Colorado needs three times the number of public defenders it employs today to meet new workload standards for criminal defense, according to a national study backed by the American Bar Association.
For next budget year, which starts July 1, Colorado’s Office of the State Public Defender is asking for 70 more attorneys and 58 new support staff, including paralegals and investigators, at a total cost of $14.7 million.
That’s still far less than the 230 new attorneys the office says it needs – let alone the 700-plus hires it would take to triple current staffing levels to meet the study’s recommendations.
But even the partial request was enough to shock members of Colorado’s Joint Budget Committee.
“It’s breathtaking,” said Rep. Shannon Bird, a Westminster Democrat who chairs the JBC.
The biggest factor driving the need for attorneys is a massive increase in the volume of evidence they must scrutinize in the digital age, a list that includes police dashboard and body camera footage as well as text messages and other electronic media.
All told, attorneys now have 45 times more discovery material to review than they did in 2016, said Megan Ring, the state public defender. That’s left public defense attorneys regularly working 60 to 80 hours a week.
Officials fear the rising workload could raise concerns about whether the state is consistently meeting its constitutional obligations to provide effective legal representation to defendants at trial.
“We are getting overwhelmed with work,” Ring told the JBC in a December hearing. “This is an absolute, absolute need.”
During last year’s legislative session, lawmakers approved pay raises for public defenders that agency leaders say has helped make the job more attractive. But raises alone aren’t enough, Ring said.
The national findings, released in September 2023 by the national bar and the RAND Corp., underscore the dire state of public defense in Colorado at a time when the state’s Democratic majority is pushing to reduce mass incarceration.
“Excessive caseloads violate ethics rules and inevitably cause harm,” concluded the study.
The last time the office requested a major infusion of new attorneys was in 2020, when officials said they needed 36 new public defenders to keep up with steady increases in felony caseloads, in addition to the growth in digital evidence. At the time, the typical attorney’s workload was 47 hours a week, according to JBC documents.
Two years later, lawmakers approved another big staff increase: 104 new paralegals. But the public defender’s office says the paralegals can’t handle all of the work.
Not only do attorneys have to review more evidence than they used to, they also have to staff new courtrooms that have opened in recent years.
Additionally, they work closely with those deemed incompetent to stand trial. But while lawmakers and the Polis administration have pushed to increase funding for psychiatric beds to help the state work through its competency waitlist, public defenders say their role in the process has not received enough attention.
“The state of affairs is that our clients’ constitutional rights are being consistently violated,” said Lucienne Ohanian, Colorado’s chief deputy public defender.
U.S. Department of Justice guidelines direct public defenders offices to limit caseloads for attorneys in line with national standards as well as local needs. The RAND study represented the first major update to national caseload standards in 50 years. Colorado’s last workload study was completed in 2017.
But the sheer size of the request may be too much for lawmakers to swallow – particularly without an updated state-level study to back up the national recommendations. The budget committee this month put off a decision until after the state’s next revenue forecasts in March, amid misgivings from some budget writers.
“I’m very hesitant to take action on this until we know how much money we have,” Bird said at the meeting.
JBC’s nonpartisan staff has recommended approving the new hires, but spreading them over the next two years.
Colorado’s public defender staffing levels may fall short of the resources criminal prosecutors bring to trial, JBC documents suggest.
While district attorneys’ offices along the Front Range employ more than 580 lawyers, the state had just 380 public defenders working in the region as of November 2022. The public defender’s office has around 65% as many attorneys as Colorado prosecutor offices, even as they defend 70% of all criminal cases and upward of 80% of serious crimes.
On the other hand, some budget writers pointed out, prosecutors also have to meet a higher burden of proof – beyond a reasonable doubt – to secure a conviction.
District attorney offices in Colorado are funded by a mix of state and local tax dollars, while public defenders are funded entirely by the state government.
Rep. Emily Sirota, D-Denver, said she was ready to approve it, citing conversations she’d had with public defenders. The workload the state is expecting of its defense attorneys is “unreasonable,” she said. There may be a broader reckoning over public defender staffing still to come. The office is under review by the state auditor’s office – its first performance audit in 20 years.
