Hon. Robert Longstreth on Dugard v. United States: The U.S. Owes No Duty to the General Public to Control a Dangerous Parolee

Hon. Robert Longstreth on Dugard v. United States: The U.S. Owes No Duty to the General Public to Control a Dangerous Parolee

Jaycee Dugard was abducted as a child, then imprisoned and sexually abused for 18 years by a convicted rapist, who fathered her two daughters while she was still a minor. Following her rescue, her horrific experience received international attention, and she wrote a well-received, best-selling account of her ordeal. She received a $20 million payment from the State of California; then filed suit against the United States, asserting that federal probation officers and prison officials had negligently allowed her abductor to remain free at the time she was kidnapped and enslaved. Over two years later, after extensive discovery, the United States District Court for the Northern District of California [enhanced version available to lexis.com subscribers] dismissed her suit, holding that since Ms. Dugard was not a foreseeable victim of the probation officers' conduct, her claim against the United States failed under California law, and therefore under the Federal Tort Claims Act. Ms. Dugard has appealed this dismissal to the United States Court of Appeals for the Ninth Circuit, which is likely to affirm the judgment.

Jaycee Dugard Is Abducted and Enslaved by Convicted Rapist Phillip Garrido

In 1976, Phillip Garrido kidnapped a woman in California and transported her across state lines to Reno, Nevada, where he repeatedly raped her. For this crime, he was convicted in federal court in 1977 of kidnapping and forcible rape and sentenced to 50 years in federal prison. He was also convicted on the same facts in Nevada state court of forcible rape, and was sentenced to five years to life.

In January 1988, after serving just over 10 years of his federal sentence, Garrido was paroled from federal prison, required to comply with general and special conditions of release, and turned over to Nevada authorities pursuant to a detainer to serve the remainder of his state sentence. Later that year, in August 1988, Garrido was paroled from Nevada state prison and returned to federal authorities for supervision of the conditions of his federal parole.

On June 10, 1991, while on her way to school, eleven-year-old Jaycee Dugard was kidnapped by Garrido near her home in South Lake Tahoe, California. Garrido took Ms. Dugard to his home in Antioch, California, more than 150 miles away, handcuffed her, hid her in makeshift structures in his backyard, and repeatedly raped her. In 1994 and 1997, Ms. Dugard gave birth to daughters fathered by Garrido. In August 2009, Ms. Dugard was rescued and reunited with her family.

Federal and State Parole Authorities Inadequately Supervise Garrido After His Release

The conditions of Garrido's parole required that he comply with all laws, not drink alcohol to excess, not use marijuana or any narcotic, submit to drug testing , attend drug and mental health counseling, and be placed in a community treatment center. To satisfy the last condition, he was placed in a halfway house in Oakland, California from August through December 1988. Garrido's parole was supervised by the United States Probation Office for the Northern District of California until January 1999, when the California Department of Corrections and Rehabilitation (CDCR) assumed parole supervision on Nevada's behalf under the terms of an interstate parole compact. During this period, a very small percentage of federal offenders subject to supervision were sex offenders, and formal supervision policies aimed at such offenders were not adopted by the federal probation system until 2003.

The classification and supervision plan prepared for Garrido following his release fixed his supervision level as high and directed that he be contacted monthly by probation officers. Although he was seen 17 times in the 18 months following his release from the halfway house, there were several months when no contact occurred. During this period, Garrido tested positive for or admitted using drugs on at least 10 occasions and his blood alcohol level at one time was 0.45 percent— parole violations that were never reported to the United States Parole Commission. The probation officers also failed to notify the Parole Commission that Garrido was diluting his urine samples by drinking large amounts of water before the tests, and that he failed on occasion to appear for the tests or for mandatory drug counseling. In late 1990 and early 1992, Garrido failed for two straight months to submit a monthly report to his probation officers, who did not report this violation to the Commission either. In 1993, the officers did report to the Commission that Garrido had failed to report to his probation officer three times, failed to report for a drug test, and failed to report for drug counseling. As a result, he was briefly incarcerated pending a formal parole revocation hearing. Garrido admitted the violations at the hearing and was reinstated to parole and confined to his home, with electronic monitoring, for 4 months.

The United States District Court for the Northern District of California ordered a review of the federal probation office's supervision of Garrido, which found that the supervision was "clearly substandard" and "a significant reflection of the deficient practices" in the office. The report concluded, however, that there was no evidence that a search of Garrido's premises by the probation officers would have found Ms. Dugard and her children.

The Hon. Robert C. Longstreth is a judge on the Superior Court of California, County of San Diego. Prior to joining the bench, Judge Longstreth practiced with DLA Piper US LLP in San Diego, California, where he concentrated his work in environmental law and insurance law. Prior to joining DLA Piper, Judge Longstreth served as Trial Attorney for the Department of Justice, Torts Branch. He is a co-author of the leading treatise on the Federal Tort Claims Act, Jayson & Longstreth, Handling Federal Tort Claims (LexisNexis Matthew Bender). He received his undergraduate degree from Haverford College and his law degree from Yale.

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