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

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 constrain how regulators may weigh repeated pre‑apprehension conduct in future classification hearings.

The petitioners’ argument rests in part on expert material they say shows clustering of offenses (repetitive conduct before detection) is not empirically linked to higher recidivism. Daniels told the court that Dr. Hansen’s work — which the petitioner placed in an amicus filing — indicates that “if you have somebody who has repeated offenses before they are apprehended ... that person is statistically no more likely to reoffend.” Daniels said Hansen and the record show “there are no studies on the subject” of whether clusters by themselves predict dangerousness.

Responding, Attorney Shanae told the court the board needs tools to assess dangerousness as distinct from risk of reoffense. “The reality is that Dr. Hansen has always said clusters offending does not cause an absolute rise in risk,” Shanae said, but she added the hearing examiner here did not rely on factor 37 to prove a high danger alone; rather, she said, the examiner “considered repetitive … offending as it applies to dangerousness” along with other factors.

Shanae framed factor 37 as a qualitative tool that allows an examiner to evaluate the likely nature of future harm by using “past as prologue,” noting the allegations at issue included multiple assaults on a 13–14‑year‑old victim and a subsequent rape of another victim. She pointed to other regulation provisions (for example, factor 31, concerning debilitating physical conditions) that the board considers without direct empirical studies, saying some factors are necessarily common‑sense assessments used to craft a fair classification.

Both sides acknowledged uncertainty in the empirical literature. Daniels urged the court to require that the board ground its guidelines in “objective facts and data and empirically validated science” to protect due process, while Shanae said the statutory and regulatory scheme requires examiners to consider the number and nature of offenses and to weigh a range of elevating and mitigating factors on a case‑by‑case basis.

What was not decided at the hearing: Daniels requested the court vacate the hearing examiner’s decision; the transcript contains argument and questioning but no ruling. Several justices posed questions about whether common sense plays a role and about how the hearing examiner classified factor 37 relative to statutory high‑risk factors, but the record excerpted here ends before any court disposition.

Context and next steps: The dispute arises against the backdrop of earlier litigation that limited the board’s prior factor 2 analysis; both parties discussed the board’s regulatory framework and cited prior decisions and expert literature while urging the court to adopt the approach they say preserves both public safety and due‑process protections.