The states of public defense: part two

A review of the indigent defense systems in Colorado, Connecticut, and Delaware

Denver public defender Alice Norman, with a client (Photo By Craig F. Walker / The Denver Post 2014)

Note: This part two of my series looking at the indigent defense systems in every state. You can read the introduction here, and part one (covering Alabama, Alaska, Arizona, Arkansas, and California) here.

I had planned to include Georgia and Florida in this post, but the situation in those states is bad enough to merit a separate post.

As always, I’m always interested in learning more about indigent defense, both in states I’ve already covered and in the states to come (Florida in particular!).

If you do indigent defense work and would like to share a tip or tell me about your experience, please feel free to drop me an email.

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Colorado

Approximate per capita spending on indigent defense: $22.41

Ratio of DA budget to public defense budget: Expenditure ratio is 1.92:1. Payroll ratio is 2.13:1.

Ratio of state-level police spending to state-level indigent defense spending: 30:1

Colorado’s public defense system is funded and administered at the state level, and the entire state is served by dedicated public defender offices. For years, the state has generally been seen as one of the best-run indigent defense systems in the country.

But in recent years there have been some signs of strain. Most notably, as with several other states, municipal courts are not covered by the state public defense system. These local courts handle misdemeanor cases, which include charges that can still results in jail time.

About 10 years ago, it became clear that some localities weren’t providing for indigent defense in these courts. So in 2016, the legislature passed a law requiring towns and cities with a municipal courts to provide indigent defense. In 2019, the state then passed another law requiring that representation to be independent and competent (which is an odd thing to need to do). Most municipalities do this by contracting with private attorneys, but in Denver and Aurora, Colorado now home to two of a just a handful of stand-alone municipal public defense offices in the country.

Aurora is considered the model for such offices, and it’s a fascinating case study. Most (but not all) crimes prosecuted in municipal courts are misdemeanors. But even misdemeanors can come with up to a year in jail and crippling fines.

These crimes are prosecuted by the Aurora city attorney, not the DA’s office. And the city attorney’s office doesn’t make charging decisions the way a DA’s office would. It’s basically left to the discretion of Aurora police. That’s especially problematic because the Aurora police department has long been plagued by persistent allegations of racism, corruption, and brutality. The death of Elijah McClain and ugly aftermath is the most well-known incident. But the problems go well beyond that. The department is currently under a consent decree with the state.

Consequently, according to my sources, the public defender’s office ends up handling a lot of charges that don’t stick — particularly the class of cases you might call “contempt of cop.”

Here’s the remarkable part: Attorneys in the office told me they win about 70 percent of cases that go before a jury. A large percentage of the remaining cases are dismissed by judges before they get that far. In the month before I started researching this post, for example, the Aurora office defended over 1,300 criminal charges. Less than 100 of those ended with a conviction.

These are extraordinary figures. Prosecutors typically win 90% or more of cases that go to trial, and when you factor in plea bargains, their conviction rates can climb well above 95 percent. The scary part is that without competent representation, many of those 1,200 people who were acquitted or had their charges dismissed would have ended up with a conviction.

But the Aurora office may also be a victim of its own success. “They’re very good at what they do,” one attorney familiar with the Aurora office told me, referring to the public defenders. “But the more success they have the more the conservative city council members want to do away with them.”

It’s a difficult hazard to for the office to negotiate — doing their job well often means embarrassing police, prosecutors, and city officials.

Consequently, the office has struggled for adequate funding. A 2021 study of the Aurora system by the National Legal Aid & Defender Association found that Aurora officials haven’t provided the office with the staff and resources necessary to adequately defend people. Despite their success, trials still take up a lot of an attorney’s time, and Aurora public defenders are already handling 800-900 cases per year, per attorney. That’s well above the standard recommendation for misdemeanor offenses. The city also passed a new law with stricter sentencing guidelines, including mandatory jail time for shoplifting, stealing from cars, and failing to pay a restaurant tab.

And some Aurora city council members, police, and prosecutors aren’t satisfied with merely under-funding the office. They’ve threatening to drastically cut funding, or to get rid of the office entirely by moving to a flat fee system with private attorneys (a system widely recognized to provide ineffective representation).

Here’s how crazy this debate has become in Aurora: In addition to low-level offenses, municipal courts in Colorado also often handle domestic violence cases. The Colorado legislature is currently considering a bill that would bar municipalities from using a flat fee system to provide indigent defense in domestic violence cases. The two conservative Aurora city council members pushing privatization have actually suggested dropping domestic violence prosecutions if that bill passes, so they can still privatize the office. As local reporter Max Levy points out on X, because the two counties that Aurora straddles both face budget problems, this likely means those cases would fall through the cracks. In other words, these city council members would rather not try domestic violence cases than have a competent and effective public defender office.

“I’ve been the state public defender, and I’ve worked in all sorts of courts in Colorado and elsewhere,” says Doug Wilson, who recently headed up the Aurora office. Wilson also had two stints as Colorado state public defender which together put him in the position for 15 years. “The public defenders in these municipal offices are some of the hardest-working, most talented lawyers I know.” He added, “And they have to be. I saw more constitutional violations in three and-a-half years at the Aurora municipal courtroom than in every other public defense job I’ve had.”

The municipal public defender’s office takes a holistic approach to indigent defense, helping clients navigate not just criminal charges, but the secondary harm from an arrest, such eviction, custody problems, or losing a job. If we truly want to help people rehabilitate and get back on their feet, a holistic approach makes sense even for guilty people. But it’s even more important in a city where a lot of people seem to be charged with crimes on very little evidence.

Conservatives in Colorado have denigrated the holistic approach as “social work.” This editorial in the Colorado Springs Gazette is typical:

An enlightening Gazette report this week compared and contrasted how Colorado’s three biggest cities — Denver, Colorado Springs and Aurora — provide lawyers to those of meager means facing petty offenses in municipal court. What emerged in the coverage is how the two cities that staff their own public defender offices have wound up assisting clients through the “life situations” that purportedly got them in trouble with the law.

Aurora’s Chief Deputy Public Defender Elizabeth Cadiz said her office does, “anything and everything you could possibly think of for helping clients, like directing them to resources to help them get clothes or food, find childcare when they're expected to be in court…”

Blaming suspects’ criminal behavior on low income insults all the Coloradans of limited means who manage to get by without breaking the law.

Meanwhile, it insults taxpayers to recast public defenders as social workers.

Outside of the municipal courts, the long-admired state system in Colorado has also encountered problems of late. The shutdown of courts and loss of staff during the pandemic and the corresponding increase in some types of crimes have spiked caseloads. According to the state’s public defender agency, the typical public defender in Colorado has 100 open felony cases (that’s a snapshot — the annual number of cases is likely quite a bit higher), and caseloads have steadily increased since 2020. The number of annual criminal jury trials in the state exploded from 2,700 before the pandemic to 14,600 in 2021.

Over just the last couple years, 40 percent of the state’s regional public defense supervisors have quit, and the attrition rate among all public defenders is 22 percent. As in other states, the attorneys most likely to leave tend to be those with the most experience. The situation has reached the point where the state’s public defenders have unionized.

My sources in the state say the high attrition rate among line defenders is due to overwhelming caseloads, while the turnover among supervisors has been driven by differences with the current state defender, who critics say should have used more COVID relief money to hire new attorneys to ease those workloads. In fiscal year 2021-2022, Colorado’s 534 public defenders handled 180,000 total cases, or an average of 334 per attorney. That’s double last year’s RAND study recommendations for the yearly maximum for attorney only taking the least time-consuming cases — probation and parole violations.

A new study released earlier this year found that between the increased in charged crimes and the proliferation of digital evidence, the average public defender in Colorado now has 45 times more discovery to review for each case. The study estimated that the state would need to triple the number of public defenders currently on payroll to bring the state into compliance with caseload recommendations.

But there are also problems that can’t necessarily be solved with more money. The state has 22 judicial district, each with a public defender office. But not all those positions are equally coveted. “Everybody wants to work in Denver,” Wilson says. “Nobody wants to work in the rural areas. So you get a lot of dissatisfaction, especially when caseloads start to climb.”

Colorado’s public defender system is currently about 20 percent understaffed. Lee Enterprises reporters found that in about 40,000 criminal cases over the last four years, indigent defendants in the state had no assigned attorney at all. And in about 20 percent of misdemeanor cases that could have brought jail time, the defendant was also never provided with an attorney.

While the state system did get a funding boost in 2023, Colorado still has twice as many prosecutors as public defenders, and the total prosecutor payroll is twice that of public defense, even though public defenders handle about 70 percent of criminal cases — and a higher percentage of serious felonies.

Because staffing hasn’t kept up with the increase in charged crimes, the average caseload of a Colorado public defender has increased by 47 percent over the last 10 years. Since 2015, the budget of state DAs has increased by $64 million, while public defense budgets increased by $34 million. Prosecutor offices used part of that money to hire 180 new attorneys, while public defenders hired just 80.

It’s more than a decade old, but this 2011 article from Aspen typifies the attitude that causes such disparities. Despite already overseeing a budget five times larger than that of the public defender’s office, the DA in Aspen at the time had requested another large funding increase, while public defender salaries were frozen. In defending the request, the DA told a local newspaper, “Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals.”

Colorado charges a $25 application fee to obtain a public defender. At their own discretion, the state’s courts can also require indigent defendants to pay up to the full cost of their legal defense, and repayment can be a condition of probation or parole. The fees and reimbursement collected from defendants go to the state general fund.

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Connecticut

Approximate per capita spending on indigent defense: $17.69

Ratio of DA budget to public defense budget: 1:1

Ratio of state-level police/corrections spending to state-level indigent defense spending: 32:1

Connecticut’s system is entirely funded and administered at the state level, and delivered via dedicated public defender offices. The Public Defender Services Commission that oversees indigent defense is also independent. When the main public defender office has a conflict in a case, it’s handled by outside counsel on an assigned or contractual basis.

In 1995, the ACLU filed a lawsuit alleging Connecticut was inadequately funding its indigent defense system. That lawsuit brought a substantial increase in the indigent defense budget, which resulted in a pay increase, 80 new attorneys, and a 40 percent reduction in caseloads. With those changes, the ACLU dropped the lawsuit.

In a decision a few years later, the state’s supreme court ruled that public defenders could carry no more than 525 to 575 cases at a time. While it’s encouraging that the court would recognize some limit, the limit it set was well in excess of the 1973 ABA standards, and five times what the RAND study recommends, for even the least time-consuming cases.

Yet a decade later, Connecticut had just 200 full-time public defenders handling 90,000 cases per year, or an average of 450 cases per attorney. I found that figure in a 2011 Hartford Courant article about proposed budget cuts to indigent defense. The following year, the state ordered the public defender office to cut 45 part-time/contractor jobs and 33 permanent positions, and slashed its budget by 7.5 percent.

Last year brought a new crisis, as several experienced attorneys resigned from the state public defender office. They cited large and increasing caseloads, low morale, and mismanagement. Chief public defender TaShun Bowden-Lewis responded to local media that no attorney in the state system works more than 375 cases at a time — which is a pretty remarkable defense of the system. Last year’s RAND study put the maximum number of the lowest-level cases an attorney can ethically handle each year at 154.

Other attorneys told local media that even the 375 figure was just a snapshot, not the number of cases attorneys handle annually, and argued that even that number likely undercounted actual caseloads. The state office did hire 36 new full-time staffers in 2022, but lost 68, for a net loss of 32.

Bowden-Lewis was reprimanded by the Public Defender Services Commission for low morale, high caseloads, and a toxic work environment, and last February she was put on leave. Bowden-Lewis herself has alleged that the accusations against her are rooted in racial discrimination. Her tenure has obviously been controversial, and attorneys to whom I spoke had mixed opinions of her. I’m not nearly familiar enough with the dynamics in Connecticut to have an opinion on the matter. But everyone agreed that the feud hasn’t been good for public defense in the state.

In fiscal year 2022, Connecticut’s 222 public defenders were assigned 20,942 cases, or about 94 new cases each. But after factoring in the 53,000 holdover cases from the previous year, the average caseload swelled to 333.

The state also contracts about 36,000 conflict cases each year to private attorneys, including most habeas work. Connecticut doesn’t appear to track the caseloads of those attorneys. In testimony before the state legislature earlier this year, Bowden-Lewis said the number of private attorneys willing to take such cases was rapidly declining.

In response, the state did finally raise the hourly rate for contract attorneys increased earlier this year, for the first time since 2007. One contract attorney told me the increase is way overdue, and doesn’t fully cover the increase in the cost of living since 2007.

Prior to the raise, the state paid $65-75 per hour to contract attorneys, well below what other New England states pay, and far below what it Connecticut attorneys who contract with the governor’s or attorney general’s office, which ranges from $350-600 per hour. In fact, even after the raise, contract attorneys who take indigent cases still make well below the $150 per hour paid to paralegals who contract with those offices.

Post-conviction work is mostly contracted out to private attorneys as well. “Backlogs, particularly in habeas, are a major issue,” one private attorney who does contract work wrote to me over email. “This is not helped when our appellate courts avoid deciding issues on the merits by saying that trial counsel didn’t perfectly preserve the issue so it’s not going to be reviewed – all that does is push the issue to an ineffective assistance claim.”

This attorney also mentioned how much more digital evidence there is today than in the past. “You had mentioned the increase in digital data. One weirdness of Connecticut is [a procedural rule] which limits our ability to give state provided discovery to our clients for them to review on their own time. It’s a royal pain as it requires us or staff to nursemaid documents, even things like lab reports, unless the prosecutor or judge permits us to just let the client have it.”

Despite these problems, Connecticut’s contract habeas attorneys have notched some important wins. They exposed some alarming problems in the state crime lab, including shoddy work from celebrity forensic analyst Henry Lee.

Interestingly, Connecticut’s 2023 budget actually allocates more money for Public Defender Services than for Division of Criminal Justice, the agency that handles prosecutions. Of the states I’ve looked at so far, it’s the only state that does.

But there are some caveats. Defense attorneys in the state point out that public defenders also handle child protection and family services cases, which aren’t prosecuted by the Division of Criminal Justice, but by a different agency with its own budget. So comparing prosecution and defense budgets isn’t an apples to apples comparison. They also point out that when it comes to investigations, prosecutors have the full use of police departments, while public defenders pay investigators out of their own budget.

Still, when it comes to prosecution versus public defense expenditures, Connecticut comes far closer to parity than most states.

Connecticut does not charge an application fee to obtain a public defender. The state’s courts can require defendants to pay up to the full cost of their public defense, but have the discretion to base that requirement on ability to pay. Failure to pay does not appear to be a condition of parole or probation. Any funds collected do go to the public defense system.

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Delaware

Approximate per capita spending on indigent defense: $32.12

Ratio of DA budget to public defense budget: 2.2:1

Ratio of state-level police/corrections spending to state-level indigent defense spending: 24:1

Delaware’s public defense is funded entirely at the state level, and administered by a statewide Office of Defense Services (ODS). Conflict cases are contracted to private attorneys for a flat or hourly fee.

Back in 2010, Delaware’s chief public defender told a local newspaper that the attorneys in his office averaged 218 felony cases per year, 45 percent higher than the 1973 standards, and about three-and-half times more than the maximum number of low-level felonies recommended by the RAND study.

In 2014, the Sixth Amendment Center released a damning study of indigent defense in the state. From the executive summary:

Public defense lawyers in Delaware begin substantive work on a case far too late in the criminal justice process to be effective . . . and the same attorney does not provide continuous representation to each and every client once appointed through to disposition. [This is] a direct result of attorneys not having sufficient time to handle cases properly, including meeting with clients, because workload is not controlled to permit the rendering of adequate representation. Defense counsel, especially on the conflict side, are not supervised nor systematically reviewed for quality against performance standards, partly because there is no systematic training against such standards so that attorneys know what is expected of them.

The report found that the right to counsel kicks in only once/if a defendant is detained to await trial. Those who aren’t detained can slip through the cracks, and may appear at subsequent hearings without counsel, where they can be pressured by prosecutors and judges into pleading guilty. In fact, the report suggests that “slipping through the cracks” didn’t quite capture the problem — among those who aren’t detained, there may have been more defendants who weren’t given an attorney than those who got one.

In 2015, in part in reaction to that study, the state created the ODS to oversee the system and to standardize training and education requirements.

But problems persisted. In a 2017 statement to a Wilmington newspaper, the chief public defender said some public defenders who handle misdemeanors had 1,200 or more cases, 10 times the RAND recommendations, and three times the 1973 ABA maximum.

In 2019, the state supreme court issued an opinion that illustrated the stark consequences of an overworked attorney. In that case, because of a trial the previous week and a heavy caseload, the public defender wasn’t able to meet with a man accused of armed robbery until the morning of the man’s trial. Until then, the man had yet to see any of the evidence the state planned to use against. He was convicted and sentenced to 15 years in prison.

From the opinion:

Although different counsel represented Urquhart at court appearances before trial, for the nearly four months between arraignment and trial, Urquhart received what appears to be one non-substantive phone call and one transmittal letter from trial counsel.65 Trial counsel’s notes summarized the phone call: “Spoke to client. Explained that I was in a trial. That discovery is still forth coming and that I would send it as I received it.”

The grim reality is, in the critical pretrial phase when trial counsel must meet with his client to review the evidence, develop strategy, and prepare for trial, that did not occur. Trial counsel admitted as much when asked by the judge . . .

[T]he Sixth Amendment demands more than the presence the morning of trial of a warm body with a law degree. No one seriously argues that trial counsel’s failure to meet in advance of trial with a client facing a serious felony charge with lengthy minimum mandatory jail time was effective. Under the stark facts in this appeal—no advance discussion with Urquhart of trial strategy, what witnesses to call, how to respond to the State’s evidence, whether the defendant should testify, and no sober conversation with counsel outside the distractions of the morning of trial whether to enter into plea negotiations and accept a plea—the even afforded ten minutes to confer with [the defendant] to discuss the possibility of entering into a plea agreement” defendant should not have to point to any specific event of prejudice and disprove the State’s contention that trial counsel was able to “wing it” enough at trial to satisfy the Sixth Amendment.

All of that said, the situation in Delaware appears to be quite a bit better than in most states. In a 2018 op-ed, ODS chief Brendan O’Neil wrote, “In Delaware, we are fortunate not to have experienced the drastic funding hardships which challenge other indigent defense systems.” Wilmington was also home to a pilot holistic public defense program so successful that it’s now funded by the state.

Delaware does charge a pretty steep $100 administrative fee to obtain a public defender. Payment of that and other unpaid fines or fees can be a condition of parole or probation, but the state does not require indigent defendants to reimburse the state for any part of their defense. The fees are also not part of public defense funding in the state.

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