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Illinois lawmakers are trying again with the public defender bill

SPRINGFIELD — Illinois lawmakers plan to make a second push to create a statewide office to help understaffed public defenders after an earlier attempt failed amid questions about whether the office would remain independent of the judiciary.

Senate President Don Harmon, a Democrat from Oak Park, filed the first bill last month to create a public defense litigation support office, but the two-page proposal was light on details about how a statewide system would work. In addition, public defenders questioned whether the office could act independently because the bill was an initiative of the Illinois Supreme Court.

Harmon withdrew his bill and supporters went back to the drawing board, drafting a 42-page bill that was filed Monday. The measure lays out in much more detail how a statewide public defender will be selected and how the office will support county public defenders across Illinois, although a funding source has not yet been identified.

The goal was to address the lack of public defense resources in rural areas, where many areas do not even have a public defender's office, as well as inequities in the distribution of resources for district attorneys and public defenders. In Cook County, for example, the 2024 budget allocated about $102 million for the public defender's office and about $205 million for the district attorney's office.

The House bill was filed by Rep. Dave Vella, a Democrat from Rockford who once worked as a deputy public defender in Winnebago County. He said the state Supreme Court has done good by wanting to provide more resources to public defenders, but the problem with the original bill is that it does not address issues of judicial oversight of public defenders by the Supreme Court and chief district judges who appoint these positions.

“There was still an imbalance of power where prosecutors were free to act. Public defenders were subject to judicial authority,” Vella said of the original legislation. “We want public defenders to be just like private attorneys. We want them to be their own company so they can act in the best interests of their customers. If they can’t do that, as I said, there’s a power imbalance and the system collapses.”

Under the bill, a state public defender would be nominated by a group “established by and composed of public defenders in the state.” The state Supreme Court would then approve a nominee by majority vote for a two-year term.

When the term expires, a newly formed State Public Defender Commission, consisting of 11 members, would select a state public defender for a six-year term. The governor would select four of the commissioners, the state Supreme Court would select three and the state's four legislative leaders, two from each party, would receive one each.

Commission members are required to have experience defending indigent clients and may not be paid as a judge, elected official, prosecutor, judicial officer or police officer within two years of joining the Commission.

While Cook County's public defender is appointed by the county's chief executive for a six-year term, public defenders in other Illinois counties are appointed by the county's chief judge with no set term. The legislation would create a process for the statewide public defender board to nominate candidates for county public defender positions, and the new commission would make the appointments.

The fact that district attorneys are appointed by judges is a dynamic that can give the judiciary too much control over public defense, Vella said.

“That gives the public defender a lot of power over what they can and can’t do,” he said. “Most public defenders I know will do whatever they can for their clients. But you want to eliminate even the appearance of impropriety.”

The statewide public defender's office would also provide training for county-level public defenders “with the assistance of attorneys, experts, investigators, administrators and social service personnel” and “maintain a panel” of private attorneys to represent indigent clients, the bill states.

The legislation would allow any two counties within the same judicial district to combine public defender offices. Now two neighboring counties can share a public defender in certain situations.

Financing remains an unresolved problem. The current state budget includes $10 million in statewide support for public defenders, and some advocates have said such a new statewide office would potentially require hundreds of millions of dollars in additional annual funding. As lawmakers continue to negotiate Pritzker's $52.7 billion budget proposal, it remains to be seen whether there is room for a robust investment in a statewide public defender program.

Advocates point to a Sixth Amendment Center report commissioned by the state Supreme Court several years ago that said Illinois was among only seven states in 2021 that did not have a state commission, state agency or state official with Oversight of trial-level public defense services in adult criminal cases.

The report, which focused on nine counties, found that the state had no oversight structure in place to assess whether each county had a sufficient number of attorneys with the appropriate training and resources to serve at each phase of the To provide effective legal assistance to an indigent client.

Pritzker last month acknowledged the heavy workload for public defenders, how they need to be supported and how the creation of the office would build on other criminal justice reforms passed by the Legislature in recent years, which included eliminating cash bail and other measures in a sweeping bill as the SAFE-T Act. But the governor declined to say how much state funding would be needed to create a public defender office.

“I don't think it would be fair if I tried to estimate the cost. I can tell you with certainty that the work that public defenders face is, again, greater than the resources available to them,” Pritzker said. “That’s why we want to help in any way we can. But as you know, anyone who advocates for something in the state budget may always be seeking more than they actually need this year.”

Cook County Public Defender Sharone Mitchell Jr. signaled his support for the latest proposal, saying in a statement the system “urgently needs structural reforms and increased resources.”

“We look forward to supporting legislation that increases state funding for public defense, establishes required workload standards, and includes defense attorneys in the planning, policymaking and oversight processes,” Mitchell said.

Anna Harden

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