Opioid settlement cash a boon to Pa. prosecutors but public defenders are being turned away

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As the opioid crisis raged across Pennsylvania, public defenders increasingly represented people whose charges stemmed from their addiction. In Elk County — a sparse mountainous region home to just over 30,000 people — local officials saw opioid settlement funds as a much-needed solution.

Gary Knaresboro, Elk County’s chief public defender, said his office interacts directly with people experiencing addiction. He believes public defenders are often uniquely positioned to intercede to change lives for the better. “I think we have to present that chance to everybody, whether they take advantage of it or not,” he said.

But when Elk County asked the Pennsylvania Opioid Misuse and Addiction Abatement Trust for guidance, hoping not to violate rules governing how to properly use the funds, the body provided a disappointing answer: No.

“Since the services of an assistant public defender are required to be provided by the counties, the costs associated with their position would not be considered an abatement strategy,” the response from the trust’s advisory committee said.

The guidance — which was shared with Elk County and posted on the trust’s website — came as a blow to public defenders in Elk County and across the state, whose work is constitutionally guaranteed, but has long been severely underfunded.

While prosecutors' offices have for years received millions of dollars in reimbursement from the state, until this year Pennsylvania did not contribute consistent funding to indigent defense, leaving counties to shoulder the financial burden.

In December, the legislature approved $7.5 million to aid counties in providing no-cost counsel to people accused of a crime, but the money is unlikely to level the playing field against well-funded prosecutors, experts told Spotlight PA in January.

Prosecutors’ officers also receive funds from the opioid settlements. Ten offices were entitled to more than $4.5 million in opioid settlement money in 2022 and 2023 as part of the state’s distribution plan.

Plans vary in each of those offices. Dauphin County’s district attorney has dedicated money to a diversion prosecutor who works with treatment court programs, and Westmoreland County’s district attorney told Spotlight PA that funds there were earmarked for a detective who works with a treatment and recovery court.

While the trust’s guidance warned against spending money on an assistant public defender, its direction greenlit using the funds for a body scanner at a jail — which Clearfield County did.

“I just have trouble understanding how … body scanners for county jails somehow connect people to treatment and public defenders don’t,” said Sara Jacobson, executive director of the Public Defender Association of Pennsylvania. “When I look at those two things back to back, it just doesn’t make sense to me.”

As of late March, the trust’s public guidance didn’t specifically address using the opioid settlement money on prosecutors. And in the coming weeks, the trust members could revise how money can be spent.

But for now, while public defenders’ offices in other states are making plans for their states’ cuts of the settlement money, some of their peers in Pennsylvania feel the trust’s guidance may further privilege prosecutors.

“It's a huge shame because there is so much of a need across Pennsylvania for more public defenders,” said Jacobson.

After Spotlight PA reached out to her, Jacobson told the newsroom on March 18 that her association asked the trust to reconsider and clarify the issue.

But even if public defenders statewide receive permission from the trust, they might still have trouble convincing county leaders to prioritize their work.

“There are a bunch of different revenue streams that counties and states receive,” said Geoff Burkhart, former president of the National Association for Public Defense. “And they haven't really prioritized public defense in most of these places before. I don't see them doing it even with this new infusion of funding.”

Why public defender offices want the funds

Several years ago, Elk County did not have a public defender on staff, officials told Spotlight PA. The county government contracted with an attorney from the community who provided indigent defense as needed to eligible people.

But in 2018, drug charges became the most common type of new case filed in Elk County, overtaking driving under the influence and property crimes. Local officials say they saw large ripple effects from the opioid crisis.

Amid the influx, the county converted the public defender to a full-time staff position for the first time in recent history. Over the past four years, the office has grown to include an additional part-time attorney and two administrative support staff, county officials said.

Cases handled by the office became more complex, said Knaresboro, whose office often pushes in court for people to enter treatment rather than prison. Where other public defense offices around the state employ social workers, Elk County does not. “We do the work ourselves,” he said.

“A lot of it involves follow-up with people, and see what they're doing, see if they're getting counseling, see if they're getting housing for themselves,” Knaresboro said. “Just so they’re on better footing when I try to negotiate something for them, and try to keep them out of jail.”

When the opioid settlement funds became available, Elk County hoped to use its allotment to support a part-time public defender in the office.

In Pennsylvania, counties agreed to spend their opioid settlement money in a way that’s consistent with a settlement document known as Exhibit E. If they don’t, the opioid trust can withhold and ultimately cut funding from them in the future.

Exhibit E, a 15-page document, does not specifically mention prosecutors or public defenders. But it does leave room for funding various types of strategies and programs that help people dealing with opioid addiction.

Rather than go ahead with the plan in Elk County and risk penalty down the line, Elk County Commissioner Matthew Quesenberry looked to the trust for guidance. But he was told that an assistant public defender would not be considered a proper use of the money, a response that has frustrated him and other local officials who see public defense as a bulwark against other more costly interventions.

“We want to see them be put into treatment, and their first contact for somebody to be able to guide them into that direction is probably their attorney,” Quesenberry said.

The trust’s guidance didn’t cite any parts of the order creating the trust, state law, or settlement documents to justify its rejection of Elk County’s idea. Its response noted that settlement documents do include “programs and services for treatment within the criminal justice system.”

The reasoning the trust gave, that the services of a public defender are already required to be provided, would also apply to a number of other state-mandated services, including prosecution.

Public defenders who spoke to Spotlight PA echoed Quesenberry’s reasoning.

The attorneys and the support staff in their offices, such as social workers and case investigators, are often the main problem solvers for someone dealing with the legal consequences of their addiction, said Julia Burke, first assistant public defender in Blair County.

Because the rest of the criminal justice system is designed to identify and punish offenders, she said, “it is not well-suited to addressing the reason the person offended in the first place.”

“If we could punish the trauma out of someone, this would be a perfect plan, but often it just compounds the issues,” she said. “A well resourced public defender’s office can do much more to try to assist the person in getting the help that they need and ideally addressing all the myriad of collateral issues that impact the person's stability and sobriety.”

Only 15 county public defender offices in the state have a client advocate or social worker, said Jacobson of the Public Defender Association of Pennsylvania. While the trust’s guidance specifically addressed only an assistant public defender position, she told Spotlight PA it created uncertainty over whether the money could be used on other positions within the office.

“It’s starting from a place of them saying no, right?” Jacobson said. “It’s not starting from a place of possibility. … It creates another step and another hurdle.”

In response to questions from Spotlight PA, the trust declined to expand on the reasoning behind its guidance.

Some experts who have been following opioid settlements questioned whether funding for an assistant public defender, or any position that serves a general purpose, would be appropriate, given that some of their responsibilities might be unrelated to drug issues.

When tobacco companies reached settlements with states in the late 1990s, some of those dollars went to general community needs, such as road infrastructure, and “not specific things to help the population most affected,” said Bradley Stein, a psychiatrist and opioid policy expert with the RAND Corporation.

In the case of a public defender or a prosecutor, the details of the spending matter more than which offices the money flows through, Stein said.

“It does sort of strike me that this is more meeting a community's potential needs to better fund their public defender's office, rather than things that might specifically help individuals who have opioid use disorder,” he said.

In some states, public defender offices have been able to apply for these funds.

The Virginia Indigent Defense Commission, a state agency that oversees 28 public defender offices in Virginia, has been awarded nearly $225,000 for a pilot program that places peer navigators in the county public defenders’ offices hit hardest by the opioid crisis, said deputy executive director Timothy Coyne. That money will support the peer navigators and an oversight position within the commission, he said.

In Texas, Chief Public Defender Lynn Pride Richardson is part of a group of other criminal justice offices within Dallas County that hope to create a docket dedicated to opioid-related cases. If their plan is approved, it will be staffed by dedicated public defenders and prosecutors and funded by settlement dollars.

The bulk of the settlement money Dallas County has received will go toward addiction treatment and education in the community, Richardson said, but “nothing I have read or seen anywhere prohibits public defense from receiving those dollars.”

Within the justice system, she said, “probably we are the ones that need it the most.”

How prosecutors in Pennsylvania are spending their money

There’s still limited public information about how counties have spent their funds, and significant uncertainty over what the trust will ultimately allow. In the absence of clarity, counties have made differing and sometimes conflicting judgments.

In partnership with WESA, Spotlight PA has sought spending information from all 67 counties in the state and the 10 district attorneys’ offices entitled to funds based on their role in opioid litigation. As of late March, the only county Spotlight PA identified that is using settlement money on its public defender’s office is Bucks County.

A spokesperson for the Bucks County commissioners told Spotlight PA that opioid settlement money is being used to fund a portion of two positions each in the district attorney’s office and public defender’s office to work in a diversion program. The funding “means the community directly benefits when cases can be diverted, treatment provided, and long-term recovery is achieved,” a spokesperson for the district attorney’s office said.

Westmoreland County District Attorney Nicole Ziccarelli told Spotlight PA opioid settlement funds were earmarked in her county to partially fund a detective “whose primary role is community outreach,” and that it’s her understanding the trust will allow it.

But a private attorney representing the Clearfield County district attorney in opioid litigation matters said they never received true clarity from the trust after asking if spending the funds on a detective would be OK — and the district attorney’s office didn’t use settlement money on that position.

In Clearfield County, the commissioners’ report justified using a portion of their funds on a body scanner at the jail by saying it could prevent overdose deaths and other harms. District Attorney Ryan Sayers reported spending $50,000 of his office’s funds on medication-assisted treatment for people incarcerated at the jail. Sayers told Spotlight PA he didn’t think Exhibit E would allow his office to spend money to prosecute or defend cases.

Dauphin County District Attorney Fran Chardo is using opioid settlement funds to partially pay for a prosecutor who coordinates court programs that serve as an alternative to incarceration. Chardo described the person serving in the role as a “former career public defender.”

Over in Lancaster County, commissioners in August approved using $193,000 in opioid settlement funds for two positions: a detective on the drug task force and a community prosecutor to oversee treatment court programs. A spokesperson for the district attorney's office told Spotlight PA the office intends to seek reimbursement for a portion of the salary for both positions, which the spokesperson said were preexisting.

John T. Adams, district attorney of Berks County, has used his office’s money to support housing for people in recovery, as well as an organization that does drug testing of people under court supervision, financial documents obtained by Spotlight PA show. Adams told Spotlight PA he’s prioritizing treatment.

His office isn’t using its settlement money to support public defense — and doesn’t have any plans to.

“That has never been brought up,” he told Spotlight PA.

Kate Giammarise of WESA contributed to this report.

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