The State of Illinois defaults on its constitutional right to counsel obligation

A new study shows there are two overarching reasons why the State of Illinois is defaulting on its constitutional right to counsel obligations. First, the state requires counties and courts to provide and predominantly fund indigent defense systems in a way that bakes in governmental interference with the right to counsel. Second, as one of only seven states with no state-level mechanism to oversee any aspect of trial-level right to counsel services, Illinois lacks information about every aspect of the varied indigent defense systems implemented by the county governments and courts in their efforts to fulfill the Sixth Amendment right to counsel responsibilities that the state has delegated to them. There is a path forward, and it is important for Illinois to get this right.

Fifty-eight years ago in Gideon v. Wainwright, the U.S. Supreme Court declared it is an “obvious truth” that anyone accused of a crime who cannot afford the cost of a lawyer “cannot be assured a fair trial unless counsel is provided for him.” In the intervening years, the Court has clarified that the Sixth Amendment right to counsel means every person who is accused of a crime is entitled to have an attorney provided at government expense to defend him in all federal and state courts whenever that person is facing the potential loss of his liberty and is unable to afford his own attorney. Under Gideon, it is the state that is obligated to provide the Sixth Amendment right to effective assistance of counsel in the state courts.

On June 8, 2021, 6AC published its report, The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services, culminating a multi-year, statewide study of the provision of the right to counsel in Illinois in adult criminal cases at the trial level, conducted at the request of the Illinois Supreme Court and the Administrative Office of Illinois Courts. The detailed examination, explained briefly here, shows how and why the State of Illinois is defaulting on its constitutional right to counsel obligations and what can be done to fix it.

The ABCs of Illinois’ trial-level indigent defense systems

The State of Illinois delegates to its counties and trial court judges the responsibility for providing and overseeing attorneys to effectively represent indigent defendants in the trial courts, and it delegates to its counties nearly all of the responsibility for funding the right to counsel of those indigent defendants.

Illinois has 102 counties. State law requires that all representation of indigent people in the Illinois circuit courts is provided either through a public defender office, through private attorneys, or through both.

State law automatically creates a public defender office in the 42 most populous counties, while the other 60 counties can choose whether to have a public defender office. Today, all 102 counties have a public defender office, but in 60 of these counties the county board can wholly eliminate the public defender office and all of its employees (both attorneys and non-attorney staff) at any time, for any reason or no reason.

In a county with a public defender office, the state imposes minimal requirements about: public defender office space; the selection of the public defender; the amount of the county public defender’s compensation; the number and compensation of assistant public defenders or support staff in that office; and whether and when private attorneys should be appointed to handle indigent defense cases, and how those private lawyers should be compensated.

In Cook County (Chicago), the public defender is selected by the county board president and appointed to a six-year term, removable during that term only for good cause or dereliction of duty. In all other counties, the public defender is selected by, and serves and can be removed at the pleasure of, the circuit court judges.

The state reimburses each county for 66 2/3 percent of the appointed public defender’s compensation, “subject to appropriation” of funding by the legislature. This means that, in any given year, if the legislature does not appropriate sufficient funds for this purpose, then the state can renig in whole or in part on its promised reimbursement to the counties. Aside from this reimbursement and limited financial assistance provided primarily for training, Illinois has delegated to its counties all of the other responsibility for funding the right to counsel of indigent people. Because the state reimburses counties for a portion of the public defender’s compensation, the state regularly receives current information about the amount each county pays its public defender each month and whether that public defender is full-time or part-time. This is the sole area of information in which the State of Illinois has a mechanism for oversight of the county indigent defense systems.

Each county sets the amount of and pays its public defender’s compensation, with the only state-imposed constraint based on whether the public defender is full-time or part-time. State law requires the Cook County public defender to serve in a full-time capacity, but it allows  the county boards in all other counties to make the public defender a part-time position if they so choose. If the public defender is full-time, the county must pay the public defender 90% of the appointed state’s attorney’s salary. If the public defender is part-time, the county board sets the public defender’s compensation at whatever amount it sees fit, and the public defender is allowed to also have a private law practice. In 57 counties, the county boards have chosen to have only a part-time public defender.

Often, the appointed public defender has to pay for overhead and case-related expenses out of their take-home pay. For example, in Schuyler County the part-time public defender is expressly required to personally pay for all overhead and case-related expenses in appointed cases. In Gallatin County, the part-time public defender receives a $100/month stipend for all overhead and case-related expenses. In many smaller counties, the county boards do not provide any assistant public defenders or support staff positions.

In some counties, private attorneys are rarely if ever appointed in indigent criminal cases, and instead (even in multi-defendant cases) all indigent criminal defendants are represented by assistant public defenders from the same public defender office. In those counties that do appoint private attorneys for any reason, state law makes the circuit court judges responsible for choosing the private attorneys to appoint and for deciding what “reasonable fee” to pay them.

Illinois’ framework for the county indigent defense systems institutionalizes governmental interference in the provision of the right to counsel

At the same time that the State of Illinois forces counties and judges to bear the constitutional responsibility for providing the Sixth Amendment right to counsel, the state imposes a framework that institutionalizes governmental interference in the provision of the right to counsel.

In Strickland v. Washington, the United States Supreme Court says that independence of defense counsel is “constitutionally protected.” In Ferri v. Ackerman, the Court explains that the “independence” of appointed counsel to act as an adversary is an “indispensable element” of “effective representation.” The Court continues in Polk County v. Dodson, stating that government has a “constitutional obligation to respect the professional independence of the public defenders whom it engages,” and that public defenders are “not amenable to administrative supervision” like other government employees. To uphold these requirements of U.S. Supreme Court case law, national standards as compiled in ABA Principle 1 state that the “selection, funding, and payment of defense counsel” should be “independent from political influence and subject to judicial supervision only in the same manner and to the same extent as retained counsel.”

Instead of protecting the independence of the defense function, as constitutionally required, the State of Illinois imposes a framework that makes all indigent defense system attorneys directly dependent for their jobs on remaining in the good graces of the county board and/or circuit court judges who hire them. It is worth underscoring at this point that the county boards and circuit court judges in Illinois are not maliciously or consciously trying to undermine the basic constitutional right to counsel. Instead, it is the state’s framework that places appointed attorneys in a position where inevitably, and often without realizing it, they take into consideration what they perceive to be the desires of the county board and circuit court judges, rather than advocating solely on behalf of their appointed clients’ legal interests, as is their ethical and constitutional duty.

For example, in one of the smaller counties studied, the appointed part-time public defender is a county employee but does not have access to county health care or other benefits. The public defender does not want to rock the boat, because the county could decide to eliminate his office entirely, so he never complains. But he does have to get health care somewhere, so he takes more privately retained cases to cover the cost, which takes time away from representing his indigent clients.

The same underlying problem exists in the larger counties – it just happens at a much larger scale. 6AC spoke with a public defender in one of the larger counties who expressed that the office did not have the necessary resources to meet the needs of all of its clients. When asked what prevents making the case to county policymakers for those resources, the public defender said: “If I ask for what I actually need, I lose my job.”

The systemic interference with independence of the defense function looks different in, say, Hardin County (pop. 4,320) than it does in Cook County (pop. 5.1 million), yet all counties share a common thread that demands attention. The lack of independence causes systemic conflicts of interest that interfere with the provision of effective assistance of counsel and allow deficiencies in providing the right to counsel to continue.

In some circumstances, indigent defendants in Illinois are actually deprived of counsel at a critical stage of their criminal case. In other instances, an indigent defense system attorney is appointed but under circumstances that cause a constructive denial of the right to counsel. The indigent defense systems in some Illinois counties suffer from the types of circumstances that the U.S. Supreme Court says in United States v. Cronic can render an appointed attorney presumptively ineffective, including:

• lawyers being appointed to cases for which they are unqualified;
• a lack of adequate training and supervision;
• failing to provide appointed lawyers with space for confidential meetings with clients;
• crushing caseloads leaving lawyers with little or no time to prepare their cases;
• inadequate compensation that, in some counties, requires lawyers to pay for case-related expenses out of their take-home pay;
• a lack of standardized indigency screening procedures, meaning that a defendant may be denied appointed counsel by one judge while a similarly situated defendant may receive appointed counsel in the courtroom next door; or
• actually depriving defendants of the right to counsel at a critical stage of their criminal case, whether through requiring defendants to enter a plea at their initial appearance without first being allowed counsel or by pressuring (or in some counties, requiring) unrepresented indigent defendants to negotiate directly with prosecutors before the defendants are advised of and waive their right to appointed counsel.

The report documents each of these circumstances occurring across the sample counties. Here are just a few examples to provide a sense of what 6AC observed.

Nothing prevents counties from hiring someone who has only recently passed the bar exam to serve as the public defender and appointing them to handle serious felonies, up to and including homicides. Gallatin County did just that, hiring a lawyer only months out of law school to be the county public defender, with no training and no supervision.

The LaSalle County public defender’s physical office space is actually one large room with a couple of desks located inside the Sheriff’s Office. So, indigent clients wanting to meet with their appointed lawyers have to go to the sheriff’s window at the county justice center to ask to speak with their lawyers. Unsurprisingly few ever do.

By all accounts, the Cook County public defender office has some exceptional lawyers on staff. But what quality representation they provide is built upon a framework of triage that pervades the entire system. We met with lawyers who said they suffer from deep depression and exhaustion from handling upwards of 2,000 cases per year. Other lawyers talked about the frustration their clients experience as they “ping-pong their way around” the county from court hearing to court hearing, until they finally meet their assigned trial lawyer for the first time, which frequently is several weeks after their arrest.

An April 2021 decision from the Idaho Supreme Court notes that

when, on a system-wide basis, the traditional markers of representation—such as timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution’s case—are absent or significantly compromised; and … when substantial structural limitations—such as a severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices—cause the absence or limitation on representation[,]

the U.S. Department of Justice, along with some federal and state courts, has concluded that a state’s entire indigent defense system can potentially be presumed to be constitutionally defective under U.S. Supreme Court case law. All of these types of systemic right to counsel deficiencies are prevalent in Illinois, as documented in the 6AC report.

The State of Illinois does not know, on an on-going basis, whether it is fulfilling its constitutional right to counsel obligations

As the U.S. Supreme court explained in Gideon v. Wainwright, it is the state that is constitutionally obligated, through the due process clause of the Fourteenth Amendment, to provide the Sixth Amendment right to effective assistance of counsel in the state courts. For this reason, national standards as summarized in Principle 2 of the ABA Ten Principles call for “state funding and a statewide structure responsible for ensuring uniform quality statewide.”

When a state chooses to delegate its federal constitutional responsibilities to its local governments and courts, as Illinois has done, the state must guarantee not only that these local bodies are capable of providing effective representation but also that they are in fact doing so. Yet the State of 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 (the other six states are Arizona, California, Nebraska, Pennsylvania, South Dakota, and Washington).

Without oversight, the State of Illinois cannot accurately say how many people or cases, and of what case types, require appointed counsel nor by whom the representation is being provided, if at all, and the State of Illinois cannot know how much the provision of indigent representation should cost nor how to provide it effectively in all 102 counties. The state has abdicated its responsibility to ensure it is fulfilling its constitutional right to counsel obligations.

A path forward for Illinois policymakers

It is important that Illinois get this right. The depth and breadth of the state’s right to counsel failures take on even more poignancy in 2021 as people continue to protest racial injustices and demand equal justice before the law. If allowed to function effectively, public defenders are the system actors that hold the justice system accountable. Point to almost any criminal justice issue – wrongful convictions, over-incarceration, non-violent offenders serving life sentences, disproportionate criminalization and incarceration of people of color, etc. – and the root problem is a lack of true advocacy for people with insufficient means who are charged with crime. Just as a doctor treating only the visible symptoms of an underlying ailment may fail the patient, the focus of any number of well-meaning policymakers, stakeholders, and advocacy groups to address the countless issues plaguing criminal justice without concurrently repairing the indigent defense system will result in half-measures and unsustainable policies.

So, where does the State of Illinois go from here? 6AC’s report makes two recommendations.

To start, the State of Illinois has an affirmative duty to ensure effective public defense representation to each and every indigent defendant facing a potential loss of liberty. To provide both the independence and the oversight currently absent in Illinois’ indigent defense systems, the state should create and fund an independent public defense commission to oversee all trial-level indigent defense services and with authority to set and enforce binding statewide standards.

There is no one cookie-cutter model for a commission that must be imposed on each state. Thirty states have created some form of a commission, and many states provide examples, explained in 6AC’s report, of structures to implement independent oversight of compliance with standards, including through: establishing a unified state system; providing state funding to local governments to enable compliance; or assessing penalties on local governments for non-compliance.

The State of Illinois also has a fiduciary duty to taxpayers to ensure that the independent public defense commission exercises oversight of the system that provides right to counsel services. For this reason, there should be a central office under the authority of the commission, led by an executive attorney and executive staff, to help oversee all indigent defense services in the state. The commission should submit periodic reports to the legislature regarding the status of right to counsel services statewide on the key indicators of systemic effectiveness under United States v. Cronic, which include the early appointment of qualified and trained attorneys, who have sufficient time and resources to provide effective representation under independent supervision. 6AC stands ready to assist Illinois state policymakers to address the widespread deficiencies identified in our report in ways that fit the unique needs of Illinois.