Why We Unionized the Public Defender


By Defenders Union of Colorado

Public defense is in crisis around the country according to legal experts. This crisis stems from two inextricably intertwined problems. First, as noted by NPR in March 2023, indigent defendants receive inadequate and constitutionally ineffective assistance. Second, public defenders are overburdened, burned out and resigning in droves.

Colorado’s state public defender system is in the midst of this crisis.

The Defenders Union of Colorado formed to address these systemic illnesses. DUC includes administrative assistants, investigators, paralegals, social workers and attorneys. Our mission is to improve service for clients and working conditions for all Office of the State Public Defender employees.

These goals go hand-in-hand. Excessive workloads, unchecked for years and exacerbated by the pandemic, spread defenders thin. The unrelenting, extreme caseloads eventually lead even the most devoted defenders to burn out, causing unsustainable attrition.

OSPD noted in its Fiscal Year 2023-24 Budget Request that in fiscal year 2022, the office “lost 119 attorneys with an average of 4.6 years of service,” and stated “[a] high attrition rate of seasoned staff contributes to unmanageable caseloads, which inevitably exacerbates stress levels, damages morale throughout the agency, and creates the risk that the OSPD will be unable to fulfill its obligations to clients.”

The most experienced, committed, passionate defenders leave to avoid burial in an avalanche of work demands and “moral injury,” a type of burnout discussed in a 2022 Public Defenseless podcast. Clients suffer the loss of invaluable experience and ever-shuffling personnel.

The need for change is unmistakable. After nine months in existence – and despite the lack of state law protections for public sector organizing – DUC estimates its members constitute over 40 percent of OSPD’s nonmanagement employees.

Workload Caps

Workload caps provide an indispensable remedy to the public defense crisis. As discussed in a Colorado Bar Association formal ethics opinion released last year, “[p]ublic defenders must maintain their workloads at a level that ensures competent, diligent representation for each client.” The Rules of Professional Conduct require all attorneys — private and public sector alike — to manage their individual workloads to prevent deficient representation of any current client.

These rules codify certain self-evident truths. There are only so many hours in the day, an hour devoted to one client is one less hour available to another and an overworked, depleted attorney is an ineffective one.

Public defender culture worships work. Where a client’s freedom is on the line, no public defender wants to refuse the call to duty. Only systemic and cultural change can protect our clients from a culture of overwork that results in inadequate representation and burned out defenders. Defined workload caps are the guardrails the system requires to ensure constitutional guarantees.

DUC has called on OSPD to adopt reasonable workload standards. Until and unless OSPD adopts reasonable workload standards, all options must remain on the table to ensure our clients receive constitutionally effective representation commensurate with what nonindigent clients receive.

A Livable Wage

OSPD’s publicly available 2022 compensation survey revealed nonmanagement defenders earn substantially less than their comparable peers in the public sector. For instance, defenders classified as “Senior Investigators” receive salaries 36.4% percent below the market average, OSPD paralegals earn 28% below the market average and OSPD deputy and senior deputy attorneys earn 26.2% below the market average for the public sector. And entry-level administrative staff earn less than forty thousand dollars per year.

OSPD’s survey data doesn’t factor in private sector opportunities, meaning the 98% of positions below market do not even account for those more lucrative opportunities.

For many defenders, OSPD salaries are insufficient to make ends meet. DUC members working full-time for OSPD report giving plasma for money, delivering for DoorDash, and working second and third jobs but still falling short. As one member explained, “any emergency that comes up forces me to sacrifice something important, whether it be rent payments, loan payments, or other necessities.”

Another member stated, “The only months without financial stress are those in which I work substantial overtime hours.” And a third member explained the low wages “made it difficult for me to find safe housing in a metro area, and has prohibited many of my personal goals such as saving for emergencies, starting a family, and affording activities that enable me to de-stress from work.”

Meanwhile, many managers within OSPD’s State Office earn salaries above the comparable market average. For example, the First Assistant State Public Defender’s average annual salary of $205,740 is 7.8% above market average. OSPD’s Chief Trial Deputies earn 11.1% above the market average at $172,674. OSPD’s Senior Human Resources Analyst position averages nearly 12% more than the market average and its Senior Budget/Finance Analyst’s $121,608 salary is 19.1% more than the market average.

DUC has called on OSPD management to remedy wage shortfalls through the office’s legislative budget request. Via a petition signed by 546 OSPD employees, DUC asked OSPD to allocate the funds first to core staff and to all other defenders under market average – and before giving raises to managers already earning at or above market average – until all employees are making the market average wage.

A Seat at the Table

DUC maintains the OSPD lacks transparency on workloads and compensation, among other critical employee concerns.

DUC members want more autonomy, flexibility, self-directed career paths and input in shaping their day-to-day work lives. DUC has called on OSPD management to publicly recognize DUC and join us in pursuing these goals.

DUC believes it is long past time that defenders doing the day-to-day work of representing indigent clients have a real say in their working conditions. DUC submits that the way forward is giving DUC’s members a seat at the table in formulating OSPD’s budget requests, salary distribution, workload management policies and other policies and practices critical to client service and employee satisfaction.

Disabusing Misconceptions/Demythologizing

DUC contends it’s time for state law to recognize and protect public sector unions. DUC has noted unionization will help public defenders better serve clients.

Public defenders in at least 18 states already have collective bargaining rights. Unionized public defenders in Chicago, Los Angeles, Philadelphia, New York, Minnesota, Maryland and New Hampshire are currently working toward better working conditions and improved representation for their clients.

In Colorado, more state law protections are needed. On June 6, Senate Bill 23-111 became law as the Protections for Public Workers Act. The Act provides workplace protections for organizing, against retaliation and for public sector workers, including public defenders, who speak out about concerns with the conditions of their employment.

DUC supported this bill, testified for it and celebrates its passage. This is only the beginning of DUC’s legislative efforts to protect workers and improve OSPD working conditions.

Some argue if public defenders don’t play nice with the other branches of government, specifically the legislature which funds OSPD, they will defund the office.

But a state-funded public defender system is the most cost-efficient manner of providing constitutionally guaranteed representation to indigent defendants. The General Assembly’s Joint Budget Committee reported the average cost per case for OSPD in fiscal year 2021-22 was $646, while the average cost per case handled by the Office of Alternate Defense Counsel during the same time period was $1,581.

DUC will fight to achieve funding that allows OSPD to achieve both its mission — to provide indigent clients with “effective, zealous, inspired and compassionate” representation — and its legislative mandate to provide legal services “that are commensurate with those available to nonindigents, and conduct the office in accordance with the Colorado rules of professional conduct and with the American Bar Association standards relating to the administration of criminal justice, the defense function.”

Protecting Clients and Employees Alike

When defender offices are forced to carry excessive workloads and faced with extreme attrition and the loss of irreplaceable experienced defenders, clients are the biggest losers. Clients receive defenders with insufficient experience for the seriousness of the case. Discovery goes unreviewed. Cases plead out instead of being investigated. Clients receive less communication from their stretched-to-the-breaking-point defenders.

DUC believes adopting sustainable working conditions is the only solution to this crisis. All defenders deserve respect, dignity and reasonable, ethical workloads, along with pay that allows for career-long commitment. Because these minimum standards create the conditions for effective, zealous, inspired and compassionate representation – in fact, not just aspiration – by demanding them, DUC puts clients first.

Public defenders question authority at every turn. DUC believes it is unacceptable to demand that defenders remain silent when it comes to their working conditions and how they affect indigent clients.

Our state has never had a public defender union. It’s time to see what one can achieve.

– To learn more or join DUC (former and retired public defenders are eligible and welcome) please visit https://www.defendersunionco.org/ and find and follow DUC’s accounts on Instagram @defendersunion.co. and Twitter @defendersunionco.

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