The FAIR Act is proposed legislation that would establish an Office of State Public Defender and an independent State Public Defender Commission to appoint the State Public Defender. The Office and Commission would:

• set standards for attorney workload, training, and resources, free of judicial and political influence;

• appoint Chief Public Defenders;

• assess each counties’ need for additional resources;

• distribute funds to counties’ public defense offices; and

• gather, analyze and release data.

The State of Illinois has a constitutional obligation to provide representation to individuals who cannot afford private attorneys. However, the State cedes decisions regarding public defense to county boards and local judges without any state oversight or standards. This means that the provision of public defense - and the right to counsel - rests in the hands of elected officials. Not one county has sufficiently funded its public defense system.

Without a statewide oversight agency, the State of Illinois cannot guarantee that local elected officials are fulfilling its duty. When elected officials make decisions about constitutional rights without any oversight, conflicts of interest and due process violations arise. The quality and quantity of public defense services varies greatly from county to county, depending on elected officials’ allocation of funding for public defense. This again places the State’s constitutional obligation - and the rights of Illinois residents - in the hands of those who not only lack training to provide adequate public defense but also possess unchecked authority. This excessive power, without proper oversight, risks arbitrary decisions that undermine the state’s ability to uphold its residents’ constitutional rights.

Independence in public defense is crucial for ensuring that defense attorneys can represent their clients without outside influence, bias, or pressure. When public defenders are free from judicial and political control, they are better able to advocate vigorously for the rights of those they represent. This independence helps prevent conflicts of interest, promotes fairness, and protects due process by allowing public defenders to focus solely on providing effective assistance of counsel - their constitutional and professional obligation. Independent public defense systems are essential for upholding constitutional rights and ensuring that all individuals receive fair treatment under the law, regardless of income.

A centerpiece of any state approach to public defense is centralized oversight and funding for public defenders which ensures a more consistent and effective legal representation. Whereas Illinois’ 102 counties control, fund and supervise their counties’ public defenders. If the FAIR Act becomes law, Illinois will be designated as a hybrid approach as the existing county public defenders and offices will remain and over time will receive supplemental funding and staffing from the state.

Illinois is one of three states without any state oversight. While oversight structure varies between the other 47 states, all have an entity designated to ensure the state meets its constitutional obligation to residents.

The FAIR Act contemplates a gradual two-year implementation process to establish the Office of State Public Defense. The Illinois Judicial Conference Criminal Indigent Task Force proposed $23,153,968 as an initial budget for their recommended Administrative Office of Public Defense, which includes increasing the current Public Defender Fund from $10 million to $15 million and allocating $8.2 million for the work of the new entity.

Strong public defense systems increase fairness and justice in the criminal legal system. High-quality legal representation helps taxpayers avoid costly litigation, such as challenges to wrongful convictions and class-action civil rights suits, and helps residents feel confident that their rights will be defended without family members having to mortgage their homes, for example.

The Illinois Supreme Court commissioned the Sixth Amendment Center to conduct an evaluation of Illinois’ public defense system. The report concluded that Illinois’ public defense delivery system is inadequate due to lack of oversight and independence. In response to the report, the Illinois Judicial Conference created the Criminal Indigent Defense Task Force to develop recommendations for improving Illinois’ approach to the delivery of public defense. In FY 24 and 25, the State appropriated $10 million to the Public Defender Fund.  There is scant data or complete information about the the distribution and spending of the Public Defender Fund’s appropriations.