State, Department of Corrections v. Cowles , 2006 Alas. LEXIS 194 ( 2006 )

MATTHEWS, Justice,

dissenting in part.

I agree with the opinion authored by Justice Fabe insofar as it overrules Division of Corrections v. Neakok¹ and holds that the discretionary function exception immunizes parole board release and revocation decisions. Similarly, I agree that discretionary immunity applies to parole officer decisions concerning conditions of parole and that Neakok must be overruled on this point as well. I also agree that a parole officer has no duty to seek out, without notice, possible parole violations, and I agree that parole officer decisions concerning parole revocation for minor violations of parole conditions are properly protected as discretionary. But I think the court should go further and consider whether Neakok correctly resolved the question of whether parole officers, and the State, generally should be subject to tort liability for negligent supervision of parolees.

In my view this question should be answered in the negative primarily because parole officers do not have sufficient control over parolees to be able to control their behavior. Further, imposing a general tort duty of supervision creates an incentive for parole officers to choose the most restrictive alternative available to them and may interfere with rehabilitative programs. I favor a rule that would subject parole officers to tort liability only when the officer has notice that his or her charge presents an imminent danger of harm to a particular person or class of persons. Such a rule would not be subject to the above deficiencies and would be consistent with our recent case law in analogous areas concerning torts involving the duty to control the actions of others. I discuss these points in the paragraphs that follow.

NEAKOK’S DUTY ANALYSIS SHOULD BE RE-EXAMINED.

The holding in Neakok rested principally on three of the factors we adopted in D.S.W. v. Fairbanks North Star Borough School District² to aid in deciding whether a duty of care for tort law purposes should exist. According to the Neakok court, the foreseeability of the harm caused by the State’s failure to use due care when supervising parolees, the closeness of the connection between that failure and the potential harm caused, and the insignificance of any burden imposed on the State and the community all weighed in favor of imposing a duty of due care on the State. I disagreed with the outcome then,³ and in my view new information shows that the Neakok court’s conclusion was unsound.

Are Criminal Acts a Foreseeable Risk of a Failure to Use Due Care in Parole Supervision?

Foreseeability is said to be the most important D.S.W. factor. Neakok’s conclusion that the State has a “substantial ability to control the parolee” is critical to its determination that the State can be held liable for the foreseeable harm caused by negligently supervised parolees.⁴ However, in practice, a parole officer has little or no meaningful control over the conduct of parolees. The facts here illustrate the point. Parole Officer Beckner is charged with incorrectly assigning McGrew to a “medium” instead of “maximum” supervision level. But even if McGrew had been subject to maximum supervision, she would have met with him in her office for a short time only twice monthly and would have three “field” visits per year.

Recidivism upon release from prison is, of course, foreseeable. According to a 2005 study published by the Urban Institute (“Study”) “fewer than half of parolees successfully complete their period of parole supervision without violating a condition of release or committing a new offense, and ... two-thirds of all prisoners are rearrested within three years of release.”⁵ But the foreseeability of recidivism in the abstract is not the central concern of a duty analysis. The right question is whether parole supervision at today’s levels reduces recidivism. The Study gives a generally negative answer to this question. It concludes that “the overall effect of supervision appears to be minimal.” ⁶ With respect to violent offenders— the category with which tort law is most concerned — the Study’s statistics show that the predicted probability of rearrest within two years after release is remarkably uniform regardless of supervision. The rate is fifty-five percent for those who are released unconditionally, fifty-six percent for mandatory parolees such as McGrew in this case, and fifty-five percent for discretionary parolees.⁷ Concerning offender types, the Study concludes that “only property offenders released to discretionary parole benefit from supervision. Violent offenders released to supervision are no less likely to be rearrested than their unsupervised counterparts.”⁸

The Study also underscores the point that parolee supervision as it is currently funded and conducted has little chance to control the conduct of parolees:

■ Parole supervision is, in fact, quite minimal in most cases. Most parole officers manage large caseloads ... and typically meet with individuals for about 15 minutes once or twice a month. Why would we expect such a small amount of contact to make a large amount of difference? Parolees don’t: according to one study of parolees, most report that their parole officer did not have a major positive or negative impact on their postpri-son behavior. Clearly parole supervision must be more than occasional if it is to have an appreciable effect.⁹

The Study notes that scholars have made a number of suggestions concerning changes in post-prison programs that might ultimately prove to be effective.¹⁰ But as to parole as it is currently conducted, the Study concludes that, “our reliance on parole serves little purpose apart from providing false comfort.” ¹¹

Reliance on the efficacy of parole is the central premise of Neakok’s duty analysis. The court determined that the State stands in a “special relationship”¹² to parolees “because of its substantial ability to control the parolee. Given this special relationship, it is not unreasonable to impose a duty of care on the state to protect the victims of parolees.” ¹³ Because the main premise of Neak-ok — the “substantial ability to control the parolee” — is invalid given parole supervision as currently designed and funded, Neakok’s conclusion that this ability leads to a “special relationship” giving rise to a tort duty is also invalid.

Other states have recognized that parole officers do not have sufficient control of parolees to justify imposing a tort duty. The Supreme Court of Kansas in Schmidt v. HTG, Inc. held that parole officers lack sufficient control over parolees to create a special relationship between the officer and the parolee under which a duty to control the conduct of the parolee in tort might arise: “A parole officer does not take charge or exercise control over a parolee so as to ... imposte] a duty upon the State to control the conduct of the parolee to prevent harm to other persons or property.”¹⁴ The high courts of Maryland, South Dakota, and Virginia have held likewise.¹⁵

Closeness of the Connection

Another D.S.W. factor mentioned by Neak-ok is “the closeness of connection between the defendant’s conduct and the plaintiffs injury.”¹⁶ Neakok simply assumed that a parole officer’s failure to supervise “can be viewed as closely connected to” an injury suffered at the hands of a parolee.¹⁷ Yet as the facts here illustrate, the relationship between a parole officer’s allegedly negligent supervision and a parolee’s criminal acts can be far from obvious. Today’s opinion suggests that Beckner’s acts of negligence in supervising McGrew included incorrectly calculating his risk score so that he was assigned a medium supervision level rather than a maximum supervision level.¹⁸ The more intensive level of supervision would have meant two monthly meetings rather than one and a field visit at least once every four months. These were errors that related to McGrow’s parole between his release from prison in November 1996 and July 17, 1998, when Beckner filed a violation report that resulted in the issuance of an arrest warrant. How close was the connection between these alleged acts of negligence and the murder that McGrew committed on July 24, 1999? Given that at the time of the murder McGrew had been arrested and released by a discretionary act of a parole board member, and his revocation hearing was pending, one can characterize the closeness of the connection between these acts and the murder as either extremely remote or non-existent.¹⁹

I also observe, albeit repetitively because the D.S.W. factors overlap, that the idea that there is a close connection between supervision of a parolee and preventing a parolee’s criminal activities is also belied by the statistics contained in the Urban Institute Study referenced above. These statistics indicate that recidivism is not reduced by parole supervision for parolees convicted of violent crimes. The Study tells us that violent offenders who are released and not supervised do not re-offend at a higher rate than violent offenders who are released and supervised. In other words, parole as it is currently practiced and funded has a minimal effect on public safety. Supervision, whether negligent or not, therefore has little bearing on whether an offender will commit new crimes. Thus, again, the idea that the relationship between the supervision of a parolee and a parolee’s crimes is close enough to justify tort liability is, in my opinion, untenable.

Burdens and Consequences

Neakok dismissed the notion that its holding imposed significant burdens on the State and community by focusing primarily on the financial impact of tort liability. Potential financial impact is an important factor given the recidivism rate of parolees and the frequency of parole violations. But a potentially more important burden is the effect on the parole system.

In State v. Sandsness we adopted the Vermont Supreme Court’s reasoning in Sorge v. State that the State owes no duty to control juvenile offenders that it releases from custody.²⁰ We accepted the Sorge court’s reasoning that because the focus of juvenile jurisdiction is rehabilitation, the State could not be liable to third persons harmed by juveniles negligently released from State rehabilitative programs. The imposition of a duty to control under tort law in those circumstances would cause the State to err on the side of detention and thus interfere with the rehabilitative process.²¹ Rehabilitation is also an important function of parole. Therefore, while the facts here are distinguishable from those in Sandsness and Sorge, the effect on parole-related is similar.

Today’s opinion suggests that the rehabilitative function of parole is preserved because discretionary immunity shields the State from liability for negligently releasing parolees from detention.²² But the prospect of being sued for negligent supervision once a parolee is released may cause the State to err on the side of continued detention. In addition, once a parolee is released, either as a matter of discretion, or as a matter of right, as in this case, the prospect of negligent supervision liability will have a tendency to cause the State to err on the side of renewed confinement when violations are suspected or discovered.

The Sorge court reviewed the authorities that had rejected liability because of the potential interference that it could have on post-prison release programs at some length:

Furthermore, this application of the § 319 exception to the rule that there is no common-law duty to control the conduct of another to protect a third person has been rejected by jurisdictions that have recognized that most juvenile and adult programs dealing with persons committed to the custody of the State are intended to rehabilitate conduct rather than control it. See Davenport v. Community Corrections of Pikes Peak Region, Inc., 962 P.2d 963, 968 (Colo.1998) (“Community corrections ... programs designed to ... reintegrate incarcerated offenders into society.”); Finnegan v. State, 138 Vt. 603, 420 A.2d 104 (1980); see also Ruf v. Honolulu Police Dep’t, 89 Hawai'i 315, 972 P.2d 1081, 1093 (1999) (in declining to apply § 319 to alleged negligent release of prisoner by police, court notes that risk of liability could pressure police to “err more often on the side of excessive detention”). Thus, for example, parents of a restaurant employee who was raped and killed by a coworker, who had been conditionally released from prison, asserted that § 319 of the Restatement established a duty of care on the part of the Kansas Department of Corrections. The Supreme Court of Kansas found that neither the parole officer nor the department of corrections had charge of the individual who committed the assault to the extent necessary to fall within § 319. See Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, 687 (1998). In rejecting the imposition of liability upon the State under the rationale of § 319, the court observed:

[An] overbroad construction ... escalates the State’s responsibility to that of the virtual guarantor of the safety of each and every one of its citizens from illegal and unlawful actions of every parolee or person released from custody under any type or kind of supervision.

Id.; see also Thompson v. County of Alameda, 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728, 735 (1980) (“parole and probation release ... comprise an integral and continuing part in our correctional system authorized by the Legislature, serving the public by rehabilitating substantial numbers of offenders and returning them to a productive position in society.”); Whitcombe v. County of Yolo, 73 Cal.App.3d 698, 141 Cal.Rptr. 189, 199 (1977) (“Were we to find a cause of action [here] we would in effect be encouraging the detention of prisoners in disregard of their rights and society’s needs.”); Rivers, 133 Vt. at 14, 328 A.2d at 400 (argument that State should be liable for harm caused by person on rehabilitative release for failing to control such persons “runs dangerously parallel to the arguments for preventative detention”).²³

Based on this review, I do not think that there is a case to be made that tort liability should be imposed for negligent supervision of parolees. To summarize, parole supervision of violent offenders has been shown to be ineffective in preventing them from committing new crimes. Since parole as presently conducted is ineffective at controlling the conduct of parolees, no special relationship giving rise to a tort duty to control them should arise. Further, it cannot be said that there is typically a close connection between acts of negligent supervision and the criminal conduct of parolees.

But two things are clear. First, acts of recidivism are frequent, and the imposition of tort liability for parole supervision shortcomings will have a tendency to skew decision-making concerning parolees in favor of the most restrictive choice available. Second, the premise on which Neakok based its conclusion that parole officers have a tort duty to control parolees — that parole supervision is effective in reducing recidivism in violent offenders — was based on an unexamined assumption that the best information available today shows to be incorrect. Thus the conditions for overruling a prior decision of this court are satisfied: “A prior decision should be overruled only if the court is clearly convinced that the precedent is erroneous or no longer sound because of changed conditions, and that more good than harm would result from overturning the case.”²⁴

LIABILITY WHERE THERE IS NOTICE OF IMMINENT PERIL.

I do not suggest that parole officers should, in all circumstances, be immune from tort liability. If a parole officer has knowledge of a specific threat of imminent harm to a person or class of persons, the parole officer should have a tort duty to take appropriate action. Such a rule would bring the tort duties of parole officers in line with parents and police officers. A parent, for example, owes a duty to restrain a child only when there is reason for the parent to know that the child poses an imminent and foreseeable risk of harm.²⁵ Similarly, police officers owe “a duty of reasonable care ... to respond to threats of imminent, life-threatening, assaul-tive conduct when given sufficient specific information to respond.”²⁶

For these reasons, I respectfully dissent in part from Justice Fabe’s opinion.

1 . 721 P.2d 1121 (Alaska 1986).

2 . 628 P.2d 554 (Alaska 1981).

3 . Neakok, 721 P.2d at 1137 (Matthews, J., dissenting).

4 . Id. at 1126.

5 . Amy L. Solomon et al., Does Parole Work? Urban Institute, 1 (2005), available at http://www. urban.org/UploadedPDF/311156 — Does— Parole — Work.pdf. The purpose of this study was "to assess, at an aggregate level, whether parole 'works’ at reducing recidivism among those who are supervised after release from state prison." Id. at 1.

6 .Id. at 15.

7 . Id. at 10, table 3.

8 . Id. at 2. I set out here in full the Research Highlights of the Study:

.■ Overall, parole supervision has little effect on rearrest rates of released prisoners. Mandatory parolees, who account for the largest share of released prisoners, fare no better on supervision than similar prisoners released without supervision. In fact, in some cases they fare worse. While discretionary parolees are less likely to be rearrested, this difference narrows (to 4 percentage points) after taking into account personal characteristics and criminal histories.

■ Certain prisoners benefit more from supervision — especially discretionary release to supervision — than others. For example, females, individuals with few prior arrests, public order offenders, and technical violators are less likely to be rearrested if supervised after prison. Persons with a combination of these characteristics, representing relatively low-level offenders, exhibit even lower rearrest rates if supervised. Conversely, supervision does not improve rearrest outcomes for some of the higher rate, more serious offenders.

■ Of the largest groups of released prisoners — male drug, property, and violent offenders — only property offenders released to discretionary parole benefit from supervision. Violent offenders released to supervision are no less likely to be rearrested than their unsupervised counterparts. For male drug offenders, mandatory release to supervision predicts higher rearrest rates than for unconditional releasees or discretionary parolees.

Id. at 1-2 (emphasis added).

9 . Id. at 16 (footnotes omitted). The description in this paragraph of the typical level of parole supervision squares with Alaska parole supervision as currently established. See infra page 370-71 (Maximum supervision entails two monthly meetings and a field visit once every four months.).

10 . Id. at 16-17

11 . Id. at 17. Chief Justice Bryner criticizes my reliance on the Study. He suggests that the Study is merely descriptive of the effectiveness of parole in the locations studied and does not show that parole could not be effective in better run systems. Further, he claims that the data relied upon by the Study is too limited to be relied on in Alaska since it is based on statistics from only fifteen states, not including Alaska. He also argues that the limitations inherent in the Study mean that generalizations about the ineffectiveness of parole supervision cannot be drawn. With respect to this point he quotes a caution set out in the Study relating to certain types of supervision. Maj. Op. at 366 note 3 (Concurring Opinion of Chief Justice Bryner).

My response to these points follows. The Study clearly concludes that supervised parole as it is traditionally practiced in the United States with respect to violent offenders is ineffective at reducing recidivism rates. The recidivism rates for violent offenders who are subject to supervision are, at best, only equal to the rates for violent offenders who are not subject to supervised parole. They are not lower as might be expected. The Study, of course, does not attempt to isolate any role that negligent supervision might have on outcomes. But unless we are to assume that all, or nearly all, of the supervision reflected in the Study was negligent, the Study does indicate that non-negligent supervision does not produce better results than no supervision at all. Otherwise, a reduction in recidivism rates would be reflected.

It is of course possible that if parole supervision programs were designed differently, or if substantially more money were committed to parole supervision, outcomes might improve. But in deciding duty questions for tort law purposes we must look at programs as they exist and ask whether it makes sense to impose tort law liability for program failures. For example, in D.S.W. the question was whether there should be a tort duty imposed on public schools to recognize and treat learning disabilities. We held that there should not be such a duty, citing, among other reasons, the numerous “social and financial problems” with which the public schools are beset. 628 P.2d at 556. If there is one thing clear in this case, it is that decisions as to the design and funding level of parole supervision are not reviewable in tort. Thus, the fact that different programs might be effective cannot be the basis for imposing liability for the shortcomings of the current program.

Chief Justice Biyner's criticism that the database used by the Study — results from fifteen states' — is too limited, is also unwarranted. Maj. Op. at 366 note 3. The scholars who conducted the Study thought the data was sufficient to draw tire conclusions that they reached, and the focus of the Study was on "national-level trends.” Study at 14.

Chief Justice Bryner’s point that the Study does not support the generalizations that I have relied on in this dissent also lacks validity. The generalizations that I rely on are those that the authors of the Study have made. Specifically, the Study states: "Mandatory parolees, who account for the largest share of released prisoners, fare no better on supervision than similar prisoners released without supervision." Study at 1. "Violent offenders released to supervision are no less likely to be rearrested than their unsupervised counterparts.” Id. at 2. With respect to the language that Chief Justice Bryner quotes, the scholarly caution reflected there does not, in the view of the authors, undermine their overall conclusion. Indeed, the sentence immediately following the language quoted by the Chief Justice states: "At the same time, given our country’s heavy reliance on parole to manage those released from prison, it is discouraging — although not wholly unexpected — to find that the overall effect of supervision appears to be minimal.” Id. at 15.

12 . That is, a relationship giving rise to a duty to control the conduct of a third person. See Restatement (Second) of Torts § 315(a) (1965).

13 . Neakok, 721 P.2d at 1126-27 (emphasis added).

14 . 265 Kan. 372, 961 P.2d 677, 679 (1998).

15 . Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297, 1304 (1985); Small v. McKennan Hosp., 403 N.W.2d 410, 414 (S.D.1987); Fox v. Custis, 236 Va. 69, 372 S.E.2d 373, 376 (1988).

16 . 721 P.2dat 1125.

17 . Id. at 1129.

18 . Maj. Op. at 360, 361-62 (Opinion of Justice Fabe).

19 . Further, as the facts of the companion to this case, C.J. v. State, 151 P.3d 373, 2006 WL 3692501, Op. No. 6081 (Alaska, December 15, 2006), indicate, issuing a parole violation report and an arrest warrant may not suffice to prevent a parolee from committing new crimes.

20 . State v. Sandsness, 72 P.3d 299, 302-03 (Alaska 2003) (citing Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000)).

21 . ' Id. at 302.

22 . Maj. Op. at 364 (Opinion of Justice Fabe).

23 . 762 A.2d at 820-21.

24 . Kinegak v. State, Dep't of Corrections, 129 P.3d 887, 889-90 (Alaska 2006).

25 . Dinsmore-Poff v. Alvord, 972 P.2d 978, 986 (Alaska 1999) (holding that a parent’s tort duty to restrain child exists only where "the parent ha[s] reason to know with some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm”).

26 . Dore v. City of Fairbanks, 31 P.3d 788, 795 (Alaska 2001) (discussing the meaning of City of Kotzebue v. McLean, 702 P.2d 1309 (Alaska 1985)).