Appeals court considers whether Offender Registry Board misapplied factor 29 to long "offense-free" period
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Summary
Counsel for a John Doe argued the hearing examiner acted arbitrarily by ignoring long offense-free time in the community and failing to apply factor 29 or catchall factor 37; the Board responded that the studies underpinning factor 29 examine post-incarceration samples and that the regulations define when offense-free time begins.
The panel heard argument in an appeal from an Offender Registry Board determination over whether the hearing examiner properly applied the Boards risk factors. Counsel for the appellant said his client had been offense free in the community for roughly a decade after the events at issue and that the examiners failure to give mitigating weight to that period was arbitrary and capricious.
abHe's been entirely offense free since March 2013,bb counsel told the court, urging either remand for a more searching analysis or a conclusion that the examiner had misapplied the regulation. The appellant argued that the Boards factor 29, which gives weight to offense-free time,should have been read in context and that the examiner could have considered the period under the catchall factor 37.
Gabrielle Lamano, appearing for the Board, said factor 29 is grounded in two studies cited in the regulation and that those studies largely analyze post-incarceration release cohorts; she argued the plain language of the regulation defines when offense-free time is measured and that, absent expert evidence or a specific study on pre-adjudication community time, the examiner was not required to treat the period as equivalent to post-release time.
The panel questioned whether hearing counsel could have sought funding for an expert under precedent and whether a remand for development of a record would be appropriate. The court took the matter under submission.
