At Supreme Court hearing, attorneys debate whether Board’s Factor 37 duplicates disallowed factor 2

Summary

Attorneys before the state Supreme Court clashed over whether a corrections board’s use of regulation “factor 37” to assess dangerousness effectively revives the previously invalidated “factor 2” analysis and whether scientific evidence supports weighting repeated pre‑apprehension offenses.

Attorney Josh Daniels told the court he would “plan to focus mostly on factor 37 this morning,” and argued that the board’s current use of the factor is “no meaningful difference” from how it previously applied the now‑struck version of factor 2.

Daniels said the board is relying on repeated offenses that occurred before apprehension “to make a prediction about the offender’s future” conduct and that there is “no scientific or empirical validation that this kind of conduct is predictive of anything.” He urged the court to vacate the hearing examiner’s decision applying factor 37 to increase an offender’s classification.

Why it matters: The case asks whether a hearing examiner may treat the number and repetitiveness of offenses in an offender’s pre‑apprehension “index cluster” as elevating dangerousness when the former iteration of factor 2 was limited by prior decisions for violating due process. A ruling for the petitioner would…

At Supreme Court hearing, attorneys debate whether Board’s Factor 37 duplicates disallowed factor 2

Summary

Subscribe to keep reading