Public defender pay raise shakes up staffing in Minnesota county attorney offices

For the first time in decades, Minnesota’s public defenders are now being paid as much as prosecutors and it’s resulting in droves of county attorneys pivoting to public defense.

The Minnesota Legislature over the summer approved a dramatic pay increase for public defenders. Since then, two elected county attorneys have joined public defender offices and 21 assistant county attorneys followed suit, said Robert Small, director of the Minnesota County Attorneys Association. Recruitment and retention challenges because of pay and dwindling applicant pools, especially in greater Minnesota, predate the historic pay raise, but Small said those issues seem exacerbated.

Small said he knows one full-time prosecutor who left to make $60,000 more as a public defender. A growing number of counties are trying to stay competitive in response. Job openings on the county attorney association’s website lists 25 positions and several tout a new pay scale and hiring incentive.

The McLeod County Board in December approved a massive salary boost of 43% for its top prosecutors, leaping from $136,000 to $195,000. Commissioners acknowledged the county has lagged in wages for years, but that disparity is greater now.

“It’s going to be a leap-frogging situation,” said Bob Kolstad, union steward for public defenders in Hennepin County. “They are trying to catch up with us and we’re trying to catch up with them.”

Bill Ward, chief public defender for Minnesota, said since the new salaries went into effect in August, they’ve hired nearly 70 full-time attorneys. A new starting salary is $80,000.

“Let’s face it, it was a kick in the face that they weren’t making the same as the people prosecuting their clients,” he said. “Our folks are happy with what they got, but they should have gotten this 10 years ago. ... We really wouldn’t have the seesaw effect had we been funded where we should have been for a long, long time.”

“I think it’s great for citizens to have wonderful lawyers on both sides because it just makes the system fair,” he said.

The Ramsey County Public Defender’s Office hired a handful of prosecutors, but the head of the office, John Riemer, said that those hires used to be public defenders. They left those posts because of pay inequities, but their passion is public defense.

Mike Berger, chief public defender in Hennepin County, said his office hasn’t acquired many former prosecutors since the pay bump. But what he did see was a now nationally competitive baseline pay, bringing in more Ivy League candidates.

“It’s the most dynamic recruitment tool ever,” he said. “The national candidates that I received for positions was mind-boggling.”

Although there is excellent talent from local law schools, Berger said there is a premium on attorneys with experience. Those seasoned lawyers are now looking to Minneapolis, which Berger knows is a luxury compared to greater Minnesota where it remains a challenge to fill positions.

St. Louis County Attorney Kim Maki said a senior prosecutor left to make up to $30,000 more in public defense, and she is losing another to the U.S. Attorneys Office expanding this year with a position in Duluth.

“We are three prosecutors down — two in Duluth and one on the Iron Range — and we’ve been trying to hire for quite a while and have had a lot of difficulty,” Maki said, describing the applicant pool as small and bleak.

The office was seeing 40 to 50 applicants with every opening. Now, she said, one or two people apply. She’s concerned the crushing caseloads will lead to further burnout and more departures. There’s also a burden on victims, defendants and the community when cases are delayed due to being understaffed.

“This isn’t sustainable,” she said. “We need to get some people in the door.”

The County Board did approve pay raises for attorneys in the middle of their contract to retain staff. She said they are looking to recruit more people out of law school while talking to them at career fairs to try to sell them on the benefits of moving to Duluth.

Beltrami County Attorney David Hanson said his office consistently has one of the highest number of caseloads per attorney in the state. Staff can leave for less work and more pay, he said, as a public defender, judge or in private firms.

“Even though the job of a county attorney is pretty much the same no matter where you’re at, the pay is so dependent on the geography,” he said, adding that it’s difficult to recruit qualified staff outstate when public defenders’ pay range “is the same whether you’re in Minneapolis, Worthington or Lake of the Woods.”

But the metro area still struggles with a unique host of problems.

“Right now what’s happening is, because of all of this churn, I think other offices are kind of cannibalizing each other,” said Ramsey County Attorney John Choi.

Prosecutor staffing woes are happening across the U.S., according to a recent research paper by William and Mary Law School Professor Adam Gershowitz.

He found that law students seem more interested in public defense, especially since the murder of George Floyd by a Minneapolis police officer. The pandemic also took a toll by creating a massive case backlog, he said, leading to further burnout and lower morale.

Minnesota’s largest public law office saw an exodus of attorneys in 2023 offset by new hires.

There were more than 60 departures from the Hennepin County Attorney’s Office last year. The office hired 70, for a net addition of nine staffers in 2023, which is slightly below recent years, according to staffing data from the office.

The office sits at a 12% vacancy rate, which hovers in the middle of Gershowitz’s research of some 50 cities around the country.

Adam Tomczik, president of the labor union representing attorneys and legal staff employed by Hennepin County’s three public law offices, said the county attorney’s office is experiencing an unprecedented attorney turnover.

“The good news is that the leaders of the three Hennepin County public law offices all support higher wages for attorneys and legal staff. Our leaders realize that this is a crisis that will not improve without attention.”

He called on the County Board to act swiftly as vacancies create problems for clients, victims, law enforcement, defendants, respondents, jurors and the public. “Nobody benefits from an underfunded legal system,” he said.

In response to a list of questions to Hennepin County commissioners, a county spokesperson said in a statement that the union is in the final year of a three-year contract. “Collective bargaining will begin in just a few months, and we anticipate compensation for attorneys will be a central consideration,” spokeswoman Carolyn Marinan said.

Hennepin County Attorney Mary Moriarty declined interview requests. In a statement, she said prosecutors deserve appropriate compensation for their incredibly difficult work.

“I’ve fought for salary parity in the past and am doing so now for our staff. We’re fortunate to have increased our staffing levels in 2023 but the disparate salaries between county prosecutors and public defenders is impacting our ability to attract and retain high-quality staff. County attorney offices across the state are facing the same challenges.”