This month, the Illinois Senate will consider the Funded Advocacy & Independent Representation Act, a bill to create a statewide, independent public defense system. If passed, the legislation will create an Office of the State Public Defender and a State Public Defender Commission. Together, they would establish workload standards, support training and enhance resources for county public defense systems across the state.
The FAIR Act — House Bill 3363 — follows recommendations made by an Illinois Supreme Court-commissioned study released in 2021 and an Illinois Judicial Conference Task Force report released in 2023. Last spring, the Illinois Supreme Court introduced the issue to the Legislature, setting in motion reform conversations that have culminated in the development of the FAIR Act by public defenders, advocates and legislative partners.
Last May, the Sun-Times Editorial Board endorsed creation of a statewide public defender, highlighting lack of resources and the disparate impact this has on Black and Brown people in Illinois. As the FAIR Act moves through the legislative process, the issue of independence must also be given the utmost attention by legislators.
Currently, in most cases, county boards and local judges make funding decisions and allocate resources — leading to wide disparities in Illinois’ diverse 102 counties. Many judges outside Cook County also have the power to hire and fire the chief defenders who appear before them. This lack of independence undermines the right to counsel in Illinois and raises constitutional concerns for hundreds of thousands of public defender clients annually.
When local judges control public defense systems, attorneys may become concerned with appeasing those judges to retain their roles or grow reluctant to push back against judicial policies and actions that hurt their clients. Judges may wield their authority to force defenders to conform to the court’s preferences and practices, firing those whom they see as too zealous in their advocacy or too outspoken in their critiques. And even if judges and attorneys do not fall prey to these pressures, clients and community members lose confidence in public defenders who are employed at the mercy of the very courts that seek to punish them. It is critical that public defenders be free from judicial interference so they can put the needs of their clients over the desires of the court.
Some may argue that the current system is effective, citing judicial allies who advocate for funding and support defender needs. But the very fact that the local system’s success is dependent on having a “good” judge says everything we need to know about why independence is so critical — today’s supporter can become tomorrow’s adversary; a collaborator helping secure funds this year may become a competitor for those same funds the next.
Advocates of the status quo who assert judges help ensure quality public defense should ask how often they see a judge encouraging a defender to file more motions, hire more experts, try more case and spend more time seeing clients. Instead, it’s much more common to find judges pushing defenders to handle more cases and resolve them faster. Courts face pressure to manage dockets, and the push for efficiency can be in tension with a public defender’s obligation to protect each individual client’s rights. There is an inherent conflict of interest if defenders are forced to prioritize the productivity of the court system over zealous representation of clients.
It’s often said that judges are just here to call balls and strikes, not to play the game. When was the last time you heard of an umpire hiring the team’s manager, making the lineup or deciding when to pull a pitcher? Yet this is what happens when judges are involved in hiring and retaining public defenders.
Judges are not asked to oversee prosecutors, to make decisions on who leads their offices, to decide how many staff they employ or which experts they hire, or to fire an assistant state’s attorney who pushes back against a ruling. The citizens of Illinois deserve public defenders with that same independence.
The National Association of Criminal Defense Lawyers supports the FAIR Act because it insulates local public defenders from judicial pressures and government overreach; provides an independent voice to advocate for resources and supports; and helps ensure that defenders are at every table where decisions are made. We are encouraged by the Illinois Supreme Court’s leadership on public defense reform and are eager to see the Illinois Legislature take up these recommendations to bring Illinois more in line with national standards for constitutional public defense.
Christopher A. Wellborn is criminal defense lawyer based in South Carolina and the president of the National Association of Criminal Defense Lawyers.
Bonnie Hoffman is the director of Public Defense at the National Association of Criminal Defense Lawyers and a former public defender.
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