The Aurora City Council’s decision to consider privatizing the Public Defender’s Office has been met with resistance from the American Civil Liberties Union (ACLU) of Colorado.
The council, as reported by Sentinel Colorado, passed Resolution 2023-118 on October 9, 2023, initiating an analysis into the financial benefits of shifting to a private model for legal representation of indigent defendants.
According to Cornell Law School, a person is indigent in the legal sense when they are “impoverished, or unable to afford the basic necessities of life.”
If approved, the privatization of the Public Defender’s Office would involve a significant shift from the current publicly funded and operated system to one that is managed by private entities. This would mean that the services provided by the Public Defender’s Office, which include legal representation for those who cannot afford a lawyer, would be outsourced to private law firms or individual attorneys. Advocates of the proposal suggest this could reduce expenses while maintaining service quality.
However, in a December 2023 letter to the council, the ACLU cautioned that “Privatization of indigent defense services will likely cost the City of Aurora millions of dollars long-term,” explaining that the current freestanding public defender office is the gold standard and represents significant cost savings over alternative models like flat-fee or assigned-counsel systems.
Policy Counsel Catherine Ordoñez of the ACLU of Colorado warned against abandoning the city’s current model, which she views as a cornerstone of fair and effective legal defense for Aurora’s indigent population.
“The decision to provide any other kind of indigent defense—whether by flat fee or hourly rate—would be a step backward for the City and its residents,” Ordoñez said, stressing the importance of maintaining the status quo operations of the Aurora Public Defenders Office.
Emphasizing the legal and financial risks, the ACLU points out that flat-fee legal arrangements present a conflict of interest by financially motivating attorneys to minimize casework, as trial expenses reduce their earnings. This system would encourage less effort per case and a higher case volume, potentially compromising individual case quality and the client’s right to thorough counsel.
Furthermore, the ACLU’s letter outlines that the Request for Proposals (RFP) process posed by the resolution presents significant conflicts of interest and is inconsistent with state and municipal law, stating, “Under current law, the Aurora Public Defender Commission is the only entity with legal authority to contract out the indigent defense services currently provided by the Public Defender’s Office.”
Supporting the ACLU’s stance are findings from a February 2021 analysis led by Maggie Bailey at the University of North Carolina School of Government. Bailey’s research suggests that utilizing dedicated attorneys for criminal defense—commonly referred to as public defenders—tends to be more economical on average and typically results in more favorable results compared to hiring private attorneys or assigning pro-bono lawyers for individual cases. This is echoed by a 2014 American Law and Economics Review report, which indicated better performance by public defenders compared to private attorneys or pro-bono lawyers in similar roles.
Conversely, proponents of the initiative, such as Councilmember Dustin Zvonek, see potential benefits. Zvonek has argued for the fiscal responsibility of the proposal, stating, “If we could save, let’s say, a million dollars annually and provide the same level of service, then I don’t think we would be doing our jobs as stewards of taxpayer dollars by not moving forward and exploring other alternatives.” This viewpoint suggests a belief that privatization could offer a financially prudent path forward without sacrificing service quality.
As the February 26 Aurora City Council meeting draws near, the ACLU of Colorado is intensifying its efforts to advocate against the privatization of the Public Defender’s Office. Armed with data and public support, the ACLU aims to present a compelling case to preserve Aurora’s current model of public defense, emphasizing the system’s proven cost-effectiveness and its crucial role in ensuring justice for the city’s indigent population.
