Oregon Parole Board Ordered to Consider Sex-Offense-Free Time When Setting Sex Offender Notification Levels
On November 28, 2023, the Oregon Court of Appeals reversed a determination by the state Board of Parole and Post-Prison Supervision that denied a former state prisoner relief from registration as a sex offender without considering the time he had spent without recidivating.
When Dominique J. Sohappy was convicted in 2008 of sexual misconduct-related charges and placed on probation, he was required to register as a sex offender. After a dozen years of remaining sex offense-free, he petitioned the Board for relief from registration requirements in 2020.
Since Sohappy had not been classified under the state’s sex offender notification system, the Board used the Static-99R risk assessment, which classified him at Level 2—a moderate risk of reoffending. In doing so, however, the Board ignored the fact that Sohappy had spent a dozen years in the community without committing any other sex offenses; further, the Board had based his notification level on his risk of reoffending from 2008 to 2010, the two years following his conviction, rather than 2020, when the assessment was conducted.
Sohappy unsuccessfully appealed his Level 2 classification. His petition for relief from registration requirements was also denied because only Level 1 offenders could apply. He then sought review at the Court of Appeals, which reversed the Board’s decision.
The appellate court first rejected the state’s argument that Sohappy had waived his objections, failed to exhaust administrative remedies and failed to preserve the issue raised on appeal. Reaching the merits of his case , the Court considered whether the Board had improperly interpreted OAR 255-085-0020(1) when it failed to consider the time Sohappy had spent in the community free of new sex offenses prior to filing his petition for relief. Notably, the rules and research applicable to the Static-99R assessment stated that such offense-free time should be taken into account during the scoring process.
The Court observed that the Static-99R “predicts a person’s risk of sexual recidivism at a specific point in time—the date of their release from prison or date of conviction if they were not incarcerated.” Therefore, “[a]s 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.” Yet while the Static-99R score remains the same, the risk of recidivism for a sex crime declines for offenders who remain in the community sex-offense-free, according to the Static-99R’s accompanying rules. Specifically, “for every five years the offender is in the community without a new sex offense, their risk for recidivism roughly halves.”
Turning to ORS 163A.100, the Court said the law requires the Board to classify sex offenders “based on their risk of reoffending at the time of the assessment”—which, in Sohappy’s case, was in 2020, not between 2008 and 2010. The Board argued it had discretion to ignore the time offenders spend in the community without committing new sex crimes when conducting Static-99R assessments. But the Court disagreed, writing that such time “must be considered to achieve a statistically valid result.” That finding was dictated by OAR 255-085-0020(1), which requires the Board to use Static-99R’s “attending rules and research.”
Therefore, the Court said that the Board had “implausibly interpreted” the application of the Static-99R assessment with respect to Sohappy. Additionally, the use of an “age chart” to adjust the Static-99R score was not permitted because it violated the attending rules. Since the Board had violated its own policies, the case was remanded for reconsideration of Sohappy’s notification level and petition for relief. He was represented before the Court by the Office of Public Defense Services. See: Sohappy v. Bd. of Parole and Post-Prison Supervision, 329 Or.App. 28 (2023).
The Court issued rulings in two other cases raising similar issues on the same day. In Watson v. Bd. of Parole & Post-Prison Supervision, 329 Or.App. 13 (2023), the court also reversed the Board because of a failure to consider sex-offense-free time in the community when setting a sex offender’s notification level. However, in Lewis-Taylor v. Bd. of Parole, 329 Or.App. 53 (2023), the Board’s notification level was affirmed because petitioner Jermaine K. Lewis-Taylor had not raised the issue related to sex-offense free time in his administrative appeal. Further, his case was subject to a version of OAR 255-085-0020 that went into effect on November 25, 2020, one which did not apply to Sohappy or Watson. The adverse ruling was based “on procedural grounds, without reaching the merits,” the appellate court noted.
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Related legal cases
Sohappy v. Bd. of Parole and Post-Prison Supervision
| Year | 2023 |
|---|---|
| Cite | 329 Or.App. 28 (2023) |
| Level | State Court of Appeals |
Watson v. Bd. of Parole & Post-Prison Supervision
| Year | 2023 |
|---|---|
| Cite | Watson v. Bd. of Parole & Post-Prison Supervision |
| Level | State Court of Appeals |
Lewis-Taylor v. Bd. of Parole
| Year | 2023 |
|---|---|
| Cite | 329 Or.App. 53 (2023) |
| Level | State Court of Appeals |