Illinois report

FULL REPORT (3.3 MB, PDF file): Sixth Amendment Center, The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services (June 2021).

EXECUTIVE SUMMARY ONLY (1.1 MB, PDF file): Sixth Amendment Center, The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services (June 2021).

In 1963, the U.S. Supreme Court explained in Gideon v. Wainwright that 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. At the request of the Illinois Supreme Court and the Administrative Office of Illinois Courts, 6AC conducted a multi-year, statewide study of the provision of the right to counsel in Illinois in adult criminal cases at the trial level. 6AC’s report concludes that the State of Illinois is defaulting on its constitutional right to counsel obligations.

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. Yet Illinois is one of only seven states that do not have any state-level mechanism to oversee any aspect of trial-level right to counsel services. As a result, 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 cannot know how much the provision of indigent representation should cost nor how to provide it effectively in all 102 counties.

As this evaluation shows, 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.

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. Instead of protecting the independence of the defense function, as constitutionally required, the state’s framework 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. The county boards and circuit court judges 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.  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.

Any solution must address both the independence and the oversight that are currently absent in Illinois’ indigent defense systems. 6AC’s recommendations offer Illinois policymakers a broad framework for establishing an independent state public defense commission to set and enforce binding statewide standards, supported by a central office to ensure accountability through periodic reports on the key indicators of systemic effectiveness of right to counsel services, including the early appointment of qualified and training attorneys, who have sufficient time and resources to provide effective representation under independent supervision.