Executive Report

Attorney General Opinions

Prisoners and public defenders

80-026: The statutory duties of the public defender do not include representing indigent residents of correctional facilities in legal actions aimed at attacking prison conditions, and residents of correctional facilities have no right under either the Illinois or U.S. constitutions to be represented in such actions. In issuing this controversial opinion Atty. Gen. Tyrone C. Fahner commented: "One can feel a certain reluctance to arrive at an opinion that is potentially harmful to the human rights of people in correctional facilities. . . . Nonetheless, a dispassionate view of the law as it stands is what has been requested. . . and that is what we provide."

The opinion was in response to a query from Livingston County State's Attorney C. David Vogel on petitions filed by residents of Pontiac Correctional Center regarding the conditions of their incarceration. Vogel asked if the Livingston County Board is required to pay the local public defender to represent the prisoners in these actions.

The Public Defender Act, the attorney general said, provides the public defender shall represent indigent persons "who are held in custody or who are charged with the commission of any criminal offense" (///. Rev. Stat. 1979, ch. 34, sec. 5604). The Code of Criminal Procedure further provides that the public defender shall represent indigent persons before arraignment (///. Rev. Stat. 1979 supp., ch. 38, sec. 113-3); on appeal (///. Rev. Stat. 1979, ch. 38, sec. 121-13); and at post-conviction hearing which is limited to attacking constitutional errors in the process by which the defendant was convicted (///. Rev. Stat., 1979, ch. 38, sees. 122-1, 122-4).

But the claims filed by the Pontiac residents concerning prison conditions and allegations of violations of civil rights because of prison conditions are civil actions for habeas corpus, mandamus and injunction. Illinois courts, the attorney general said, have consistently held there is no right to the assistance of a public defender in civil proceedings. In Bounds v. Smith (1977), the U.S. Supreme Court states that prisoners have a fundamental right of access to the courts under the due process clause of the fourteenth amendment, but the ruling does not imply that prisoners have any right to be represented by the public defender on civil claims, the attorney general said.

Fahner's ruling was criticized by the John Howard Association, a prison watchdog group. Robert W. Gettleman, president of the association, said the attorney general's opinion ignores important sections of the Public Defender Act which "affirm, and indeed, compel, the ethical and legal duties of public defenders to represent the interests of their clients fully." If followed closely, the ruling could substantially reduce the number of cases filed by prisoners and deny prisoners meaningful access to the courts, Gettleman said. He also said that Fahner may have stepped out of bounds when he issued the opinion because his office must defend the Department of Corrections in suits filed by prisoners. Fahner replied that his ruling is legally correct, a'nd there is no conflict in issuing a nonbinding opinion.

It is possible a court case could arise out of this controversy, a spokesperson from the John Howard Association said.

February 1981/Illinois Issues/29