Conflict between State Attorney’s Office and Public Defender’s Office limiting referrals to jail diversion program, Commissioner Moran tells colleagues

Criminal Justice Commission members discuss need for in-depth discussion between Public Defender Eger and State Attorney Brodsky

Sarasota County Commissioner Michael Moran told his colleagues on Jan. 31 that it appears that a dispute between the State Attorney’s Office and the Public Defender’s Office for the 12th Judicial Circuit is the reason that too few offenders are being referred to a jail diversion program that the commissioners approved in 2019.

During his report to his fellow commissioners as part of their Jan. 31 regular meeting, Moran talked about having attended the county’s Criminal Justice Commission (CJC) meeting the previous day. He serves on the CJC as a representative of the County Commission, he noted.

Moran reminded his colleagues that the pilot Community Offender Rehabilitative Treatment Program (CORT) facility at First Step of Sarasota was designed to house 40 persons. Yet, he said, in recent weeks, as few as 15 individuals have been receiving treatment there.

“This has a burn rate of significant tax dollars every week,” Moran stressed, with the amount running as much as $70,000.

A couple of times last year, Moran voiced concerns about the amount of money the county is paying for the program, with too few people being referred to it.

The goal of CORT is to provide appropriate help to people with behavioral health and substance abuse problems that led to their arrests, instead of keeping them in jail.

Referring to the State Attorney’s Office and Public Defender’s Office, Moran said on Jan. 31, “They have been having serious deep debate [over referring offenders to the program]. I saw it yesterday. … They are not clear at all about how this is supposed to work.”

Moran added that he told State Attorney Ed Brodsky and Terry Lynn Drake, who was representing Public Defender Larry Eger, “that if they don’t figure this out very quickly,” he would ask his commission colleagues to halt the program.

During the CJC meeting, Chief Judge Charles Roberts of the 12th Judicial Circuit Court, who chairs the CJC, told the attendees that he would organize discussions between Brodsky and Eger to try to resolve the problems.

Prior to his comments last week, Moran most recently had raised the topic during the commission’s regular meeting on Nov. 15, 2022. At that time, he told his colleagues, “We have a burn rate on this of about $217,000 a month.”

An October 2021 funding request that the commissioners approved said the total amount of money sought for the program for the 2022 fiscal year was $2,762,502, all of which would go to First Step. The 2022 fiscal year ended on Sept. 30, 2022.

During the November 2022 commission meeting, Chuck Henry, director of the county’s Health and Human Services Department, reminded the board members that the Criminal Justice Commission had recommended the CORT Program to the commissioners. The CJC’s charge, a county webpage explains, is to ensure that the criminal justice process is “is efficient, cost-effective and timely,” with the board’s members working to determine the best ways to manage assets and reduce crime.

The County Commission agreed to establish the three-year, 40-bed CORT pilot program, Henry noted during the Nov. 15, 2022 commission discussion. The Health and Human Services staff monitors the program, Henry added.

His perception when the program was proposed to the commissioners, Moran pointed out during that 2022 meeting, was that “there’s just a huge need” for CORT. That led him to believe, he added, that “there would be a huge waiting list for this.”

Henry did note that day that, through the first eight months of the program’s existence, it had served 95 persons; staff had projected that 120 individuals a year could be helped. “They’re moving along well,” Henry said of those involved in the process.

Nonetheless, Henry made it clear that the State Attorney’s Office and the Public Defender’s Office both had to sign off on the referral of an individual to the program.

An issue of constitutional rights

Moran indicated to his fellow CJC members on Jan. 30 that he had asked that the discussion of the CORT program be placed on their agenda for that meeting.

Based on how the program was described to the commissioners, he said, “I thought there would literally be people waiting in line” to get admitted to it.

“How in the world do you not get 40 people over to this facility?” he asked. “As we sit today,” Moran stressed, “years later, we have 15 in there.”

Public records that The Sarasota News Leader requested show that, for the week of Jan. 11, 24 offenders were receiving treatment through the program, with another 20 undergoing the approval process.

As of the week of Jan. 18, 17 persons were participating in the program, with 20 still the figure for those in the approval process.

By the week of Jan. 25, the number of offenders in the program was down to 15, with 23 in the approval process.

Then, by the week beginning Feb. 1, 19 offenders were receiving care while 14 were in the approval process.

A chart included with the public records materials provided monthly statistics from March 2022 through January of this year. That chart showed that the average number of offenders in the program for the months of May and June 2022 was 40; in April 2022, it was 39.

The lowest monthly average was 20, recorded in January. In December 2022, the average was 25.

During the Jan. 30 CJC discussion, Shawny Robey, executive director of First Step, told the attendees, “Since CORT has been up and running, we have screened 324 defendants.” About 152 of them were denied entry into the program because of a violent criminal history or other issues that made them ineligible, she added.

Over the past six months, Robey continued, 47 people had successfully completed the program.

The average length of stay for someone referred to CORT had been 120 days, she continued, and 75% of those who had completed the program had secured part-time employment.

Robey also noted that 90% of the individuals referred to CORT had expressed satisfaction with it.

“There is a great demand [for it],” she pointed out. However, she said, “There seem to be some snags in the referral process.”

Terry Lynn Drake of the Public Defender’s Office then told the other CJC meeting attendees that much demand for the program does exist. However, she continued, as defense attorneys, she and other members of the Public Defender’s Office have had to make a choice between defending their clients’ constitutional rights and referring them to the program.

At the outset of CORT’s operations, she said, people who completed the program were not necessarily given harsh sentences, and they were released back into the community.

“Now,” Drake pointed out, “everyone has to enter a plea first,” before the State Attorney’s Office will refer the person to CORT. “As defense attorneys,” she emphasized, “we have to make sure [clients] understand the ramifications of everything they do.”

“Ethically, by the rules,” Drake stressed, “if we tell people to [enter pleas to get into the program], we can be disbarred.”
“We have a million people who need this program,” Drake added. Yet, she pointed out, the public defense attorneys have been told that their clients have to accept responsibility first for the charges they are facing, “or they sit in a jail. … That’s the position that we’ve been in.”

“Do you think we should stop this program until you’re ready for ‘Primetime’?” Moran asked.

Drake indicated that the Public Defender’s Office needs the commissioners to make it clear to State Attorney Brodsky that they do not care if a person is referred to CORT before entering a plea in a case.

“No offense,” Moran responded, but “I’m an insurance agent. … You guys are to vet that [situation] before it gets to us.”

Drake told him that “it was presented to us that the [commissioners] requested the change [to pleas before admission to the program]. So I believe it’s appropriate to ask if that is true.”

“Who told you that?” Moran asked.

Drake declined to respond in public. “I had the same conversation with [County Administrator Jonathan Lewis],” she added, during which time she told him the source of the information.

“I work in the Sunshine,” Moran emphasized, referring to the state’s open meeting laws. “Don’t give [the name] to me if you don’t want it public.”

“I’m lost in between what’s taking place there,” in regard to a philosophical difference of opinion, Moran added. “We need to get to the problem of whatever you’re talking about,” he told Drake.

At one point, Robey of First Step noted that, over the past week or two, “There has been some level of ease in the process.” The nonprofit was expecting 22 new offenders that week, she added.

A threat to halt the program

Moran told the CJC attendees that if he did not get a clear understanding of what was going on in regard to the referral process, he would recommend to his fellow commissioners that they halt the program. “We can allocate the funds to other things.”

Sarasota attorney Derek Byrd, who holds the CJC seat for a representative of a community group that works with offenders or victims, said he believes discussions need to take place between the State Attorney’s Office and the Public Defender’s Office.

“Don’t pull the plug just yet,” Byrd told Moran. The jail is averaging more than 1,000 people a week, Byrd pointed out.

The operational capacity ideally is 836, State Attorney Brodsky said.

“I don’t think anybody wants to [build a new jail],” Byrd pointed out.

Nonetheless, he did concur with Moran that having only 15 offenders in the program at one time “is ridiculous.”

Although he never had had a client referred to CORT, Byrd continued, “That’s my fault … We all need to be more aggressive in the system.”

The recidivism rate for those completing the program, he added, seems to be far lower than for comparable individuals released from jail.

Judge Roberts, chair of the CJC, pointed out that he was the judge who probably had signed off on the largest number of referrals to CORT. “I don’t think there’s any question that [CORT] works,” Roberts said. “What may not be working just now is the referral process to fill the beds.”

Roberts further pointed out that, after he had seen lower numbers of offenders in the program in recent weeks, he had talked with both Public Defender Eger and State Attorney Brodsky, to try to find out “what we can do to increase [the referrals].”

Then Roberts cited the need for a discussion “in great length” about the plea issue. “I see the arguments on both sides.”

Roberts called CORT “one of the best programs I have seen in my now 41 years in the system, and I certainly think every avenue needs to be exhausted before we pull the plug on that program.”

“Thank you, judge,” Moran responded. It would be easy for the commissioners to stop the program, Moran continued, “but the hard conversation’s what we’re doing right now. … I’m just sending some humongous smoke signals to the group.”

Without a realistic timeline for resolving the problems, Moran said, the commission would need to halt the program. “Hopefully, you guys can talk … and come up with a timeline.”

“What Miss Drake is talking about is a philosophical discussion or debate about who would be eligible for [CORT],” Brodsky said, and how best to use the money the commissioners allocated for treatment of offenders with mental health and substance abuse issues. “This debate will probably continue.”

Brodsky added, “I do think that we can fill [the program]. … I think that we may have to be a little more creative in who we allow into the program. … We certainly welcome future conversations about the program.”

At the conclusion of the discussion, the CJC members heard public remarks from Sarasota attorney Varinia Van Ness, who told them she had had three clients in the program. Van Ness said she wanted to encourage the stakeholders in CORT to discuss how the admission process should work.

“I would ask that you not cut [CORT] off just yet,” she pleaded.

Then Judge Roberts announced that he wanted to assure Brodsky and Eger that he “would be very eager to set up that discussion” about filling the beds in the program. “I’m very optimistic we can do that.”