explaining that a registry requirement was not punitive because it “exists as part of a noncriminal regulatory framework, is individually regulatory in nature, and serves the noncriminal purpose of effectuating Oregon’s sex offender registration system”
How later courts described this case
- explaining that a registry requirement was not punitive because it “exists as part of a noncriminal regulatory framework, is individually regulatory in nature, and serves the noncriminal purpose of effectuating Oregon’s sex offender registration system”
Written by the judges who cited it.
The opinion
No. 579 August 21, 2024 447
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JERRY L. ALLEN,
aka Jerry L. Nieblas,
Petitioner,
v.
BOARD OF PAROLE AND
POST-PRISON SUPERVISION,
Respondent.
Board of Parole and Post-Prison Supervision
A179800
Argued and submitted December 13, 2023.
Anna Pervukhin Sammons argued the cause and filed
the briefs for petitioner.
Benjamin Gutman, Solicitor General, argued the cause
for respondent. Also on the brief was Ellen F. Rosenblum,
Attorney General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
AOYAGI, P. J.
Reversed and remanded.
448 Allen v. Board of Parole
AOYAGI, P. J.
Petitioner seeks judicial review of a September 2022
order of the Board of Parole and Post-Prison Supervision. In
that order, the board set petitioner’s sex offender notification
level (SONL) at Level 3 (High), based on the board’s applica-
tion of current OAR 255-085-0005 and OAR 255-085-0020.
Petitioner challenges the order on several legal grounds,
but we need only consider one, because it is dispositive. We
recently held in Thomsen v. Board of Parole, 333 Or App
703, 704-05, ___ P3d ___ (2024), that the foregoing rules are
invalid because they conflict with the enabling statute, spe-
cifically by requiring the board to classify some registrants
based on their historical recidivism risk rather than their
recidivism risk at the time of classification. We reverse and
remand on the basis addressed in Thomsen, without reach-
ing petitioner’s other arguments.
BACKGROUND
In 2004, petitioner was convicted of sex offenses
that he committed when he was 22 years old. He received a
probationary sentence and was required to register as a sex
offender. Petitioner has not been convicted of any new sex
offenses since 2004, although he has twice been convicted of
failure to register.
Oregon’s sex offender registry is discussed at some
length in Sohappy v. Board of Parole, 329 Or App 28, 540
P3d 568 (2023). In short, as relevant here, ORS 163A.100
requires the board to classify registered sex offenders into
three risk levels based on the risk of reoffending that each
person “ ‘presents,’ ” which determines the “ ‘range of notifi-
cation’ ” that the person “ ‘requires.’ ” Id. at 40 (quoting ORS
163A.100). The board has decided to use the Static-99R as
its actuarial risk assessment instrument for adult males. Id.
at 41. The Static-99R entails scoring a person on 10 factual
items, resulting in a total score that provides a statistically
valid estimate of the person’s relative risk of committing a
new sex offense as of the date of his release from supervision.
See id. at 41-45 (describing the Static-99R). A person’s Static-
99R score validly predicts the person’s risk of sexually reof-
fending for approximately two years from the release date.
Cite as 334 Or App 447 (2024) 449
Id. at 42. Beyond those two years, if the person has not com-
mitted and continues not to commit any new sex offenses,
the person’s risk of reoffending declines in a predictable way,
according to research related to the Static-99R. Id. at 42-43
(“[A] person’s Static-99R score remains the same over time
(absent a new index offense), while the risk of sexually reof-
fending changes over time, predictably declining for those
who remain sex-offense-free in the community.”).
In this case, the board classified petitioner for the
first time in its September 2022 order. Petitioner received
a score of “6” on the Static-99R, representing the risk of
sexually reoffending that he presented in 2004, when he
was released into the community on his index offenses,
through approximately 2006. Applying OAR 255-085-0020,
the board relied entirely on petitioner’s Static-99R score of
“6” to set his SONL at Level 3 (High), without considering
petitioner’s conduct in the 18 years since his release or its
effect on his present risk of sexually reoffending. Petitioner
unsuccessfully challenged the board’s approach in the board
proceeding and now challenges it on judicial review.
ANALYSIS
We have issued a number of decisions in the last
year regarding the board’s rules on SONL classification. In
Sohappy, 329 Or App at 28, and Watson v. Board of Parole,
329 Or App 13, 540 P3d 20 (2023), we held that the board
had misinterpreted a previous version of OAR 255-085-
0020 when it classified registrants based on the risk of sex-
ual reoffending that they presented years in the past, rather
than the risk that they present at the time of classification.
Most recently, in Thomsen, we held that the current ver-
sions of OAR 255-085-0005 and 255-085-0020 are invalid
because “the board’s methodology for initial classification of
an individual’s SONL does not measure what the legislature
has charged it with measuring under ORS 163A.100 (i.e.,
present risk), but instead measures ‘the registrant’s risk as
it was at the time of their release from their index offense.’ ”1
Thomsen, 333 Or App at 715 (quoting OAR 255-085-0005).
1
Between the time that the petitioners in Sohappy and Watson were classi-
fied and the time that the petitioners in Thomsen and this case were classified,
the board significantly amended its rules as to initial classification of registrants.
450 Allen v. Board of Parole
The board applied the current versions of OAR 255-
085-0005 and OAR 255-085-0020 in this case. As such,
this appeal is controlled by Thomsen, and we could simply
reverse and remand without further discussion. The board’s
arguments have evolved over time, however, and we feel it
prudent to address here a newer version of an argument
that we first addressed in Watson and that the board makes
again in this case in a somewhat different way. See Watson,
329 Or App at 24-25 (describing a board argument regard-
ing the 2013 legislature’s intent as to existing registrants).
The thrust of the argument is that, notwithstanding the
text of ORS 163A.100 itself, the larger statutory scheme of
which ORS 163A.100 is a part evinces a legislative intent to
classify all registrants based on their risk of reoffending at
the time of release, not at the time of classification.
The board’s argument focuses on the disparate
treatment of two groups of people. The first group consists
of registrants who are classified and given an SONL imme-
diately upon their release into the community. The second
group consists of registrants who are classified and given an
SONL after years of living in the community. Imagine that
the board classifies people in both groups in 2022. A person
in the first group who scores “6” on the Static-99R will be
initially classified in Level 3, based solely on that score, and
consequently will never be eligible for reclassification below
Level 2 or removal from the registry. See ORS 163A.125(3)
(b) (so providing for registrants initially classified in Level
3). Meanwhile, a person in the second group who scores “6”
on the Static-99R but has lived in the community for years
without sexually reoffending will be initially classified in
Level 2 or 1, based on the combination of his score and his
offense-free time in the community, and consequently will
be eligible for reclassification to Level 1 or removal from the
registry. See ORS 163A.125(2)(c), 163A.125(1)(a) (so provid-
ing as to Level 2 and 1 offenders).
The board views the foregoing disparity as unfair.
It argues that the legislature would have wanted everyone
with the same Static-99R score to receive the same initial
SONL classification, regardless of when initial classification
occurs.
Cite as 334 Or App 447 (2024) 451
There is undoubtedly some tension in the statutory
scheme, as we have acknowledged in prior cases. See, e.g.,
Watson, 329 Or App at 25. On the one hand, it requires ini-
tial classification based on the recidivism risk that each reg-
istrant “presents,” while on the other hand it requires some
registrants to remain on the registry for life regardless of
changes in their actual risk profile. That tension may be due
to the fact that, “when it created the three-tiered SONL sys-
tem in 2013, the legislature likely was unaware of the sig-
nificance of sex-offense-free time to sexual recidivism risk
and likely was not thinking about that issue with respect
to existing registrants.” Sohappy, 329 Or App at 47 n 10; see
also id. at 43 n 8 (noting research advancements since 2013).
In any event, only the legislature can resolve it. Until and
unless the legislature revisits the issue, there will tension
within the statutory scheme regardless of our holdings in
these cases—it is just a matter of which part of the statutory
scheme we view as taking precedence with respect to the
issue before us.
In our view, the statutory text and the purpose of
the registry are the most persuasive indication of the leg-
islative intent regarding initial classification. The legisla-
ture chose to create a classification system based on the
recidivism risk that a person “presents.” ORS 163A.100.
That legislative choice is consistent with the fact that the
registry serves a regulatory, rather than punitive, purpose.
The stated purpose of the registry is “to assist law enforce-
ment agencies in preventing future sex offenses.” ORS
163A.045(1). In responding to constitutional challenges,
“the Supreme Court has held that the registry is regula-
tory in nature, not punitive, in part precisely because ‘[t]he
operation of the law conforms to the legislature’s declared
purpose[.]’ ” Sohappy, 329 Or App at 42 (quoting State v.
MacNab, 334 Or 469, 480, 51 P3d 1249 (2002)); see also, e.g.,
State v. Benson, 313 Or App 748, 770, 495 P3d 717, rev den,
369 Or 69 (2021) (explaining that a registry requirement
was not punitive because it “exists as part of a noncriminal
regulatory framework, is individually regulatory in nature,
and serves the noncriminal purpose of effectuating Oregon’s
sex offender registration system”).
452 Allen v. Board of Parole
If the registry were punitive in nature, we might
be more persuaded by the board’s argument that the leg-
islature intended (or would have intended) for all regis-
trants who score similarly on the Static-99R to receive the
same initial classification, regardless of their actual recid-
ivism risk at the time of classification. Such an approach
is at odds, however, with a regulatory system that is not
supposed to be punitive but, rather, is supposed to protect
the public by assisting law enforcement to identify the past
offenders most likely to reoffend so that available resources
may be directed toward them. See Sohappy, 329 Or App
at 37-38 (discussing concerns about the registry from law
enforcement and other stakeholders that led to the three-
tiered system adopted in 2013).
We therefore reject the board’s argument regard-
ing disparate treatment of different groups of offenders and
reaffirm our decisions in Sohappy, Watson, and Thomsen.
Applying Thomsen, we reverse and remand the board’s order
in this case.
Reversed and remanded.