The 60th anniversary of the U.S. Supreme Court’s landmark Gideon v. Wainwright decision, which guaranteed the right to counsel for criminal defendants who cannot afford an attorney, sparked a much-needed examination of public defenders offices across the country last year.
The analyses were as stark as expected. Many public defenders are juggling extremely heavy workloads that keep them from providing effective legal representation. The 1973 guidelines for caseloads are outdated and broad, the National Public Defense Workload Study found, offering new standards.
We’d have to go further back in time — to 1949 — for the last time Illinois changed its public defense structure. An upgrade is overdue, especially when 60% of the state’s 102 counties do not have a full-time public defender. In many of those mostly rural counties, it is a judge who appoints a local private practice attorney, typically using flat-fee contracts to represent someone who doesn’t have the means to hire a lawyer.
Judges outside of Cook County also have the power to appoint and remove chief public defenders. That can be highly problematic as public defenders have been removed after they publicly complained about insufficient resources, says Stephanie Kollmann, the policy director for the Children and Family Justice Center at Bluhm Legal Clinic at Northwestern University’s Pritzker School of Law.
Under the proposed Funded Advocacy and Independent Representation, or FAIR, Act, Illinois could get the ball rolling on establishing a statewide public defense system to ensure it is fulfilling its Sixth Amendment obligations without judicial and political interference.
The hybrid state-plus county program will take two years to set up and yes, will eventually cost taxpayers some money.
But having a state public defender and an 11-member commission “is not simply a matter of dollars,” as Cook County Public Defender Sharone Mitchell told us. “This is about creating a structure that allows for oversight, the right support and really assuring that people are getting their constitutional rights.”
A statewide public defense system could also help with collecting data, which “can only help public defense attain equal footing in the legal system” the American Bar Association said.
As they start discussion on the FAIR Act, Illinois lawmakers need to keep in mind that roughly four out of five criminal defendants, many of whom are Black and Brown, rely on public defenders or court-appointed lawyers.
“Lawyers in criminal courts are necessities, not luxuries,” Justice Hugo Black wrote in the Gideon v. Wainwright ruling. It is time we start taking that mandate seriously.
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