If you’re charged with a serious crime and can’t afford to hire an attorney, you’re more likely to end up in jail or prison than someone with more money across much of Colorado’s Front Range, according to new research from a half-dozen district attorneys.

People charged with felonies who are represented solely by public defenders have been incarcerated at higher rates than people who can afford to hire private attorneys in five judicial districts across the Front Range, including at times in Denver, Boulder, Jefferson, Arapahoe and Douglas counties, according to the data, which examined cases from 2017 on as part of an effort by eight district attorney’s offices to increase public transparency.

The trend is most clear in the First Judicial District, which covers Jefferson and Gilpin counties, and in the 18th Judicial District, which covers Arapahoe, Douglas, Elbert and Lincoln counties. Both districts saw a shift in 2020 in which felony clients of public defenders began to be sentenced to incarceration more than felony clients of private attorneys.

In 2017, 2018 and 2019, the rate of incarceration was similar for felony clients of both public defenders and private attorneys in those districts. But starting in 2020, a higher percentage of clients of public defenders were sentenced to incarceration.

In 2021 in the 18th Judicial District, 52% of felony defendants with private attorneys were incarcerated, compared to 59% of cases with public defenders. So far this year, 54% of private clients were jailed or imprisoned, compared to 61% of cases with public defenders.

The limited data doesn’t explore why the rates differ, and experts say a number of nuanced factors could be contributing to the differences, ranging from the typical types of cases public defenders handle to the way bail and sentencing often works to the heavy workloads that public defenders carry and the way the data was collected and analyzed.

Workloads and quality of representation

Colorado public defenders made headlines earlier this month when they launched a push to form a union amid what organizers described as overwhelming caseloads, low pay and poor retention.

Public defenders who represent felony defendants “may have more than 100 cases at a time,” the agency said in a November budget request, while public defenders handling misdemeanor cases may have “several hundred.” That’s well above the cap recommended by the American Bar Association, which says attorneys should aim for no more than 100 cases annually, much less simultaneously.

Since 2020, the number of cases assigned to the Office of the Colorado State Public Defender has been trending up and cases are taking longer to resolve, according to the budget request.

But while it might be tempting to look at the higher incarceration rates for clients of public defenders and conclude that they do a worse job than private attorneys, that’s not a fair conclusion to draw from the data, said Lauren Gase, senior researcher for the Colorado Evaluation and Action Lab, which helped to compile the research.

“This is intended as a diagnostic tool and we haven’t controlled for other things that might impact incarceration,” she said. “…We were a little torn on whether to, because of these challenges, even present this indicator. It’s like we are comparing apples to oranges because of the tendency for people to think about it as quality of representation.”

Researchers aimed to use the data as a way to examine how defendants’ socioeconomic status impacts their outcomes in the justice system, not to compare the job performance of private versus public attorneys, she said.

The data looks only at people charged with felonies who were represented by public defenders or private attorneys throughout their case, and excludes defendants who relied on a public defender for some portion of their case before hiring a private attorney. It also includes private attorneys appointed as alternate defense counsel.

“It ends up raising so many more questions than it definitively answers,” Gase said of the data.

In a statement Thursday, the public defenders organizing the Defenders Union of Colorado said they had not reviewed the raw data or methodology behind the research.

“To the extent this report may be accurate, it highlights the desperate need to increase support for Colorado’s public defenders who fight every day against a racist and unjust system,” the statement read.

James Karbach, director of legislative policy for the Office of Colorado State Public Defender, said the agency aims to provide clients with the same quality of representation they’d receive from private attorneys.

“I don’t think public defenders are doing a worse job than private attorneys,” he said. “I do think that public defender clients have less resources than private clients, they’re more likely to suffer pretrial detention — because we tie that to wealth instead of risk — and so for a lot of reasons, they’re more likely to be in jail while the case is going on… and it’s easier to keep someone incarcerated incarcerated.”

Types of cases

In Colorado, people qualify for a public defender if they can’t afford a private attorney or if they are in jail.

That means public defenders often represent clients who are jailed while their cases are pending, whether because they could not pay bail, because their past criminal history prevents their release, or because of the seriousness of the accusations against them, among other reasons.

“There is some indication that the public defenders are getting individuals with potentially more serious cases, and then because it’s more serious, it is more likely to lead to incarceration,” Gase said.

People in jail pending trial may also be more likely to plead guilty, Gase suggested, because they are motivated to get out of jail as soon as possible. Someone facing charges who is not jailed may not feel that same pressure, she said, which could also impact the difference seen in incarceration sentencing rates.

Additionally, judges also often sentence a person who has been jailed pretrial to time served, Karbach said, which is counted as incarceration under the data released by the district attorneys.

“If you sit in jail for three months because you can’t post your bond, a lot of times in recognition of that time, you get a probation deal and (judges) will say two years probation with 90 days of jail, with 90 days of credit,” he said. “And they’re still letting you out the day of the plea. Whereas if you were never in jail, they’ll just say two years of probation and never send you to jail. And that has nothing to do with the performance of counsel, that just has to do with the fact you suffered incarceration until you got your deal.”

People who aren’t jailed pretrial are more likely to be represented by private attorneys.

Karbach said the Colorado public defender’s office doesn’t have confidence in the researchers’ conclusions because of the multitude of factors that impact how felony criminal cases are resolved.

“We’re not sure this data is even valid or that the methodology is sound,” he said.

Boulder County District Attorney Michael Dougherty, who was one of the district attorneys who participated in the research project, noted that a defendant’s past criminal history can have a significant impact on cases, and that was not considered in this particular analysis.

“If someone comes into the justice system with 20 prior convictions, and someone comes in the next day and they have one arrest and they hire a private defense attorney, the different outcome doesn’t have so much to do with the attorney as the criminal history,” he said.

But Dougherty said he hopes there will be an additional investigation into the findings to pinpoint what key factors might be driving the differences between clients represented by public and private attorneys.

“This data is a starting point, and we should not ignore it,” he said.