State Appellate Defender and the Office of Statewide Pretrial Services.

First steps for the office

If lawmakers approve the bill, the office might provide public defense services — but not for several years. Over the first few years, the office’s primary responsibility would be to assess the needs of public defenders and collect data about workloads.

The state has appropriated $10 million for public defense services via a fund established in 2023. State funding would provide greater equity for public defenders throughout the state, which typically receive funding from their counties, Pollock said.

“County by county, the budget depends on what that county can provide, and some counties don’t have as much revenue as others and so they just simply cannot afford to provide the resources that the public defenders need to do their jobs,” she said.

Limited data shows all Illinois counties need more public defenders. According to an analysis of county public defender budgets compiled by Northwestern University, no Illinois counties have “sufficient” staffing in public defender offices.

Some positions in public defender offices aren’t filled at all, including 83% of counties that don’t have any investigators in public defender offices, according to researchers.

Most other states also have some level of state oversight and are the primary funding source for public defenders. Illinois doesn’t fall into either category.

The bill would require counties to bump up salaries for public defenders from 90% to 95% of a state’s attorney’s salary, something proponents say will help improve recruitment and retention.

Appointing public defenders

Another key provision of the bill would change how public defenders are selected. Outside of Cook County, top county judges appoint or remove public defenders.

Under the bill, a local nominating committee would be tasked with appointing or removing public defenders, which is designed to give the public defenders more independence from the judiciary.

“You’re now arguing in front of a judge who hires you and a judge who fires you, potentially. Whereas a state’s attorney is an elected official and a judge has no power over him or her and no power over their budget,” bill sponsor Rep. Dave Vella, a Rockford Democrat, said.

Chief judges could still be part of the local committees appointing public defenders, but their voice would be one of between four and six members of the commission that selects a county’s public defender. Other commission members would include attorneys, representatives of law schools or legal professional organizations and former public defender clients.

For now, that process would not be required for counties with fewer than 35,000 people as those counties typically rely on contract attorneys for public defense that split their time in multiple counties. State law doesn’t require those smaller counties, which account for more than half the state’s 102 counties, to have public defender offices. Cook County already has its own appointment process different from the rest of the state.

“The problem is the appearance of impropriety,” Vella said. “We have a system right now in Illinois, and in America, where defendants and people who are in the system are starting to have some real questions about the fairness of the system.”

Pollock said it makes sense that judges are part of the process because they see the attorneys perform in the courtroom and might be able to tell who would make a good public defender. But the problem is it could create an appearance for defendants that their public defender might change how they represent someone to make their “boss” — the chief judge — happy.

Former Madison County Public Defender John Rekowski disagreed.

“The judges are in the best position to know the local landscape and know the local bench, know the local climate and pick the person who should furnish those services,” Rekowski said in an interview.

Rekowski and the Illinois State Bar Association are proposing that judges continue appointing the public defender, but the commission has the power to remove the public defender or reappoint the public defender to a new term. Rekowski said limiting the judge’s power over public defenders to just their first appointment removes “any possibility (of) some kind of retribution or intimidation.”

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