HARRISBURG — In a reversal, the board overseeing Pennsylvania’s opioid settlement money approved Bucks County’s decision to spend a share of its funds on a public defender — an action that could influence local spending choices across the state.
The move represents a victory — if only a modest one — for a range of groups: recovery and harm reduction organizations critical of law enforcement spending, local leaders who want more flexibility with settlement funds, and advocates who argue public defenders play a vital role in helping people dealing with addiction.
“Public defender offices are chronically underfunded compared to law enforcement agencies, compared to probation departments, compared to district attorneys’ offices,” Niels Eriksen Jr., chief public defender in Bucks County, said in November. “We are barely keeping our head above water.”
Nearly two years ago, Spotlight PA first reported on the public defender issue and disparities in how Pennsylvania officials were spending opioid settlement money. A group of district attorneys’ offices — ones that had their own litigation against drug companies — are entitled to millions of dollars in settlement funds based on Pennsylvania’s distribution system.
But the Pennsylvania Opioid Misuse and Addiction Abatement Trust, which distributes and oversees the funds, had discouraged spending settlement funds on public defenders.
“It’s a huge shame because there is so much of a need across Pennsylvania for more public defenders,” Sara Jacobson, executive director of the Public Defender Association of Pennsylvania, told Spotlight PA at the time.
Since then, a number of groups have objected to the disparity.
The dispute over public defenders highlights the ongoing conflict over how best to respond to the opioid epidemic — and uncertainty about how best to use billions of dollars flowing to states and local governments.
While the trust’s approval of the Bucks County public defender position was welcome news to some and could set a precedent for other counties, it’s still potentially limited in scope.
Bucks County plans to have the position handle only opioid use disorder and substance use disorder clients, according to information shared at the trust’s public meeting in December and provided by Bucks County in response to questions from Spotlight PA.
Which defendants qualify “is based on a client’s self-reported status or a previously assessed diagnosis from a treatment provider,” James O’Malley, a Bucks County spokesperson, told Spotlight PA. “The determination is not based on charges brought against a client.”
And while funding for public defense still falls short of what some advocates say is needed, they hope more counties will prioritize public defense when they spend opioid settlement money.
The case for public defense
Pennsylvania expects to receive about $2 billion from settlements with various drug companies to settle claims about their role in the opioid epidemic. Most of the funds are ultimately going to counties and local governments in the state. Payments are scheduled to last until about 2038, according to records released by the trust.
Many people have big hopes for the money, but there have also been disagreements about what type of spending is appropriate and allowed, including disputes over a youth prevention program in Western Pennsylvania, efforts to support Philadelphia’s Kensington neighborhood, and jails across the state.
In order to receive settlement money, counties and other local governments had to agree to spend the funds in ways that align with a settlement document known as Exhibit E. It’s a nonexhaustive list of recommended and approved strategies for the funds, such as overdose reversal drugs, medications to treat addiction, and prevention programs.
Funding for public defenders in Pennsylvania was an early source of disagreement, after Elk County in north-central Pennsylvania asked about the issue. The response Elk County received — which was also posted on the trust website — was discouraging.
“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 a trust advisory committee said.
A range of organizations objected.
A national coalition of harm reduction, recovery, and other groups, citing Spotlight PA’s reporting on the issue, called out the disparity between public defenders and prosecutor offices in Pennsylvania as an example of problematic spending. The groups said “funding for law enforcement, jails and prisons already far outweigh funds for proven public health interventions like housing, care and treatment.”
The ACLU of Pennsylvania also cited the disparity in its lawsuit against the state, alleging Pennsylvania has failed to live up to its constitutional responsibility to ensure people who can’t afford an attorney have effective, free representation in criminal cases.
At the trust’s first public listening session, an attorney with the Public Defender Association of Pennsylvania urged trust officials to remove the guidance that discouraged spending settlement funds on public defenders.
The dispute that ultimately led to a change involved a decision in the Philadelphia suburbs. In August of last year, trust officials rejected Bucks County’s decision to spend about $200,000 in settlement funds on an assistant public defender, trust records show.
Bucks County officials appealed. Eriksen argued Exhibit E does not block counties from funding existing positions with settlement money, and that public defenders connecting people to treatment play an important role in combating the opioid epidemic. He warned that “unresolved legal issues drive a sense of hopelessness.”
Trust members in December reversed their earlier rejection.
Tom VanKirk, chair of the trust, said Bucks County’s measure “is aimed at putting people into diversionary programs, which should be the goal and keeping them out of the criminal justice system.”
He acknowledged the possibility of other counties spending their funds on public defenders. While he offered caution about doing so, he said the trust is “amenable to entertaining” funding for those positions.
At the same meeting, the trust also approved programs related to Delaware County’s public defender office. The trust also removed from its website the guidance that discouraged spending funds on public defenders. (More broadly, the trust has objected to some law enforcement spending and used new authority granted by an amended court order to reject some district attorney office programs.)
Ari Shapell, an attorney with the ACLU of Pennsylvania, was pleased with the public defender approvals. But he said public defender offices across the state need hundreds more attorneys to live up to constitutional requirements, along with hundreds more support staff.
“While these additional funding sources are very welcome,” he told Spotlight PA, “they are not going to be nearly enough to close the gap in terms of the actual need here.”
Officials with the Public Defender Association of Pennsylvania hope that other local officials across the state will use settlement funds for positions similar to Bucks County’s, and the organization plans to offer training to help public defender offices apply for settlement funds.
“We’re very optimistic,” Andrew Capone, an assistant director of training with the association, told Spotlight PA.
In response to questions from Spotlight PA, the trust declined to provide additional public guidance on what type of public defender spending would be allowed, such as for a county interested in partially funding a position based on the percentage of opioid use disorder and substance use disorder clients represented. VanKirk said the trust “will not engage in speculation regarding hypothetical programs or scenarios” and said beneficiaries can contact a trust advisory group.
In rural Elk County, officials listened to the trust’s 2023 guidance and did not spend settlement funds on a public defender, according to Commissioner Matthew Quesenberry.
Quesenberry first learned about the trust’s recent approval of Bucks County’s public defender from Spotlight PA. He was glad the trust was willing to reconsider the issue.
As of December, he was not sure if officials in his county would now try a similar approach and fund public defense with settlement money, but expected they would discuss it. One thing they have to consider, Quesenberry said, is that settlement funds will run out one day — which could create problems for programs or positions that relied on the funds.
“Eventually the music’s gonna stop and somebody’s not gonna have a chair,” he said.