The state of Washington is self insured for individual payouts of $5 million or less. Insurance companies pay the rest but this arrangement is in danger in light of skyrocketing claims and the Washington Attorney Generals (AG) office's failure to file a notice of appeal in a $17 million sexual abuse case against the Department of Social and Health Services. From July 1, 2000, through February 28, 2001, the state of Washington paid out $68 million for lawsuits against the state. This does not include verdicts that are under appeal; it applies only to money actually paid to victims of state neglect. During the 1990's the highest amount of payouts in a given year was $26.3 million. For most years in that decade the state of Washington paid less than $20 million a year to settle lawsuits and pay jury verdicts. For fiscal years 2001-03 governor Gary Locke is asking the legislature to budget $113 million to pay verdicts and settlements against the state. Betty Reed, the state's Risk Management Administrator, said that recent verdicts and settlements against the state should not be viewed as a sign that the state is willing to pay money to end high risk lawsuits. Arguably this is the mindset that led to the state's current problems. Reed said that half the tort claims filed against the state are denied without any payment (she did not say how many of these resulted in lawsuits which the state then lost. Presumably all the parole suits the state has lost fall into this category); 40% result in a nominal cash payment and 10% go to trial with the state winning three out of our cases. "The state still presents a vigorous defense against all of their lawsuits," Reed said.
Until recently, the DOC settled its parole liability for relatively small sums by low balling the plaintiffs. The dynamic appears to have changed when high caliber personal injury lawyers like Jack Connelly and Keith Coluccio got involved. Highly skilled, competent and with ample resources from their law firms, these lawyers could, and did, take on the state with its unlimited resources, and get adequate compensation for their clients' injuries. The role of these lawyers has been instrumental in highlighting the failings of Washington's current parole system. Before September 2000, victim payouts of a few hundred thousand or a few tens of thousands of dollars there were simply the DOC's cost of doing business in a slipshod and incompetent manner. Since Washington law does not allow for the assessment of punitive damages it is relatively difficult for Washington juries to send a message. Multi million dollar Verdicts have raised the prospect of making the DOC's parole business to expensive to run if it can't be done competently and prudently.
According to Kathleen Mix, chief deputy attorney general, the Washington AG's office has 22 current lawsuits pending against it involving parole liability and an additional seven claims have been filed with the state in which no lawsuit has yet been filed. Mix said the AG's office was working with the DOC "to develop some strategies to address their liability problems." The AG's office has added six lawyers to its 40-lawyer tort division in 2000 and plans to add 5 or 6 more this year. "You've got to have experienced staff handling high exposure cases," Mix told the National Law Journal. The importance of this became obvious when the AG's office defended the aforementioned DSHS sex abuse suit, got hit with a $17 million verdict, then the largest in state history, and the AG's lawyers on the case were to incompetent to file a notice of appeal within the 30 days allowed by state law.
So far the state's biggest, and most immediate, solution has been to seek statutory immunity from parole supervision suits. The state senate approved legislation that would make parole officers immune from suit even if their negligence and incompetence results in death or injury. Sue Evans, spokeswoman for the Washington State Trial Lawyers Association, said the legislature should demand improvements from the DOC, not cut off victim's court access. "It's a totally backward strategy. If the state is not motivated by these verdicts and the deaths of people, when are we going to be motivated to fix the problems?" Evans said.
Several state senators from both parties voted against, and denounced the legislation. Republican senator Pam Roach noted "This bill is about protecting the government from its citizens." Ultimately the bill died in the state house but will surely be back next year.
The Tacoma News Tribune (TNT) ran an excellent five part series examining Washington's parole system. [The series is on the Internet at: www.tribnet.com/projects/parole.] The TNT noted that the recently enacted Offender Accountability Act (OAA), despite its "tough on criminals" veneer, actually does away with mandatory, specific standards leaving most parolees with no in person supervision and leaving it up to each parole officer to decide what to do with each parolee. A system ripe for abuse but, the lack of specific performance standards is expected to make it harder for plaintiff's attorneys to win parole liability suits.
Some legislators, including longtime DOC flunky Ida Ballasiotes, claimed to be absolutely socked that in the wake of the OAA the DOC would actually decrease its supervision of parolees. If true, this indicates legislators give no thought to the real world effect of the laws they pass.
In late March 2001, the DOC announced it had hired former state Supreme Court justice Phil Talmadge to review the DOC's parole practices in order to reduce its liability. For his weeklong review, the DOC will pay the rightwing Talmadge $10,000. In an interview with the TNT Talmadge shared his brilliant insight that the DOC may have taken cases to trial that it should have settled. He also faulted the DOC for having specific standards. "A lot of people wrote rules that were very strict and probably couldn't be enforced in the real world with the budgets that they have. If the agency doesn't do them, juries react to that. There's no mystery in this."
While on the bench, Talmadge authored opinions saying that the legislature needed to limit government liability for parolees under its supervision or the programs would become too risky to maintain. Risky in a financial sense, the loss of human life isn't part of the equation. During his 16 years in the state senate, Talmadge helped enact legislation that limited the state's liability for patients released from mental health facilities.
Senator Pam Roach called Talmadge's review "a $10,000 cover for the administration-current and past. These are bureaucratic blunders that cost the people of this state millions of dollars."
Poor management by DOC officials is frequently cited as one reason for this dismal state of affairs. Lawyer Kevin Coluccio noted that parole officers don't supervise parolees in a vacuum. "Somebody's got to be looking over (a parole officer's) shoulder because why else would you have supervisors?" Coluccio said. The DOC's own studies conclude that its parole officers rarely, if ever, meet DOC supervision standards. Todd Jermstad, a Texas based expert on parole liability and supervision said "I can tell you in the state of Texas, our parole (system) is no bed of roses." But, even by Texas standards, Jermstad said, "Washington is kind of like in a league of their own" when it comes to poor supervision.
Parole officers claim they are overworked. Seattle lawyer Mark Leemon, who won the Taggart case giving crime victims the right to sue for damages, said "Their statements to the legislature that they are underfunded for the job... are well taken. By the same token, I think there are situations where the job that was done was clearly inadequate, and they have a tendency to close ranks." To say nothing of finding scapegoats. Barbara Nelson, a DOC parole officer was fired after three parolees under her supervision carried out high profile murders that resulted in lawsuits against the state. Nelson filed suit claiming wrongful discharge and that she was being scapegoat for the DOC's management failures. The state later settled Nelson's lawsuit for $200,000, and reinstated her to her job, which she promptly resigned. [PLN,]
Strikingly absent from this entire debate is any mention, or concern, for public safety or perhaps even more radical than that, preventing these crimes from occurring in the first place. No one, least of all the prisoncrats and legislators responsible for this state of affairs, have drawn any connection between parolees who commit crimes while on parole and Washington's crowded, violent prison system which over the past decade has systematically eliminated most rehabilitation and educational programs. Many of these were programs that cost the state little or nothing to administer. Compared to the lawsuit payouts, any expense was truly minimal. Instead, the focus of legislators and prisoncrats is on avoiding state financial liability for its negligent failure to prevent foreseeable crimes. Mental health, sex offender and substance abuse treatment are nowhere mentioned as possible solutions even though mental illness, sexual deviancy and drug abuse are common themes running through most parole liability cases.
The state's current approach indicates that protecting the public is not only not a priority it's not even on the list. No one will even publicly argue that lowering recidivism rates among ex prisoners released on parole is in the public interest, promotes public safety and strengthens the social fabric of our society lest they be denounced as "soft on crime." Unfortunately, the public at large and the corporate media seem content with this state of affairs and rather than prevent crime, would just as soon ensure that the state treasury doesn't have to compensate crime victims. Those ubiquitous "crime victim advocates" who are normally at the side of prosecutors and "tough on crime" legislators are conspicuously absent from this debate. Perhaps due to the fact that they receive their funding from the same government that is trying to limit it's liability.
Sources: National Law Journal, Seattle Times, Washington Journal, and Tacoma News Tribune
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