A new law designed to reform Illinois’ public defense system is still in the planning phase.
The Funded Advocacy and Independent Representation [FAIR] Act, signed by Gov. JB Pritzker in August, creates a commission and common public defender’s office over the course of two years. The commission is to be formed by July 1, 2026, with a Jan. 1, 2027, deadline to launch the statewide system in earnest.
The need for such an office was partly prompted by a study commissioned by the Illinois Supreme Court, which will be responsible for implementing portions of the legislation. Among the concerns the FAIR Act hopes to address is resource allocation and attorney caseloads in public defender offices.
During a recent visit to McLean County, Illinois Supreme Court Justice Mary K. O’Brien said there are geographic disparities in public defense, in addition to equity gaps between prosecutors and public defenders. State law requires public defender salaries to be 90% of the state’s attorney’s pay, only in counties with populations greater than 30,000 people.
“If you are an assistant state’s attorney in Ford County, you are probably going to make a lot less money than an assistant state’s attorney in DuPage County,” said O’Brien. “And the same with the public defenders. We have to deal with that aspect, that geographically things are different. And in some counties, including some in the 11th [Judicial Circuit that includes McLean County], the overall number of attorneys is aging and getting fewer.”
A study by Northwestern University found the 11th Judicial Circuit, which includes McLean County, does not have enough lawyers, paralegals, investigators and social workers to meet demand — a criticism applied to the Pretrial Fairness Act [PFA] as attorneys and judges saw busier dockets with the addition of pretrial detention hearings.
The Supreme Court upheld the constitutionality of cashless bail, which McLean County law enforcement have said should give more agency to state’s attorneys and judges to decide which defendants should be detained.
O’Brien anticipates lawmakers will continue to “work on it, fine tune it and change things.”
“That’s the nature of the game,” she said. “Whatever the General Assembly decides is the public policy and is the law of the land—once we determine it’s constitutional, then we will implement it as instructed.”
O’Brien and Justice Elizabeth Rochford, who is touring every judicial circuit in the state, declined to speculate how the courts would deal with state and federal law in conflict with one another. President Donald Trump issued an executive order banning cashless bail nationwide, threatening to pull federal funding from states and judicial circuits that implement it even if state law required it.
“Cases come to us,” Rochford said. “We really don’t go looking for the cases. It’s not our role. We really have to wait and see.”
Representation
In September, Illinois’ highest court selected Justice P. Scott Neville as the 123rd chief justice. Neville is only the second Black person to serve in that role, following late Justice Charles E. Freeman, who led the court from 1997-1999. The Illinois Supreme Court is among the most diverse in the country, with a group of five female jurists to two men, and three people of color on the bench.
“We have very different backgrounds, all seven of us, which I’m very proud of,” said Rochford. “It’s a great benefit to us when we sit at the conference table that we have these distinctly different backgrounds, and we all bring something to the table that is of great benefit to the whole.”
But representation among the judiciary remains a challenge within the trial courts. In 2021, Carla Wheeler became the first Black woman appointed to the bench in 11th judicial circuit. Three of McLean County’s 13 sitting circuit judges have experience as defense attorneys, including Wheeler, who was also the county’s first Black chief public defender. McLean County has a track record for putting its former prosecutors and state’s attorneys on the bench, including Judges Yoder, Chambers, Knapp, Eves, Koll and Young—a pipeline that is not unique to McLean County.
While circuit judges are elected, associate judges are appointed.
O’Brien said the circuit judges who appoint them simply see prosecutors at the courthouse more. She encourages attorneys who want a career in the judiciary to get involved.
“As I talk to members of the Bar, I say, your resume won’t always speak for itself,” she said. “Get involved with the Bar. Be someone that is doing work on behalf of the legal community and some of the other charitable parts of the community. That’s how you get known.”
