Sohappy v. Board of Parole ( 2023 )

28 November 8, 2023 No. 576
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DOMINIQUE JERMAINE SOHAPPY,
Petitioner,
v.
BOARD OF PAROLE AND POST-PRISON
SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A174855
Submitted November 21, 2022.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Lagesen, Chief
Judge, and Jacquot, Judge.
AOYAGI, P. J.
Reversed and remanded.
Cite as 329 Or App 28 (2023) 29
30 Sohappy v. Board of Parole
AOYAGI, P. J.
Petitioner seeks judicial review of a 2020 order of
the Board of Parole and Post-Prison Supervision that set
petitioner’s sex offender notification level (SONL) at Level 2
(Moderate). Under ORS 163A.100, the board must “adopt by
rule a sex offender risk assessment methodology for use in
classifying sex offenders,” and application of that rule “must
result in placing the sex offender in one of” three notifica-
tion levels based on their risk of reoffending—with Level
3 offenders presenting the highest risk, Level 2 offenders
presenting a moderate risk, and Level 1 offenders present-
ing the lowest risk. In response to that directive, the board
adopted OAR 255-085-0020, and it applied the version of
that rule in effect on April 29, 2020, to petitioner. OAR 255-
085-0020 (Apr 29, 2020) provides that the board “shall use
the Static-99R actuarial instrument on the Board’s website
at http://www.oregon.gov/BOPPPS along with attending
rules and research found on http://www.static99.org/, to con-
duct a sex offender risk assessment” and place each regis-
trant into one of the three notification levels.
Petitioner contends that the board misinterpreted
OAR 255-085-0020(1) (Apr 29, 2020) when it used the Static-
99R actuarial instrument without the attending rules and
research on the Static-99R website to determine his risk
level, specifically the attending rules and research related
to sex-offense-free time in the community. Petitioner argues
that the board’s failure to account for his 12 years of sex-of-
fense-free time in the community resulted in SONL misclas-
sification. The board responds that it is discretionary under
the Static-99R methodology whether to consider sex-offense-
free time. We agree with petitioner that the board’s inter-
pretation is implausible, and that the only plausible inter-
pretation of the rule required the board to use the attending
rules and research on the Static-99R website regarding sex-
offense-free time in the community in setting petitioner’s
risk level. We therefore reverse and remand.
All references to OAR 255-085-0020 in this opinion
are to the version that went into effect on April 29, 2020,
which is the version that the board applied to petitioner. The
Cite as 329 Or App 28 (2023) 31
rule has since been amended twice, but those amendments
are not at issue in this review proceeding.1
I. FACTS
When petitioner was 18 years old, he engaged in sex-
ual misconduct toward fellow students at the Oregon School
for the Deaf, which led to his 2008 conviction for offenses
requiring him to register as a sex offender. Petitioner was
sentenced to 60 months’ probation, which he successfully
completed, and never served any prison time.
In April 2020, petitioner petitioned the board for
relief from registering as a sex offender. See ORS 163A.125(1)
(allowing people classified in Level 1 to request relief from
the sex offender registration requirement). Because peti-
tioner had never been classified under the current SONL
system, the board used the Static-99R actuarial instru-
ment to conduct a risk assessment and set his initial SONL
under OAR 255-085-0020. See Or Laws 2013, ch 708, § 7,
compiled as a note after ORS 163A.110 (addressing SONL
classification of “existing registrants,” i.e., people for whom
the event that triggered their obligation to make an initial
report as a sex offender, such as release into the community,
occurred before January 1, 2014); Baker v. Board of Parole,
305 Or App 814, 817, 473 P3d 83, rev den, 367 Or 290 (2020)
(explaining that, under the current SONL system, a person
convicted of a sex crime must be classified by the board to
determine the intensity of the person’s reporting obligation).
The board determined that petitioner’s Static-99R
score was “5” and, based solely on that score, issued an
order in June 2020 classifying him as Level 2 (Moderate).
Petitioner requested review, asserting, as relevant here, that
the board’s approach failed to take into account the 12 years
that he had been living sex-offense-free in the community.
As explained more later, the attending rules and research
1
The current rule requires agencies to “use the Static-99R actuarial instru-
ment with the coding manual” to conduct assessments, “except as to where it
conflicts with” a rule provision requiring registrants to be classified into Level
3 or Level 2 “if an assessment under OAR 255-085-0020(2) as it was at the
time of release from the index sexual offense” would have resulted in that clas-
sification, “without considering as part of the risk assessment the reduction of
risk due to time offense-free in the community.” OAR 255-085-0020(2); OAR
255-085-0020(6).
32 Sohappy v. Board of Parole
on the Static-99R website address sex-offense-free time in
the community as relevant to a sex offender’s risk of reof-
fending. In early September 2020, the board rejected peti-
tioner’s objections and issued a “Verification of Static-99R
Score and Final Order for Sex Offender Notification Level
Classification.” The board affirmed its decision to set peti-
tioner’s SONL at Level 2 (Moderate), based solely on his “5”
score on the Static-99R. As described in the notice sent to
petitioner, that decision was “final” as to petitioner’s initial
SONL classification and was “not subject to administra-
tive review under OAR 255-080” but was subject to judicial
review under ORS 144.335. Petitioner filed a timely petition
for judicial review of the board’s SONL order.
Because petitioner had petitioned for relief from reg-
istration, the board also issued a second final order, denying
relief from registration based on his Level 2 classification.
See ORS 163A.125(1)(a) (only people classified in Level 1 are
eligible to request relief from registration). On administra-
tive review of that order, petitioner continued to challenge
the board’s approach of setting his SONL without taking into
account his 12 years of sex-offense-free time in the commu-
nity. The board stated in its administrative review order,
“For consideration of offense-free time in the community, the
Board shall consider it when the Board conducts a reclas-
sification hearing.” Petitioner filed an amended petition for
judicial review to add the board’s order denying relief from
registration.
Petitioner seeks review of both orders, contending
that the risk assessment methodology adopted by rule in
OAR 255-085-0020—i.e., the Static-99R actuarial instru-
ment and the attending rules and research on the Static-
99R website—required the board to consider sex-offense-
free time in the community in setting his SONL. Had the
board done so, petitioner asserts, he would have been classi-
fied in Level 1, which would have both reduced the intensity
of his reporting obligation and required the board to proceed
to considering whether to relieve him from the registration
requirement. A person classified in Level 1 and otherwise
eligible may be relieved from the registration requirement
if the board “determines, by clear and convincing evidence,”
Cite as 329 Or App 28 (2023) 33
that the person “[i]s statistically unlikely to reoffend” and
“[d]oes not pose a threat to the safety of the public.” ORS
163A.125(4)(a).
II. PROCEDURAL ISSUES
As a preliminary matter, the board argues that
petitioner waived his objection, failed to exhaust his admin-
istrative remedies, and failed to preserve the issue raised on
judicial review. We disagree and conclude that the issue is
properly before us.
OAR 255-085-0040(1) provides that, with respect
to SONL classification orders, “[w]ritten objections are lim-
ited to presenting factual evidence regarding the Static-99R
score and must be plain, concise, and directly related to
specific items on the Static-99R that the registrant claims
were not scored correctly.” Consistent with that rule, the
board’s initial order setting petitioner’s SONL was accom-
panied by a Notice of Rights that advised petitioner that he
had “the right to present written factual evidence to show
that [his] Static-99R score is incorrect, as explained on the
Written Objections form and in OAR 255-085-0040,” and a
Written Objections form that stated that objections had to
be “directly related to specific items on the Static-99R.” The
Written Objections form listed the 10 factual items used to
calculate the Static-99R score and required petitioner to
check off the items that he was claiming “were scored incor-
rectly” and then provide a written explanation for each item
as to why he believed it was scored incorrectly.2
The rule, the notice provided to petitioner, and the
objection form provided to petitioner all indicate that the
only objections to the SONL order that could be raised to the
board were objections to the scoring of individual Static-99R
items. Consequently, it is not at all clear that the board pro-
vided a process for petitioner to challenge the board’s inter-
pretation of OAR 255-085-0020(1) as reflected in its order
setting his SONL at Level 2. See Golden Rule Farms v. Water
Resources Dept., 321 Or App 43, 48, 515 P3d 908 (2022) (gen-
erally, when “an agency provides a process for raising issues
2
The 10 factual items listed on the Written Objections form correspond to
the 10 factual items used to calculate a Static-99R score. See 329 Or App at 42.
34 Sohappy v. Board of Parole
to it, the doctrine [of administrative exhaustion] requires a
party to present the issue to the agency through that pro-
cess before a court will consider it”); cf. Peeples v. Lampert,
345 Or 209, 219, 191 P3d 637 (2008) (“when a party has no
practical ability to raise an issue,” “the preservation require-
ment gives way entirely”).
Nevertheless, petitioner did raise the issue to the
board. On the Written Objections form, petitioner did not
check any of the boxes listed, instead providing a two-page
letter. Petitioner did “not claim that he was scored incor-
rectly on any of the Static-99R items” but, as relevant here,
included a paragraph arguing that the board should have
taken into account his sex-offense-free time in the com-
munity. He argued that the board’s approach used a score
establishing his recidivism risk in 2008 to set his risk level
in 2020. He pointed out that the Static-99R coding rules and
attending research indicate that, for each five years of sex-
offense-free time in the community, a past offender’s like-
lihood of recidivism decreases by approximately half. He
concluded by asserting that, if the board had applied the
Static-99R correctly, i.e., taken into account his sex-offense-
free time in the community, it would have scored him at
“roughly 0, placing him at Level 1.”
We disagree with the board that petitioner waived
his right to challenge how the board set his risk level when
he stated in his letter accompanying his written objections
that “he does not claim that he was scored incorrectly on
any of the Static-99R Items.” That argument takes petition-
er’s statement out of context. In context, it is apparent that
no waiver occurred. We also disagree with the board that
petitioner failed to exhaust his administrative remedies,
or failed to preserve the issue, by not raising it in the first
paragraph of his letter. Petitioner’s letter is somewhat dis-
organized, but he raised and developed the argument later
in the letter, and the board has not identified any rule that
petitioner violated by structuring his letter as he did. The
fact that the board did not provide a clear mechanism to
raise the issue also weighs against taking an overly strict
view of how the argument was presented.
Cite as 329 Or App 28 (2023) 35
As for the second order, as described above, after
the board entered the SONL order, it entered a second
order denying relief from registration on the basis that peti-
tioner was classified in Level 2, and only people classified
in Level 1 are eligible for relief from registration. Petitioner
sought, and obtained, administrative review of that order.
On administrative review, he renewed his argument that
the board had incorrectly classified him in Level 2 because
OAR 255-085-0020 required the board to take into account
his sex-offense-free time in accordance with the Static-99R
attending rules and research. The board rejected that argu-
ment, stating that it would consider sex-offense-free time
“when the Board conducts a reclassification hearing.” The
board does not make any procedural arguments specific to
its second order, but, in the interests of completeness, we
note that petitioner exhausted administrative review as to
the second order, and he now seeks judicial review of that
order as well.
III. STANDARD OF REVIEW
We turn to the merits. Petitioner contends that the
board misinterpreted OAR 255-085-0020(1) as allowing
the board to rely entirely on petitioner’s Static-99R score to
determine his recidivism risk, without taking into account
sex-offense-free time in the community as provided in the
attending rules and research on the Static-99R website. We
therefore review the board’s order to determine whether
the board “erroneously interpreted a provision of law.” ORS
183.482(8)(a); ORS 144.335(3).
An agency’s interpretation of its own rule is entitled
to judicial deference “if that interpretation is plausible given
the wording of the rule, its context, and any other source of
law.” OR-OSHA v. United Parcel Service, Inc., 312 Or App
424, 434, 494 P3d 959 (2021). If the agency’s interpretation
is implausible, we interpret the rule using our usual con-
struction methodology. County of Klamath v. Ricard, 317
Or App 608, 612, 507 P3d 333 (2022); see also Noble v. Dept.
of Fish and Wildlife, 355 Or 435, 459, 326 P3d 589 (2014)
(rejecting an agency’s implausible interpretation of its rule
and remanding for the agency to apply the only plausible
interpretation); Don’t Waste Oregon Com. v. Energy Facility
36 Sohappy v. Board of Parole
Siting, 320 Or 132, 142, 881 P2d 119 (1994) (observing that
an agency’s interpretation is “erroneous” for purposes of
ORS 183.482(8)(a) if it is “inconsistent with the wording of
the rule itself, or with the rule’s context, or with any other
source of law”). “That is, we consider the text of the rule and
its context, including other portions of the rule and related
laws, and the rule’s adoption history.” County of Klamath,
317 Or App at 612 (internal quotation marks omitted); see
also State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009)
(setting out method of statutory interpretation). “[O]ur role
in interpreting rules, as in interpreting statutes, is to get
the answer as correct as we can.” OR-OSHA, 312 Or App at
435.
IV. BACKGROUND
Given the nature of the parties’ arguments, a sig-
nificant amount of background information is necessary to
lay the foundation for our analysis. We begin by summariz-
ing the history of Oregon’s sex offender registry and, in par-
ticular, the 2013 statutory changes that created the current
three-tiered SONL structure. We then describe the role of
the Static-99R in SONL classification.
A. Oregon’s Sex Offender Registry
The legislature established Oregon’s sex-offender
registry in 1989. Or Laws 1989, ch 984. The registry’s
purpose has always been “to assist law enforcement agen-
cies in preventing future sex offenses.” ORS 163A.045(1).
The registration requirement is regulatory in nature, not
punitive. State v. McNab, 334 Or 469, 481-82, 51 P3d 1249
(2002) (rejecting an ex post facto challenge to the registra-
tion requirement, based on the statutory purpose and the
fact that “[t]he operation of the law conforms to the legisla-
ture’s declared purpose”); see also, e.g., State v. Benson, 313
Or App 748, 770, 495 P3d 717, rev den, 369 Or 69 (2021)
(“The requirement that an offender acknowledge that they
are aware of their registration requirements exists as part
of a noncriminal regulatory framework, is individually reg-
ulatory in nature, and serves the noncriminal purpose of
effectuating Oregon’s sex offender registration system.”).
Cite as 329 Or App 28 (2023) 37
The provision that is now ORS 163A.100 was enacted
in 2013. Or Laws 2013, ch 708, § 1.3 Stakeholders in Oregon’s
sex offender registry—including the Oregon State Police
(which administers the registry), the Oregon Department
of Corrections (DOC), community corrections agencies, the
Oregon Criminal Defense Lawyers’ Association, the Oregon
State Sheriffs Association, and the board—were concerned
that the registry had become so large that it was no longer
serving its statutory purpose of assisting law enforcement
agencies in preventing future sex offenses. See Testimony,
House Judiciary Committee, HB 2549, Feb 28, 2013, Ex 4,
at 1-2 (statement of Jeff Wood, Parole & Probation Division
Commander, Marion County Sheriff’s Office) (describing
origin of bill). More than 19,000 people were on the registry
in 2013, and there was no way for law enforcement or super-
visory agencies to identify who posed a high risk of commit-
ting new sex offenses so that they could direct their limited
resources toward those offenders. See id. at 1 (describing
Oregon’s registry as “a bit of a Pandora’s Box” due to piece-
meal legislation); Audio Recording, House Committee on
Judiciary, HB 2549, Feb 28, 2013, at 29:30 (comments of Vi
Beatty, Manager, Sex Offender Registry, Oregon State Police),
https://olis.oregonlegislature.gov/liz/mediaplayer/?clien-
tID=4879615486&eventID=2013021184 (accessed Oct 5,
2023) (likening Oregon’s constantly growing registry to a
speeding battleship that urgently needed to be stopped but
would take some time to stop because, even if the proposed
legislation led to the removal of 5,000 registrants in the five
years after passage, it would take seven to 10 years to stop
the registry’s growth4).
As described by Brielyn Atkins, an advocate for vic-
tims of domestic violence, in a letter circulated on the house
floor by Representative Jennifer Williamson, one of the bill’s
sponsors, “Having a sex offender registry is important for
3
Or Laws 2013, ch 708, § 1, was codified as former ORS 181.800. As we will
discuss, the provision was amended in 2015. Or Laws 2015, ch 820, § 1. The same
year, former ORS 181.800 was renumbered as ORS 163A.100.
4
To the extent that the 2013 legislation was intended to stop or reverse the
registry’s growth trend, it has not done so. Since 2013, the registry has grown
to over 33,000 registrants. Frequently Asked Questions, Oregon State Police,
Sex Offender Registry Section, Sexoffenders.Oregon.Gov/FAQ (accessed Oct 16,
2023).
38 Sohappy v. Board of Parole
victim and community safety, but having an overly broad
registry can tax limited law enforcement resources by
requiring unnecessary supervision of certain offenders who
are not predatory and do not pose a high risk to the commu-
nity.” Floor Letter, Rep Jennifer Williamson, July 6, 2013,
HB 2549.
The 2013 legislation was meant to address that prob-
lem by creating a three-tiered registry that would “identify
an appropriate level of supervision” for each offender, “which
enables better allocation and use of limited resources.”
Testimony, Joint Committee on Ways and Means, Public
Safety Subcommittee, HB 2549, May 13, 2013, at 2 (state-
ment of Jeff Wood). Everyone on the registry would be clas-
sified as either a (1) “level one sex offender who presents the
lowest risk of reoffending and requires a limited range of
notification”; (2) “level two sex offender who presents a mod-
erate risk of reoffending and requires a moderate range of
notification”; or (3) “level three sex offender who presents the
highest risk of reoffending and requires the widest range of
notification.” Or Laws 2013, ch 708, § 1.
In addition to providing for different notification lev-
els, the 2013 legislation also provided mechanisms for reg-
istrants to seek reclassification to a lower notification level
or relief from registration altogether. Id. at § 5. However,
as a policy matter, the legislature made certain exceptions.
Registrants previously classified as “predatory sex offend-
ers” or “sexually violent dangerous offenders” were automat-
ically classified as Level 3, see id. at § 7(2), and they, along
with anyone else initially classified as Level 3, may never be
reclassified lower than Level 2 or relieved from the registra-
tion requirement. Id. at § 5(3)(b). Any registrant convicted of
a person felony or person Class A misdemeanor since their
sex-offense conviction may never be reclassified at all or
relieved from registration. Id. at § 5(3)(a).
Other than those policy exceptions, the legislature
wanted registrants to be classified based on their statistical
risk of committing another sex offense. The legislation there-
fore required DOC, which was charged with classifying new
registrants as they entered the community, to “adopt by rule
a sex offender risk assessment tool for use in classifying sex
Cite as 329 Or App 28 (2023) 39
offenders based on the statistical likelihood that an indi-
vidual sex offender will commit another sex crime.” Id. at
§§ 1, 2. DOC represented that it would adopt the Static-99R
as the risk assessment tool. Testimony, Joint Committee on
Ways and Means, Public Safety Subcommittee, HB 2549,
May 13, 2013, Ex 12, at 1 (statement of Cindy Booth, Oregon
Department of Corrections).
As for the more than 19,000 existing registrants,
the legislature directed the board to classify them by
December 1, 2016. Or Laws 2013, ch 708, § 7(2). The board
indicated that it would use existing Static-99R scores for
approximately 16,000 registrants who already had them.
Joint Committee on Ways and Means, Public Safety
Subcommittee, HB 2549, May 13, 2013, Ex 4, at 7 (HB 2549
Fiscal Summary, Jay Scroggin, Oregon Board of Parole and
Post-Prison Supervision). The board had used the Static-
99R, or its predecessor the Static-99, since at least 2004
to help assess whether people qualified as “predatory sex
offenders.” See V. L. Y. v. Board of Parole, 338 Or 44, 46 n 1,
106 P3d 145 (2005). It was therefore a well-established sta-
tistical tool, and many registrants had already been scored
on it.
In 2015, the legislature amended the statutory pro-
vision requiring DOC to adopt “a sex offender risk assess-
ment tool” to classify sex offenders based on their likelihood
of committing another sex crime, Or Laws 2013, ch 708, § 1,
replacing it with a requirement that the board adopt “a sex
offender risk assessment methodology” for that purpose, Or
Laws 2015, ch 820, § 1. The wording change from “tool” to
“methodology” had to do with the fact that the Static-99R is
statistically validated only for adult male sex offenders, so
a different tool needed to be used for female sex offenders
and juvenile sex offenders. See Testimony, Joint Committee
on Ways and Means, Public Safety Subcommittee, HB 2320,
Apr 20, 2015, Ex 6, at 1 (statement of Heidi Steward, Oregon
Department of Corrections, discussing need to use “appro-
priate methods and tools with various sex offending popula-
tions” and identifying female sex offenders and juvenile sex
offenders as “particularly challenging” to assess because of
the original statutory text).
40 Sohappy v. Board of Parole
Thus, since 2015, ORS 163A.100 has provided:
“The State Board of Parole and Post-Prison Supervision
shall, in consultation with community corrections agencies,
adopt by rule a sex offender risk assessment methodology
for use in classifying sex offenders. Application of the risk
assessment methodology to a sex offender must result in
placing the sex offender in one of the following levels:
“(1) A level one sex offender who presents the
lowest risk of reoffending and requires a limited range of
notification.
“(2) A level two sex offender who presents a mod-
erate risk of reoffending and requires a moderate range of
notification.
“(3) A level three sex offender who presents the
highest risk of reoffending and requires the widest range
of notification.”
The board thereafter promulgated a rule as directed. The
version of the rule in effect on April 29, 2020, which is the
version relevant to this case, states:
“For classification and community notification for
adult male registrants, the classifying agency shall use the
Static-99R actuarial instrument on the Board’s website at
http://www.oregon.gov/BOPPPS along with attending rules
and research found on http://www.static99.org/, to conduct
a sex offender risk assessment. Classifying agencies may
score registrants using information from previous Static-99
or Static-99R assessments. Classifying agencies shall score
and place each registrant into one of the following levels:
(a) Notification Level 1: Low risk; (b) Notification Level 2:
Moderate risk; or (c) Notification Level 3: High risk.”
OAR 255-085-0020(1).
The board was unable to complete the classification
of existing registrants within the timeline set by the legisla-
ture, and the legislature has repeatedly extended the dead-
line. Or Laws 2015, ch 820, § 27 (extending the deadline to
December 1, 2018); Or Laws 2017, ch 488, § 1 (extending the
deadline to December 1, 2022); Or Laws 2019, ch 430, § 1
(extending the deadline to December 1, 2026). In 2019, the
board advised the legislature that, without funding for addi-
tional staff, it would take over 40 years to finish classifying
Cite as 329 Or App 28 (2023) 41
everyone on the registry. House Committee on Judiciary,
HB 2045, Feb 4, 2019, Ex 4, at 7 (Dylan Arthur, Oregon
Board of Parole and Post-Prison Supervision, HB 2045
Agency Presentation). One consequence of the delay in clas-
sifying people who were already on the registry when the
three-tiered system went into effect in 2014 is that some
registrants—like petitioner—do not receive an initial
SONL until they petition for “reclassification” or relief from
registration.
B. The Static-99R
Because the board selected the Static-99R actu-
arial instrument and attending rules and research on the
Static-99R website as the risk assessment methodology to
be used in classifying adult male sex offenders like peti-
tioner, we next describe that methodology. The coding rules
for the Static-99R—see Amy Phenix, Yolanda Fernandez,
Andrew J. R. Harris, Maaike Helmus, R. Karl Hanson, &
David Thornton, Static-99R Coding Rules Revised, 2016,
available at https://saarna.org/static-99/ (accessed Oct 6,
2023) (Coding Rules)5 —as well as the research cited in this
section were available on the Static-99R website in April
2020 and therefore were part of the “attending rules and
research found on http://www.static99.org/” referenced in
OAR 255-085-0020. See Capture of Static99.Org from April
15, 2020, Web.Archive.org, available at http://web.archive.
org/web/20200415133800/http:/www.static99.org/ (accessed
Oct 6, 2023) (showing Static-99R website as of April 15,
2020).6
The “Static-99R is an actuarial risk assessment
instrument designed to assess risk of sexual recidivism for
adult males who have already been charged with or convicted
of at least one sex offence against a child or a non-consent-
ing adult.” Coding Rules at 12. The most recent sex offense
for which a person has been arrested, charged, or con-
victed is the “index offense.” Id. at 38. A person is scored on
5
The Coding Rules are also available as an exhibit to the board’s current
rules. OAR 255-085-0020 (Aug 16, 2022) (Exhibit STATIC-99R). We agree with the
parties that the Coding Rules are “attending rules” under OAR 255-085-0020(1).
6
In late April or early May 2020, the Static-99R website moved. It is now
located at https://saarna.org/static-99/.
42 Sohappy v. Board of Parole
10 factual items pertaining to their personal and criminal
history at the time of the index offense or, for certain items,
at the time of release for the index offense:7 (1) the person’s
age at release for the index sexual offense; (2) whether the
person ever lived with an intimate partner for two contin-
uous years; (3) index convictions for nonsexual violence;
(4) prior convictions for nonsexual violence; (5) prior sexual
offenses; (6) number of prior sentencing dates; (7) convic-
tions for noncontact sex offenses; (8) having any unrelated
victim; (9) having any stranger victim; and (10) having any
male victim. Id. at 45-84. For example, the second item “is
scored based on relationship history prior to release from
the index offence.” Id. at 49. The scores on each item are
added together to determine the person’s Static-99R score.
Id. at 85.
The Static-99R predicts a person’s risk of sexual
recidivism at a specific point in time, which is “on the day of
their first opportunity to reoffend after the index offence (e.g.,
release from prison for the index sex offence, conviction date
if they received a non-custodial sentence, or date of charge
if there was no conviction).” Id. at 66. “No matter how much
time has passed since then, the score still summarizes what
their risk was like on that day.” Id. In other words, because a
person’s Static-99R score is based on historical facts as they
existed on the date of release for the index offense, the score
will never change, regardless of when it is calculated or how
much time passes. As long as the index offense remains the
same, a person’s Static-99R score will be the same whether it
is calculated on their release date or, for example, 12, 20, or
50 years later.
According to the Coding Rules and research on the
Static-99R website, a risk assessment based solely on the
Static-99R score is statistically valid for “approximately two
years” from release. Id. at 13. Essentially, a person’s Static-
99R score remains the same over time (absent a new index
7
In the context of the Static-99R, the date of “release” means the date when
“the offender is ‘free’ (in the community) after the index sex offence is processed
and therefore has an opportunity to reoffend. It may refer to release from court,
jail, prison, psychiatric hospital, or the like. Offenders are considered in the com-
munity if they are on parole, probation, or other types of community supervision.
If they do not receive a custodial sentence for their index offence, the release date
would be the date of conviction.” Coding Rules at 48.
Cite as 329 Or App 28 (2023) 43
offense), while the risk of sexually reoffending changes over
time, predictably declining for those who remain sex-offense-
free in the community. David Thornton, R. Karl Hanson,
Sharon M. Kelley, & James C. Mundt, Estimating Lifetime
and Residual Risk for Individuals Who Remain Sexual
Offense Free in the Community: Practical Applications,
33(I) Sexual Abuse 3 (2021), available at https://saarna.org/
research/ (accessed Oct 6, 2023) (Estimating Lifetime and
Residual Risk).8
Recognizing that evaluators may want to assess a
person’s sexual recidivism risk at a point in time later than
two years after release, the Coding Rules address that issue.
As to sex-offense-free time in the community, the Coding
Rules state:
“In some cases, evaluations may be for offenders who have
had a substantial period at liberty in the community (since
their release from the index sex offense * * *) with oppor-
tunity to sexually reoffend, but have not done so. The lon-
ger an offender has been free of detected sexual offending
since [their] release to the community from their index sex
offence, the lower their risk of recidivism. Our research has
found that, in general, for every five years the offender is
in the community without a new sex offence, their risk for
recidivism roughly halves. Consequently, we recommend
that for offenders with two years or more sex offence free
in the community since release from the index offence, the
time they have been sex offence free in the community
should be considered in the overall evaluation of risk. Static
risk assessments estimate the likelihood of recidivism at
the time of release and we expect they would be valid for
8
Estimating Lifetime and Residual Risk was available on the Static-99R
website before April 2020 but was formally published in 2021, so we use the 2021
date. As summarized in the article’s abstract:
“Although individuals with a history of sexual crime are often viewed as
a lifelong risk, recent research has drawn attention to consistent declines in
recidivism risk for those who remain offense free in the community. Because
these declines are predictable, this article demonstrates how evaluators can
use the amount of time individuals have remained offense free to (a) extrap-
olate to lifetime recidivism rates from rates observed for shorter time peri-
ods, (b) estimate the risk of sexual recidivism for individuals whose current
offense is nonsexual but who have a history of sexual offending, and (c) calcu-
late yearly reductions in risk for individuals who remain offense free in the
community.”
Estimating Lifetime and Residual Risk, 33(I) Sexual Abuse at 3.
44 Sohappy v. Board of Parole
approximately two years. For offenders released for longer
than two years and who have remained sex offence free,
consider their overall behavior and factors external to
Static-99R in your overall risk assessment.”
Id. at 13-14 (internal citation omitted). The Static-99R web-
site also provides a “Lifetime and Residual Risk Calculator,”
with accompanying user manual, as an evidence-based
method to account for sex-offense-free time in the commu-
nity. David Thornton et al, Time Free in the Community
Calculator, available at https://saarna.org/static-99/
(accessed Oct 6, 2023); David Thornton et al, User Manual
Lifetime Residual Risk Calculator, available at https://
saarna.org/static-99/ (accessed Oct 6, 2023). The calculator
is based on the research discussed in Estimating Lifetime
and Residual Risk. Thornton et al, User Manual Lifetime
Residual Risk Calculator at 1.
It should be noted that sex-offense-free time occu-
pies a unique place in the Static-99R methodology. It is the
only factor external to the Static-99R score that the Coding
Rules specifically recommend how to address. As to other
external factors, the Coding Rules simply state that a “pru-
dent evaluator will always consider other external factors
* * * that may influence risk in either direction,” including
“dynamic or changeable risk factors,” as well as factors such
as an offender’s stated intentions to cause further harm
(higher risk) or restricted ability to reoffend due to health or
a structured living environment (lower risk).9 Coding Rules
at 7.
9
Another “external factor” that may increase the risk of sexual recidivism
is a person’s commission of non-sexual offenses since release into the community
on the index sex offense. Coding Rules at 14. “[A] new conviction for post-index
non-sexual offending increases risk,” and that “effect is additive to and indepen-
dent from the [sex offense] time free effect.” L. Maaike Helmus et al, Static-99R
& Static 2002R Evaluators’ Workbook (Sept 28, 2021) at 5, available at https://
saarna.org/static-99/ (accessed Oct 6, 2023) (Evaluators’ Workbook). If an eval-
uator wishes to consider that external factor as part of a person’s risk assess-
ment, there is an option to include the information in the calculator available
on the Static-99R website. Thornton et al, User Manual Lifetime Residual Risk
Calculator at 2 (identifying “three factors determining risk for future sexual
offending” that the calculator can account for, including the “[i]ncrease in risk for
individuals who reoffend non-sexually after release from the sentence served for
their index sex offense”).
We note that the Evaluators’ Workbook (referred to in the Coding Rules as
the “Evaluators’ Handbook”) cited in the preceding paragraph is a companion
Cite as 329 Or App 28 (2023) 45
Finally, the Coding Rules emphasize that strict
adherence to the coding rules is critical to a statistically
valid result. “The instrument’s ability to rank offenders in
terms of their relative risk for sexual recidivism has been
shown to be robust across many settings using a variety of
samples.” Id. at 6 (internal citation omitted); see also id. at 7
(when correctly used, the Static-99R’s predicative accuracy
on a scale of 0 to 1 is .69 or .70, which is “moderate predictive
accuracy”). However, deviating from the coding rules under-
mines the reliability of the Static-99R:
“It is important to score all items according to the scor-
ing rules in this coding manual. Although the coding rules
may not address all possible situations (requiring some
professional judgement) and there may be some situations
where the coding rules seem counter-intuitive because of
the nuances of a particular case, it is important to stick to
these coding rules as much as possible and not to override
them with your own judgement (even when strict adher-
ence to the coding rules feels silly). The reason that it is
necessary to stick to the coding rules as closely as possible
is because the further you deviate from the rules, the less
applicable the research base behind the scale will be, and
the normative data from the scale (e.g., percentiles, risk
ratios, and recidivism estimates) may no longer be applica-
ble. In order to benefit from the evidence base that supports
the use of the scale, you must use the scale in a way that is
consistent with the manual.”
Id. at 7. Similarly, adjusting a Static-99R score to account
for external factors, rather than identifying them as exter-
nal factors, “or adding ‘over-rides,’ distances Static-99R esti-
mates from their empirical base and substantially reduces
their predictive accuracy.” Id.
V. ANALYSIS
Having laid the foundation for our discussion, we
turn to the specifics of this case. As previously mentioned,
the board determined that petitioner’s Static-99R score was
document to the Coding Rules that provides “information on how to interpret
and report the [Static-99R] score results (including both relative and absolute
risk information).” Coding Rules at 4. It “is updated periodically to incorporate
advances in research” and is separate from the Coding Rules due to the expec-
tation that “updated research will require frequent updates to the [Evaluators’
Workbook], but not the [Coding Rules].”
46 Sohappy v. Board of Parole
“5” and, based solely on that score, classified him as Level 2
(Moderate), i.e., classified him as presenting a moderate risk
of committing a new sex offense. See ORS 163A.100 (defin-
ing Level 2).
Petitioner argues that, had the board properly
applied the Static-99R methodology, including the attending
rules and research, it would have assessed him as present-
ing a very low risk of committing a new sex offense and clas-
sified him in Level 1 (Low). The crux of petitioner’s argu-
ment is that the board has implausibly interpreted OAR
255-085-0020(1) as allowing it to disregard sex-offense-free
time in the community when setting a registrant’s SONL.
In petitioner’s view, the only plausible interpretation of the
rule is that, when the board assesses the risk that a regis-
trant will commit a new sex offense and sets their SONL to
reflect that risk, the board must use the attending rules and
research on the Static-99R website regarding sex-offense-
free time in conducting its risk assessment. Had the board
done so in this case, petitioner contends, the board would
have recognized that, although petitioner presented a mod-
erate risk of reoffending 12 years ago when he was released
into the community (as “release” is used in the Static-99R
materials), he currently presents a very low risk of reoffend-
ing, according to the Static-99R rules and research.
The board responds that it is not required to account
for sex-offense-free time in the community when doing the
risk assessment to set a registrant’s initial SONL. In the
board’s view, the Static-99R methodology gives the board
“discretion” whether—and how—to consider sex-offense-
free time in the risk assessment. The board points to its use
of an “Age Chart” to score Item 1 on the Static-99R as how
it has chosen to exercise that discretion.
Before we address the issues on which the parties
disagree, we observe that there is a foundational issue that
does not appear to be in dispute, which is that the board’s
charge under ORS 163A.100 is to classify sex offenders into
one of three notification levels based on their risk of reof-
fending at the time of the assessment. Thus, in this case, for
example, the board is not assessing the risk that petitioner
presented when he was released 12 years ago or deciding
Cite as 329 Or App 28 (2023) 47
what notification level would have been warranted 12 years
ago—it is assessing the risk that he presents now and what
notification level is warranted now.10
We agree with that tacit premise of the parties’
argument. It is supported by the text of ORS 163A.100,
which requires application of the adopted risk assessment
methodology to place each sex offender into the notification
level that corresponds to the degree of risk that that sex
offender “presents.” The use of the present tense verb “pres-
ents” strongly suggests that the board is to assess current
risk. That is also consistent with the purpose of the stat-
ute, which is to assist law enforcement in preventing future
sex offenses by classifying registrants based on their risk of
committing a new sex offense. Law enforcement is concerned
with present risk, not historical risk. Finally, the Supreme
Court has held that the registry is regulatory in nature, not
punitive, in part precisely because “[t]he operation of the law
conforms to the legislature’s declared purpose.” McNab, 334
Or at 480. For all of those reasons, we agree that the board’s
task in conducting risk assessments under ORS 163A.100
and OAR 255-085-0020(1) is to assess the risk that the reg-
istrant presents at the time of the risk assessment.
We now turn to the matters on which the parties
disagree. The principal point of disagreement is whether
the risk assessment methodology that the board adopted in
OAR 255-085-0020(1) for use in classifying adult male sex
offenders—that is, the Static-99R actuarial instrument on
the Board’s website along with attending rules and research
found on the Static-99R website—requires the board to
10
We recognize that, when it created the three-tiered SONL system in 2013,
the legislature likely was unaware of the significance of sex-offense-free time to
sexual recidivism risk and likely was not thinking about that issue with respect
to existing registrants. Past sex offenders have historically often been “viewed as
a lifelong risk,” Estimating Lifetime and Residual Risk, 33(I) Sexual Abuse at 3,
and the research regarding sex-offense-free time was significantly less developed
in 2013 than it is now. However, the fact remains that the 2013 legislature enacted
a statute that tasked the board with assessing present risk. Moreover, the board
promulgated a rule requiring it to use the rules and research on the Static-99R
website, which are more current than what was available in 2013. Cf. Testimony,
Joint Committee on Ways and Means, Public Safety Subcommittee, HB 2320,
Apr 20, 2015, Ex 6, at 1 (statement of Heidi Steward, Oregon Department of
Corrections, recognizing—albeit in a different context—the benefit of having a
statute that is flexible enough “to allow for adoption of new or proven methods
and tools as best practices evolve over time”).
48 Sohappy v. Board of Parole
account for sex-offense-free time in the community (as peti-
tioner argues) or simply permits the board to consider sex-
offense-free time in the community if it chooses to do so (as
the board argues).
We have held that, under a version of OAR 255-
085-0020 substantively the same as the one at issue here,
the board has discretion in applying the Static-99R to the
extent that its choices are consistent with the Coding Rules.
Baker, 305 Or App at 822 (concluding that the board did
not abuse its discretion in declining to contact a collateral
source to confirm a fact that the petitioner reported on his
Static-99R questionnaire, because the Coding Rules gave
the evaluator discretion to decide whether to do so); see also
Stewart v. Board of Parole, 312 Or App 32, 36, 492 P3d 1283
(2021) (“[W]e review for legal error the board’s interpreta-
tion of the Static-99R Coding Rules.”).11 Relying on that
principle, the board argues that “the recommendations in
the Static-99R Coding Rules do not impose an affirmative
obligation on the board to score an individual’s Static-99R or
assess an individual differently based on offense-free time.
Rather, they provide the board discretion to consider that
circumstance in conducting an assessment.” In particular,
the board points out that the Coding Rules “recommend”
taking sex-offense-free time into account “for offenders who
have had a substantial period at liberty in the community
* * * with opportunity to sexually reoffend, but have not done
so.” Coding Rules at 13.
In isolation, the use of the word “recommend” in the
Coding Rules could be read to suggest that it is the evalua-
tor’s choice whether to consider sex-offense-free time in the
community as part of the risk assessment. However, view-
ing that statement in context, we are unpersuaded by the
board’s argument.
The Coding Rules make clear that the Static-99R
score itself measures the risk of recidivism at a specific
point in time—“on the day of [the person’s] first opportunity
to reoffend after the index offence (e.g., release from prison
11
In Baker and Stewart, there were no questions about whether the board’s
choices were consistent with the research found on the Static-99 website, so we
did not consider or discuss that issue.
Cite as 329 Or App 28 (2023) 49
for the index sex offence, conviction date if they received a
non-custodial sentence, or date of charge if there was no con-
viction).” Id. at 66. “No matter how much time has passed
since then, the score still summarizes what their risk was
like on that day.” Id. Because a person’s sexual recidivism
risk declines over time as time passes without a new sexual
offense, the Static-99R score is “valid,” that is, it is a statis-
tically valid measure of a person’s risk of sexual recidivism,
only at release and for “approximately two years” there-
after. Id. at 13. Thus, if, more than two years after a per-
son’s release, an evaluator uses the Static-99R score alone
to assess the person’s recidivism risk, the evaluator will nec-
essarily reach a statistically invalid conclusion, according to
the information in the Coding Rules.
Even if the Coding Rules on their own could be
read to only suggest, not require, that evaluators account
for sex-offense-free time in conducting risk assessments,
the research found on the Static-99R website—which OAR
255-085-0020(1) expressly requires the board to “use” in
conducting a sex offender risk assessment—is unequivocal
that sex-offense-free time must be considered to achieve a
statistically valid result. That research shows that a past
sex offender’s sexual recidivism risk predictably declines
over time as time passes without the commission of a new
sex offense and that a Static-99R score accurately predicts
sexual recidivism risk for only a limited time after release.
Estimating Lifetime and Residual Risk, 33(I) Sexual Abuse
at 3. Moreover, the more sex-offense-free time that an eval-
uator fails to account for, the more statistically inaccurate
the risk assessment will be. See id. (the risk of committing a
new sex offense declines with each year that a person is free
in the community and does not reoffend).
In short, the Coding Rules’ explanation of the statis-
tical principles underlying its rules demonstrates that, as to
registrants who have been living in the community for more
than two years since release, the board must consider sex-
offense-free time to arrive at a statistically valid assessment
of the risk that the registrant will commit a new sex offense,
and the research on the Static-99 website confirms and elab-
orates on that fact, including providing a statistically valid
50 Sohappy v. Board of Parole
means of calculating the effect of sex-offense-free time on
sexual recidivism risk. Thus, to “use the Static-99R actuar-
ial instrument on the Board’s website * * * along with attend-
ing rules and research found on http://www.static99.org/, to
conduct a sex offender risk assessment,” the board had to
consider petitioner’s sex-offense-free time in the community.
Any other interpretation of OAR 255-085-0020(1) would
result in the board disregarding the attending rules and
research on the Static-99R website, rather than using them.
Our conclusion also is consistent with the statutory
scheme that the board adopted the rule to implement. To
effectuate the three-tiered registry created by the legisla-
ture to help law enforcement prevent future sex crimes, and
subject to certain exceptions, ORS 163A.100 tasks the board
with assessing each existing and new registrant to deter-
mine the statistical risk of committing another sex offense
that they “present.” We have previously invalidated a rule
“that does not, in fact, relate to what the board is supposed
to measure.” V. L. Y., 338 Or at 53 (invalidating a DOC rule
regarding the board’s classification of “predatory sex offend-
ers,” where the relevant statute required DOC to “develop a
scale that identifies those characteristics or combination of
characteristics that ‘show a tendency to victimize or injure
others’ ” and did “not authorize [DOC] to devise a scale that
narrows or alters the board’s inquiry or require the board
to limit its inquiry to a scale that does not, in fact, relate to
what the board is supposed to measure”).
In sum, we agree with petitioner that the board
implausibly interpreted OAR 255-085-0020 as allowing it
to disregard a registrant’s sex-offense-free time in the com-
munity when using “the Static-99R actuarial instrument
* * * along with attending rules and research found on http://
www.static99.org/” to assess the risk that a registrant will
commit a new sex offense. The board’s approach improperly
resulted in the board setting petitioner’s SONL based on his
risk of reoffending during 2008 to 2010 (the two-year period
after his release for the index offense), rather than his risk
of reoffending in 2020, when the board assessed him and
decided what risk he presents to the community at that time
and the concomitant appropriate reporting level.
Cite as 329 Or App 28 (2023) 51
Having concluded that the board’s rule required it
to account for sex-offense-free time in the community in a
manner consistent with the Static-99R actuarial instrument
and the attending rules and research found on the Static-
99R website, we lastly address the board’s “Age Chart.” The
board contends that using the Age Chart is a permissible
way to account for sex-offense-free time in the community.
We disagree.
The “Age Chart” is not something available on
the Static-99R website. Rather, it is a tool developed by an
unknown person and used by the board in scoring Items 1
and 2 of the Static-99R. Only Item 1 is at issue in this case,
so we limit our discussion to Item 1. The Coding Rules pro-
vide that Item 1 is to be scored based on the person’s age at
the time of release for the index sex offense, with different
point amounts for different age brackets. Coding Rules at
46. A person is to receive one point if aged 18 to 34.9 years
old at release, zero points if aged 35 to 39.9 years old at
release, negative-one point if aged 40 to 59.9 years old at
release, and negative-three points if aged 60 years or older
at release. Id. The board follows the Coding Rules for Item 1
for some, but not all, registrants. If a registrant was released
more than 10 years before the assessment and has not been
convicted in the past 10 years of a person felony or person
Class A misdemeanor, then, instead of using the registrant’s
age at the time of release for the index sex offense (per the
Coding Rules), the board uses the registrant’s age at the
time of the assessment (per its Age Chart). See Oregon Board
of Parole and Post-Prison Supervision, SONL - Age Chart,
available at https://www.oregon.gov/boppps/Documents/
R%26R/S99R_AgeChart2019.pdf (accessed Oct 9,
2023) (Age Chart).
Sometimes, as in petitioner’s case, the board’s use
of the Age Chart has no effect on the scoring of Item 1.12
However, if a person has changed age brackets between
their release date and their assessment date, the use of the
12
Petitioner was 20 years old in 2008 (his release date for Static-99R pur-
poses) and was 32 years old in 2020 (his assessment date). Under the Coding
Rules, he would receive one point for Item 1 because he was in the 18-to-34.9 age
bracket in 2008. Relying on its Age Chart, the board scored petitioner one point
for Item 1 because he was in the 18-to-34.9 age bracket in 2020.
52 Sohappy v. Board of Parole
Age Chart will reduce the person’s score on Item 1 and, thus,
their overall Static-99R score.
We agree with petitioner that use of the Age Chart
violates the Coding Rules, particularly the rule that exter-
nal factors be addressed separately from the Static-99R
score, rather than being “ ‘added’ to the Static-99R score
or used in any way to adjust the Static-99R score.” Coding
Rules at 7; see also id. (“It is important to score all items
according to the scoring rules in this coding manual. * * *
In order to benefit from the evidence base that supports the
use of the scale, you must use the scale in a way that is
consistent with the manual.”). Use of the Age Chart is there-
fore not permitted by OAR 255-085-0020(1), which requires
the board to use the Static-99R actuarial instrument and
attending rules and research on the Static-99R website to
conduct risk assessments. OAR 255-085-0020(1) does not
allow the board to use the Age Chart in place of part of the
Static-99R methodology.
VI. CONCLUSION
To achieve its objectives in creating a three-tiered
registry that is more usable by law enforcement to prevent
future sex crimes, the legislature tasked the board with
adopting a methodology for use in classifying sex offenders
based on their risk of committing a new sex offense. The
board adopted the Static-99R actuarial instrument and
attending rules and research on the Static-99R website
as its methodology for assessing adult male sex offenders.
We agree with petitioner that the only plausible interpre-
tation of the version of OAR 255-085-0020(1) in effect on
April 29, 2020, is that it requires the board to conduct its
risk assessments in accordance with the Static-99R rules
and research, which includes rules and research regarding
sex-offense-free time in the community. The board failed to
comply with its own rule when it assessed petitioner.
Reversed and remanded.