Court shining light on the need for indigent defense reform | State of Illinois Office of the Illinois Courts

By Marcia M. Meis, Director, Administrative Office of the Illinois Courts

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to, among other things, a lawyer. This right to counsel was further guaranteed by the U.S. Supreme Court’s 1963 decision in Gideon v. Wainwright where the Court ruled that the Sixth Amendment requires states to provide attorneys to criminal defendants who are unable to afford their own.

Illinois is one of just seven states with no entity to exercise oversight of the delivery of indigent defense trial-level services, thereby resulting in the administration of this fundamental right being shifted to the counties. More than half of Illinois counties have part-time public defenders, and the resources available to those defenders is dependent on the availability (or lack thereof) of local county resources.

It is against this backdrop that the Illinois Supreme Court, through its Administrative Office of the Illinois Courts, sought and received a grant award in late 2018 from the 6^th Amendment Center (Center), a nonprofit organization that operates under the auspices of the Bureau of Justice Assistance - Office of Justice Programs (U.S. Department of Justice). The purpose of the grant was to evaluate the state of indigent defense in Illinois. In so doing, the Sixth Amendment Center closely examined nine counties and issued its report in 2021 called “The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services.”

The report found that in all nine counties, which varied in population and demographics, public defenders lacked the necessary resources to provide the quality of representation required by the U.S. Constitution. This was largely attributed to excessive caseloads and lack of statewide oversight.

In response, and with renewed urgency given the impending implementation of the SAFE-T Act, the Illinois Supreme Court announced the creation of the Illinois Judicial Conference (IJC) Criminal Indigent Defense Task Force (Task Force) which was tasked with developing recommendations in follow up to the Sixth Amendment Center report.

Specifically, the Task Force was charged with proposing a short-term solution for how counties without a public defender’s office can comply with the Pretrial Fairness Act and, in the longer term, recommending a permanent, sustainable, and equitable system to ensure that everyone entitled to a public defender gets one and every public defender has the support needed to provide effective assistance of counsel. The Task Force focused on issues of access, consistency, effectiveness, accountability, and independence across the state.

The Task Force’s recommendations were adopted by the IJC and the Supreme Court. These included three key items:

1. Full State funding of trial-level public defense services;
2. Establishing a statewide office of trial-level public defense services within the Illinois Judicial Branch to provide a continuous flow of administrative and operational support to local public defender offices; and
3. Developing and implementing a rigorous strategy and infrastructure within this new office for the recruitment and retention of public defense attorneys.

Then, the Illinois Supreme Court took a rare next step and introduced a bill in the 2024 Spring Legislative Session to implement these improvements. Senate Bill 595 (SB 595) was drafted with the intent of placing Illinois on the path to having the best public defense system in the nation. It would ensure that extensive and long overdue resources continue to flow to public defenders across the state while deliberate, transparent and inclusive discussions took place to create the permanent statewide structure.

However, a lack of consensus among public defenders and others across Illinois led to differing positions about what model is best. As such, the Court requested SB 595 not be called for a vote. But this issue is far from over.

The Supreme Court’s demonstrated leadership - engaging with the Sixth Amendment Center, convening the IJC Criminal Indigent Defense Task Force, and drafting legislation to provide permanent statewide support for public defenders – has focused a spotlight on the need for comprehensive indigent defense reform in Illinois.

The campaign to ensure every indigent defendant across our state has access to effective assistance of counsel and every public defender has the resources needed to fulfill the mandates of the 6^th Amendment must continue. Whatever the eventual outcome, the Court’s commitment to these principles has remained, and will remain, steadfast.