The first major change to Illinois’ public defense system in decades is awaiting the governor’s signature.
The Funded Advocacy and Independent Representation [FAIR] Act establishes a statewide public defender's office aimed at providing relief, oversight and independence for public defenders.
“The right to an attorney is not just the right to a warm body in court, but the right to a meaningful defense,” said Stephanie Kollmann, policy director of the Children and Family Justice Center at Northwestern University Pritzker School of Law.
Kollmann was part of a research team that studied the state’s public defense system by county and judicial circuit.
Illinois instituted a system for court-appointed attorneys in 1949. A landmark 1963 U.S. Supreme Court case, Gideon v. Wainwright, established the right to counsel for indigent defendants in felony cases being tried in state courts. Despite being ahead of the curve, advocates for the FAIR Act say Illinois is now woefully behind.
Illinois is one of just five states without a centralized statewide system for funding and administering public defense, leaving it almost entirely to counties. Several small, rural counties do not fund a full-time public defender, paying only for a part-time or contract attorney when a defendant charged in that county cannot afford a private attorney.
“The responsibility to pay for an attorney legally belongs to the state of Illinois," said Kollmann. "And currently, it's paying about 1 of every 10 dollars spent on public defense."
The legislation keeps counties funding public defenders at current levels, while seeking to gradually increase the payer mix from the state.
“If all 10 of those dollars are really a legal duty, the state ought to be covering more of those dollars,” Kollmann said.
Central Illinois not immune
The Northwestern study found that no county was fully staffed, including big gaps in public defense throughout Central Illinois.
The 11th Judicial Circuit that includes McLean County has less than half the attorneys needed to meet demand for public defense. And with no investigators, no social workers and not enough paralegals and support staff throughout the circuit, defendants are left hanging — their attorneys barely able to keep up with caseloads.
“Right now, we’re handling it, but we’re treading water,” said Elisabeth Pollock, chief public defender for Champaign County. According to Northwestern's data, Champaign County is short 16 attorneys. Unlike many counties, it does have an investigator — but needs 10.
Pollock prioritizes work-life balance for her staff, hosting morale boosters and monitoring their caseloads. She also takes the more time-intensive cases for herself — a move she admits is unsustainable long term. She's heard stories of cases being dismissed in circuits working beyond their capacity.
"It could very easily get to the point that if there were so many cases that I'm looking at my people and I'm thinking I'm going to lose them, I would consider a step like that," Pollock said. "We just haven't gotten there."
In a statement, McLean County Public Defender Ron Lewis echoed Pollock, adding in counties like McLean and Champaign, with established public defender's offices he “anticipate operations remaining essentially the same."
A two-year implementation period baked into the legislation allows for the statewide office to get up and running, and collect data on each county.
"I think the initial impact will be greater for smaller counties," Lewis said.
But there are signs of cracks in McLean County’s system, with some defendants opting to navigate their cases alone.
Marcus Folks is one. He’s currently detained in McLean County Jail, charged with armed robbery and fleeing police connected to a burglary at a fast food drive-thru in 2023.
In a letter to WGLT, Folks said he was representing himself because “public defenders do not like to help inmates," adding he wants to push back against an eyewitness testimony in his case.
"My last public defender told me that she was not going to fight for my identification against the state, so yes, I went pro se because she was out to railroad me in trial,” he said.
Alexander Gayles is serving 10 years in prison for criminal contempt — the only person in Illinois incarcerated for that offense. As his public defender was filing a motion to have his sentenced reduced, Gayles filed his own motion attempting to fire his public defender, who he said convinced him to take a blind plea deal without adequately communicating the potential consequences. He ultimately opted to keep his attorney.
Pollock said in these sorts of situations, it's the system, not necessarily the individual attorney, who is at fault.
“These are some of the best lawyers you are ever going to find,” Pollock said. “We know more about the law than anyone else because we are exposed to it day after day after day. It is all that we do. And yet there’s this disparity of opinion between us, where people somehow think, ‘Well if I pay for an attorney, I’m going to get higher-level or more skilled representation.’”
Pollock said trust and communication are paramount, even when public defenders are overworked. Knowing this, she spends most weekends making jail calls and visits.
“You can file the most kickass motion to suppress in the world,” she said. “You could win a hearing. But if your client isn’t able to get ahold of you, that is the root of every problem,” she said.
Pollock has made many attempts to get more funding from Champaign County, but there comes a point where there’s nothing left to give.
“You can’t just manufacture cash out of thin air,” she said. “There’s no more money at the county level. And it just has always been that way, since the public defense system was created.”
Independence, oversight—and more lawyers
Kollmann said money is just half the battle of public defenders mounting a "meaningful defense."
“Since the 1970s, shortly after Gideon v. Wainwright, national standards have said that public defense appointment needs to be insulated from both judicial and political influence,” she said. “In Illinois, the chief public defender in almost every county is appointed by the chief judge of the circuit. So especially in smaller counties, what you can end up with is an attorney appointed by the very person that they're appearing in front of."
The goal of the FAIR Act is to bring state oversight and advocacy to the public defense system — in essence, a zealous advocate for each defendant's zealous advocate. In addition, the office provides resources and training to make sure public defenders have everything they need to defend their clients effectively, and sets limits on attorney workloads. But with no correlating change in defendants in need of attorneys, that means public defense offices need more lawyers.
The Pretrial Fairness Act didn't help
McLean County’s office has historically kept public defender caseloads within range. But one of the catalysts for introducing the FAIR Act stems from the 2023 Pretrial Fairness Act that eliminated cash bail in Illinois. This gives accused people the right to a detention hearing, contributing to heavier workloads for both public defenders and prosecutors.
In an email, McLean County State’s Attorney Erika Reynolds said they average 1-2 pretrial detention hearings a day. And the added work created by the Pretrial Fairness Act and already overtaxed public defenders trickles outward to other areas of the criminal justice system.
“Let’s face it, this came out of a study done by the [Illinois] Supreme Court,” Pollock said. “When they looked at it, every single stakeholder in the justice system agreed we need to change something.”
Case in point: At a hearing on Aug. 5, Judge William Yoder denied a motion Marcus Folks filed on his behalf to have his case moved out of Judge Jason Chamber's courtroom. Yoder denied the motion, coaching Folks about what it would take to meet the standard of judicial bias. He spent time explaining court protocol when Folks attempted to preemptively object to the prosecution’s statements.
Pollock said state's attorneys, judges and the bar association have all signed on in support of the legislation.
“It is in no one’s interest for the public defender to be so under resourced to not be able to do their job appropriately, which results in things like ineffective assistance of counsel claims, reversals on appeal, post-conviction petitions — I mean, justice can never be final unless it is fairly litigated in the trail court,” she said.
The FAIR Act is currently sitting on Gov. JB Pritzker's desk awaiting final approval.
