Pleading the Sixth: Illinois statutes authorize circuit judges to control the public defense function. In every one of Illinois’ 102 counties, except Cook (Chicago), circuit judges hire the public defender and can fire the public defender for any reason or no reason. In order to preserve the independence of the public defense function and ensure constitutionally effective representation is provided to every indigent accused person in the state, Illinois should support legislative efforts that remove public defense from judicial control and interference.
Earlier this month, Champaign County circuit judges removed Champaign County Public Defender Janie Miller-Jones from her position due to a “personnel issue,” as reported in the News-Gazette. As reported, the office has been suffering from a shortage of public defenders for the past two years, causing public defenders to shoulder excessive caseloads and leave the office for other jobs. Public Defender Miller-Jones herself was reportedly carrying six pending murder cases and requested the presiding judge not to appoint any more murder cases to her office.
The excessive caseload crisis in Champaign County has existed for far longer than the past two years. Champaign County was one of the nine counties 6AC closely studied in its evaluation of adult trial-level indigent defense services in Illinois. Assistant public defenders in Champaign County spoke openly to 6AC about their fear of burnout from excessive caseloads: one public defender described their work as “triage” and another stated, “[t]here are a number of people who I haven’t spoken with [by their court date]. So there’s often a line of up to 50 people waiting to speak with me before court.”
6AC’s caseload analysis showed that in FY 2017 and FY 2018, the Champaign County public defender office was too understaffed to guarantee that constitutionally effective representation was being provided to every indigent person it was appointed to represent. In FY 2018, national standards required the office to staff, at a minimum, 22.4 full-time public defenders, 7.5 full-time investigators, and 7.5 social service caseworkers; yet the office had only 14 full-time public defenders, one investigator, and no social service caseworker.
Contrary to U.S. Supreme Court case law, the circuit judges in Illinois control the public defense function
The Champaign County circuit judges’ reason for removing Public Defender Miller-Jones from her position is not disclosed, and 6AC takes no position on whether there are justifiable termination issues. Rather, this story raises alarm bells – and should for the State of Illinois – in that judges should never control the public defense function. In Champaign County, the circuit judges hire the public defender and can fire the public defender at any time, for any reason or no reason, and the circuit judges determine the number of assistant public defenders and support staff in the public defender office, within the funding allocated by the county board.
The Champaign County public defender office has no control over the number of criminal cases it is appointed to defend in the trial courts. Each public defender owes every client an ethical and constitutional duty of loyalty “to advocate the defendant’s cause.” If a public defender simply has so many clients that they can no longer have enough time to devote to the next client’s case, then the public defender cannot ethically represent the next new client. A public defender can temporarily decline new court appointments until caseloads are controlled and/or request necessary resources to accept new court appointments (e.g., salary increases to retain existing public defenders or funding to hire additional public defenders).
However, since Illinois law permits the circuit judges to fire the public defender for any or no reason, then they can fire the public defender for declining new court appointments or requesting resources necessary to provide constitutionally effective representation. This puts the public defender in an untenable position: their ethical and constitutional duty to advocate solely on behalf of their appointed clients’ legal interests is continually pitted against their need to remain in the circuit judges’ good graces to stay employed. The public defender’s conflict of interest, created by the circuit judges’ control over the public defense function, can pressure the public defender to take on more cases than they can effectively handle, as evidenced in Champaign County. This is a conflict born out of and authorized by Illinois law.
The U.S. Supreme Court has time and again warned states against judicial control and interference over the public defense function, stating that the state has a “constitutional obligation to respect the professional independence of the public defender whom it engages” and that independence of appointed counsel is an “indispensable element” of “effective representation.”A crisis of excessive caseloads in the Champaign County public defender office is simply a symptom of the circuit judges’ unconstitutional control over the public defense function. And, if the Champaign County circuit judges removed the public defender because of a “personnel issue” related to excessive caseloads, then her removal is an example of unconstitutional judicial control and interference over the public defense function.
Illinois should support legislative efforts that protect the independence of the public defense function
Champaign County is not alone. In every county other than Cook (Chicago), the circuit judges retain control over the public defense function, and the indigent defense system attorneys are beholden for their livelihoods to the judicial branch. 6AC’s study of the right to counsel in Illinois details the various ways that the lack of independence manifests in different counties, from excessive caseloads to inadequate compensation to unrepresented defendants negotiating directly with prosecutors before being advised of their constitutional rights. Illinois has a constitutional obligation to protect the independence of the public defense function because without it, “there can be no fair trial” for the indigent accused. The Sixth Amendment Center encourages the state to support legislative efforts that, first and foremost, ensure that the public defense function is independent and “free of state control,” as required by the U.S. constitution. While the promise of the right to counsel remains, according to soon to be retired Chief Justice Anne Burke, a “work in progress,” 6AC stands ready to assist state policymakers as the state determines for itself the best way to fulfill its right to counsel obligations for every indigent accused person in Illinois.