S056672, Opinion — Weems/Roberts v. Board of Parole

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Argued and submitted September 18, 2009, decisions of Court of Appeals
are affirmed February 4, 2010

EDGAR LEE WEEMS,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA A128497; SC S056672)

MICHAEL A. ROBERTS,
Petitioner on Review,
v.
BOARD OF PAROLE
AND POST-PRISON SUPERVISION,
Respondent on Review.
(CA A124125; SC S056741)
(Consolidated for Argument and Opinion)

227 P3d 671

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CJS, Pardon and Parole § 55.

# En Banc

On review from the Court of Appeals .*

Carolyn Bys, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause for petitioner on
review. With her on the briefs were Peter Gartlan, Chief
Defender, and Irene B. Taylor, Deputy Public Defender.

Jeremy C. Rice, Assistant Attorney General, Salem,
argued the cause for respondent on review. With him on the
brief were John R. Kroger, Attorney General, and Jerome
Lidz, Solicitor General.

LINDER, J.

The decisions of the Court of Appeals are affirmed.

\* On judicial review of final order of Board of Parole and Post-Prison
Supervision dated November 24, 2004. 221 Or App 70, 190 P3d 381 (2008).

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# LINDER, J.

The principal issue presented in these two cases is
whether the Board of Parole and Post-Prison Supervision
(the board) may consider an offender's full criminal history
and personal background in imposing special conditions of
post-prison supervision, or whether the board must limit its
review to the facts and circumstances of an offender's current
crimes of conviction.1 In these cases, based on each peti-
tioner's criminal history, the board imposed special condi-
tions that are appropriate for sex offenders, even though peti-
tioners were currently serving sentences for nonsexual
crimes. We conclude, as did the Court of Appeals, that the
board is authorized to impose special conditions of post-
prison supervision based on an offender's criminal history
and background, rather than based only on the current
crimes of conviction. Weems v. Board of Parole, 221 Or App
70, 75, 190 P3d 381 (2008); Roberts v. Board of Parole, 221 Or
App 278, 282, 190 P3d 397 (2008). We further conclude, as
did the Court of Appeals, that the record before the board
adequately supported the board's decision to impose the par-
ticular special sex offender conditions that it imposed in each
of these cases. Weems, 221 Or App at 76-77; Roberts, 221 Or
App at 282. We therefore affirm the decisions of the Court of
Appeals.

In describing the facts and procedural history of the
two cases before us, we begin with petitioner Weems's case,
because the Court of Appeals decided that case first, and then
relied on its decision in Weems to resolve petitioner Roberts's
case. See Weems, 221 Or App 70; Roberts, 221 Or App at 282.

Weems was convicted of several drug crimes and
sentenced to a period of incarceration for those crimes, fol-
lowed by post-prison supervision. Although none of Weems's
current crimes of conviction was a sexual offense, his crimi-
nal history included previous charges of sexual offenses. In
particular, he had been arrested in 1991 on charges of sod-
omy in the first and second degrees. The sodomy charges
were dismissed, for reasons that are not a matter of record. In

1 The cases proceeded individually before the board and the Court of Appeals,
and each petitioner individually petitioned this court for review. After granting
those petitions, we consolidated the cases for purposes of argument and decision.

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1993, Weems was arrested on charges of sexual abuse in the
first and second degrees. Those charges were resolved
through a plea agreement in which Weems pleaded guilty to
the lesser crime of menacing in exchange for dismissal of the
sex abuse charges. In addition to those sexual offense
charges, Weems had two previous convictions for endanger-
ing the welfare of a minor and other drug convictions.

Before Weems's scheduled release to post-prison
supervision for his current drug convictions, the Department
of Corrections (the DOC) prepared a proposed release plan
for him. In submitting that proposed plan to the board, the
DOC included Weems's 2004 sex offender risk assessment,
which outlined Weems's past sexual offense charges and
included information that Weems had reported that
the alleged victim of the 1991 sodomy charges was the 9- or
10-year-old son of one of Weems's friends. In the release plan,
in addition to standard conditions, the DOC recommended
several special conditions of post-prison supervision that it
believed were appropriate for Weems based on his criminal
history. The special conditions included four so-called "sex
offender" conditions that are among those that are manda-
tory for individuals who are on post-prison supervision after
committing a sexual offense.2 The board accepted the DOC's
recommendation and ordered Weems to comply with the fol-
lowing sex offender special conditions:

"3. Offender shall have no contact with minor females
and shall not frequent any place where minors are likely to
congregate * * * without prior written approval from their
supervision officer. PER PO.

"4. Offender shall have no contact with minor males
and shall not frequent any place where minors are likely to
congregate * * * without prior written approval from their
supervising officer. PER PO.

2 ORS 144.102(3)(b) provides (as it did in 2003) that, if a person is on post-
prison supervision following conviction of a sexual offense, the board shall include
all of several special conditions of post-prison supervision set out in subparagraphs
of the statute. The list contained in the statute, which is much more extensive than
the four imposed in Weems's case, are mandatory for persons who are on supervi-
sion following conviction of a sexual offense.

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"5. Offender shall submit to random polly]graph tests
as part of a sex offender surveillance program. * * * PER
PO.

"6. Offender shall enter and complete or be success-
fully discharged from a recognized and approved sex
offender treatment program. * * * PER PO."3

Weems requested administrative review by the
board. In his request, Weems challenged the sex offender spe-
cial conditions, arguing that the board could not impose them
in his case, because he had never committed or been con-
victed of a sexual offense. The board granted Weems's
request for administrative review, but denied relief. In its
order, the board explained that it has authority to impose sex
offender special conditions based on an offender's individual
circumstances. It further explained why it imposed sex
offender special conditions in Weems's case:

"On September 6, 1991, you were arrested for the crimes
of Sodomy in the First Degree and Sodomy in the Second
Degree. These charges were dismissed. On July 22, 1993,
you were arrested for the crimes of Sexual Abuse in the
First Degree and Sexual Abuse in the Second Degree. You
were convicted of the lesser included charge of Menacing. It
was these individual circumstances that led the board to
determine that it was necessary to impose the contested
special conditions in your case. The board took into consid-
eration the age of the offenses when it imposed the special
conditions to be implemented at the discretion of your
supervising officer. Consequently, if your supervising officer
does not deem it appropriate to implement the special condi-
tions imposed by the board in your Order of Supervision,
then you will not have to comply with those conditions.
However, if your supervising officer determined that these
special conditions were appropriate to implement, then you
would have to comply with these conditions."

Weems sought judicial review in the Court of
Appeals, raising, as his principal challenge, the issue of the
board's authority to impose sex offender special conditions on

3 The parties agree that "PER PO" is shorthand for "PER PAROLE OFFICER."
As we later explain, the board imposed identical special conditions in Roberts's
case. In doing so, however, it used the notation "PER PAROLE OFFICER" instead
of the shorthand that it used in Weems's case.

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an offender whose current crime of conviction is not a sexual
offense. Weems alternatively argued that, even if the board
may impose special conditions based on an offender's crimi-
nal history and personal background, the board's decision to
impose the sex offender conditions in his case was not sup-
ported by the record that the board had before it.

Relying on this court's decision in Martin v. Board of
Parole, 327 Or 147, 159, 957 P2d 1210 (1998), the Court of
Appeals observed that the board has broad discretionary
authority under ORS 144.102(3)(a)4 to impose special condi-
tions that serve public safety and the reformation of the indi-
vidual offender. Weems, 221 Or App at 75. The board does not
abuse its delegated authority under the statute, the Court of
Appeals concluded, unless there is no "discernable relation-
ship" between the special conditions of supervision that the
board imposes and "either petitioner's individual circum-
stances or the protection of the public." Id. Consequently, the
Court of Appeals held that the board has the statutory
authority to impose sex offender special conditions on some-
one who is not a convicted sex offender and who is not under
post-prison supervision for a sexual offense. Id.5

The Court of Appeals then reviewed the board's
explanation for imposing sex offender special conditions in
Weems's case. In the Court of Appeals' view, the board took
into account the age and lack of detail about Weems's past

4 We set out the statute and discuss it at greater length later in our decision.
Because the board issued its order in Roberts's case in 2003 and in Weems's case in
2004, unless otherwise noted, all references to the Oregon Revised Statutes are to
the 2003 versions.

5 In their petitions for review, petitioners framed, as their first question pre-
sented, whether the Court of Appeals incorrectly used a "no discernible relation-
ship" standard to test whether the record in these cases supports the board's impo-
sition of the challenged special conditions. Petitioners do not present that question
in their briefs on the merits. As our description of the Court of Appeals decision
demonstrates, the Court of Appeals did not use that terminology in connection with
the standard of review for the board's particular orders in these cases. Instead, the
court was describing the board's legal authority under ORS 144.102(3)(a) to con-
sider information beyond the facts and circumstances of an offender's crime of con-
viction in imposing special conditions of post-prison supervision. We do not endorse
the Court of Appeals' particular terminology in that regard. As we will later
describe, however, we agree with the court's conclusion that the board is, in fact,
authorized under the statute to consider an offender's personal history and back-
ground, in addition to the offender's crime of conviction, in imposing special condi-
tions of post-prison supervision.

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charges by imposing the sex offender special conditions, but
doing so "contingent on the supervising officer's evaluation."
Id. at 76-77. The Court of Appeals concluded that Weems's
four prior charges for sexual offenses and his conviction for
menacing provided adequate support for the board's order.
Id. at 77.

Roberts raised the same challenge to the board's
authority that Weems had raised. Roberts was serving sen-
tences for assault and weapons offenses. As was true of
Weems, although none of Roberts's current crimes of convic-
tion was a sexual offense, his criminal history included pre-
vious charges of sexual offenses. In particular, Roberts had
been arrested in 1992 for rape in the third degree, but that
charge was later dismissed. In 1993, Roberts was arrested for
several sexual offenses, including sexual abuse in the first
degree, sodomy in the first degree, and rape in the first
degree. Those charges resulted in a conviction of sexual mis-
conduct, an offense that includes, as an element, sex with a
victim under the age of 18.6 Roberts also had past arrests at
various times for nonsexual offenses.

The board imposed the same four sex offender special
conditions of post-prison supervision that we quoted from
Weems's order. Roberts requested administrative review by
the board, arguing that the board may impose those condi-
tions only on offenders who are on post-prison supervision for
a sexual offense, which he was not. As in Weems's case, the
board granted review, but denied relief. In doing so, the
board explained:

"Pursuant to ORS 144.102(3)(a), the board may estab-
lish any special conditions it determines are necessary
because of the individual circumstances of the person on
[post-prison supervision]. On March 24, 1995, Mr. Roberts
was convicted of Sexual Misconduct pursuant to ORS
163.445. On November 16, 1993, Mr. Roberts was arrested
for the crimes of Rape in the First Degree, Sodomy in the
First Degree, and Sexual Abuse in the First Degree. It was

6 See ORS 163.445(1) ("A person commits the crime of sexual misconduct if the
person engages in sexual intercourse or deviate sexual intercourse with an unmar-
ried person under 18 years of age.").

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these individual circumstances that led the board to deter-
mine it was necessary to impose the contested special con-
ditions in Mr. Roberts' case. The board recognized that
Mr. Roberts was not being supervised on a sex offense when
it indicated that the contested special conditions would be
implemented at the discretion of the supervising officer. If
the supervising officer concludes that the contested special
conditions are not necessary, then they will not be imple-
mented. However, there was a legitimate basis for the
board to impose the special conditions on Mr. Roberts'
Order of Supervision."

Roberts petitioned for judicial review. Before the
Court of Appeals, he challenged both the board's authority to
impose sex offender special conditions for persons on super-
vision for crimes other than sexual offenses and the adequacy
of the record to support those conditions in his case. The
Court of Appeals resolved Roberts's arguments "for the rea-
sons expressed in Weems." Roberts, 221 Or App at 282.7

On review, petitioners renew the arguments that
they made to the Court of Appeals, although (as we later
note) they expand on those arguments in certain regards. We
begin with their argument that the board may impose special
conditions based only on the "facts of the offense" and the
"offender's characteristics that contributed to the commission
of the offense."

7 Because petitioners completed their terms of post-prison supervision and
were discharged before the Court of Appeals issued its decisions, the Court of
Appeals also considered whether the cases were moot. It held that petitioners'
claims regarding the special conditions restricting contact with minors are moot,
but that their claims regarding the board's imposition of polygraphs and sex
offender treatment are not. Weems, 221 Or App at 72 n 1; Roberts, 221 Or App at
280-82. We agree. Any decision by the Court of Appeals or this court regarding the
conditions restricting contact with minors will not have any practical effect on peti-
tioners' rights. See Brumnett v. PSRB, 315 Or 402, 405-06, 848 P2d 1194 (1993)
(concluding that a justiciable controversy exists if (1) parties' interests are adverse
and (2) court's decision in matter will have some practical effect on rights of the
parties). However, petitioners' challenges to the sex offender special conditions
requiring them to submit to polygraphs and to participate in sex offender treat-
ment are not moot, because the state is seeking reimbursement from petitioners for
the costs of those conditions. Thus, the results of petitioners' challenges to those
special conditions will affect their obligation to pay for the costs of their required
polygraphs and sex offender treatment. The board does not take issue with the
Court of Appeals' conclusions in those regards. Because we agree with the Court of
Appeals' analysis, we do not discuss it further.

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ORS 144.102(3)(a) is the source of the board's
authority to impose special conditions of post-prison super-
vision. It provides:

"The board or supervisory authority may establish spe-
cial conditions as the board or supervisory authority shall
determine are necessary because of the individual circum-
stances of the person on post-prison supervision."

Petitioners rely on the phrase "individual circumstances" in
ORS 144.102(3)(a). Invoking the dictionary definitions of
both "individual" and "circumstances," petitioners urge that
the board is authorized to consider only the events that led to
a person's release on post-prison supervision-that is, the cir-
cumstances of the person's current crimes of conviction.

We disagree. The key words of the statute are "indi-
vidual circumstances of the person." (Emphasis added.) The
statute thus focuses, specifically, on the offender, not the
offense. That, in turn, naturally implies that the board is to
consider more generally the offender's personal history and
background. To be sure, the individual circumstances of the
person on supervision would include the circumstances of
that person's current crimes of conviction, because that is
part of the offender's history and background. But by author-
izing the board to impose special conditions of post-prison
supervision based on the individual circumstances of "the
person" on supervision, rather than the circumstances of the
offense, the legislature plainly intended the board to consider
more than just the narrow circumstances of an offender's cur-
rent crimes of conviction.

Context confirms that understanding. See State v.
Gaines, 346 Or 160, 171, 206 P3d 1042 (2009) (starting point
for statutory interpretation is text and context). ORS
144.102(3)(a) is one of several statutes bearing on the process
by which the board considers and adopts conditions of post-
prison supervision for individual offenders. That process
begins with the DOC. Before the offender's release, the DOC
must prepare a proposed release plan under ORS
144.096(1)(a), which includes any special conditions of post-
prison supervision as may be necessary "to promote public
safety" and "to assist the reformation of the inmate." ORS
144.096(3)(d), (f). The board then reviews the proposed

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release plan. In performing its review, the scope of what the
board may consider is extensive. Under ORS 144.098(1), the
board may interview the individual offender and also may
consider:

"(a) Reports of any physical, psychiatric or psycholog-
ical examinations of the inmate;

"(b) The presentence investigation report specified by
ORS 144.791 or, if no such report has been prepared, a
report of similar content prepared by institutional staff;

"(c) The record of the inmate's conduct during confine-
ment; and

"(d) Any other information relevant to the inmate's
reintegration into the community that may be submitted by
the inmate, the inmate's attorney, the victim of the crime,
the Department of Corrections, local corrections agencies or
any other person."

After completing that review, the board must specify "in
writing the conditions of post-prison supervision." ORS
144.102(1). In addition to standard conditions authorized by
statute for all offenders,8 the board, as already described,
may impose special conditions when the board determines
those conditions to be "necessary because of the individual
circumstances of the person on post-prison supervision." ORS
144.102(3)(a).

The statutes governing the process for the board's
review and imposition of the special conditions of post-prison
supervision underscore the offender-specific focus of the
board's authority. The statutory scheme does not limit the
board's review to the facts and circumstances of an offender's
current crime of conviction (which the presentence investi-
gation report would provide). Instead, the board is expressly
authorized to consult information about the offender's overall
physical and mental health, the offender's behavior while
incarcerated and, significantly, "any other information" from
any source "relevant to the inmate's reintegration into the

8 Under ORS 144.102(2), the board is authorized to impose certain standard
conditions on any offender being released on post-prison supervision, such as a
requirement that the offender answer all reasonable inquiries by his supervisory
authority, report to his parole officer as directed, obey all laws, and not own, pos-
sess, or control a weapon. ORS 144.102(2)(c), (d), (e), and (f).

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community." ORS 144.098(1)(d). We therefore agree with the
Court of Appeals, and we hold that ORS 144.102(3)(a)
authorizes the board to consider the individual circum-
stances and nature of the offender, and not just the offender's
current crime or crimes of conviction, in determining what
special conditions of post-prison supervision are appropriate
to impose for a particular offender.9

We turn to petitioners' alternative arguments that,
even if the board had authority to look beyond their current
crimes of conviction in imposing special conditions of post-
prison supervision, the records before the board do not sup-
port the board's imposition of the challenged conditions in
their particular cases. Petitioners point to the express word-
ing of ORS 144.102(3)(a), which authorizes the board to
impose special conditions if they are "necessary" based on the
individual circumstances of the person to be supervised.
According to petitioners, when, as here, the board relies on
circumstances other than those of the current crime of convic-
tion, the board must have before it evidence of "recent, signif-
icant conduct" that raises "imminent" concerns for public
safety or an offender's reformation. Petitioners urge that the
evidence on which the board relied-i.e., their past histories
of criminal charges and convictions-was too remote and too

9 Petitioners offer legislative history that they believe supports their interpre-
tation. See Gaines, 346 Or at 171-72 (parties are entitled to proffer legislative his-
tory to court regardless of whether statute is ambiguous; evaluative worth of leg-
islative history is for court to decide). As we have cautioned, however, a party
seeking to overcome the seemingly plain and unambiguous text of a statute has a
"difficult task before it." Id. at 172. In this instance, the legislative history rein-
forces our understanding of ORS 144.102(3)(a) and its context, rather than contra-
dicts it. The statute was modeled on the parallel provisions of ORS 144.270 (1973),
which governed the board's authority to impose special conditions on parole and
which were enacted as part of a larger bill in 1973. Or Laws 1973, ch 694, § 7. Sev-
eral of the provisions of that larger 1973 bill were drawn from the Model Penal
Code (MPC) and tracked the MPC provisions verbatim, while other provisions were
deliberately drafted to differ in their terms. Tape Recording, House Committee on
Judiciary HB 2110, Mar 20, 1973, Tape 11, Side 2 (statements from board member
Terry Johnson). The statute authorizing the board to impose special conditions of
parole did not follow the MPC, which expressly required special conditions to be
specifically "related to the cause of [the inmate's] offense[.]" Model Penal Code
§ 305.13(1) (Proposed Official Draft 1962). The legislature instead authorized spe-
cial conditions of parole based on the "individual circumstances of the parolee."
ORS 144.270(3) (1973). The legislature's choice to depart from the terms of the
MPC in that regard confirms our understanding that the Oregon statute was
intended to confer broader authority on the board than the MPC would have
conferred.

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limited in detail to support imposition of sex offender special
conditions in their particular cases.

Petitioners' arguments thus raise a further legal
point about what ORS 144.102(3)(a) requires. Essentially,
their position is that the statute requires the board to rely on
evidence of a particular quality and kind-namely, evidence
of "recent, significant conduct" that raises "imminent" con-
cerns for public safety or an offender's reformation. We disa-
gree that the statute places those legal limits on what the
board may consider. As we have already discussed, textually,
ORS 144.102(3)(a) directs the board in general terms to
impose special conditions based on what is "necessary
because of the individual circumstances of the person on
post-prison supervision." In Martin, we explained that the
term "necessary" in that context takes its meaning from the
other statutes that identify the permissible objectives that
special conditions should serve. 327 Or at 159. The key stat-
ute in that regard is ORS 144.096, which directs the DOC to
propose special conditions for the board's review based on
what may be necessary "to promote public safety" and "to
assist the reformation of the inmate."1º ORS 144.096(3)(d), (f)
(emphasis added). This court concluded in Martin that the
legislature did not intend the board, given "the vagaries of
human experience," to tailor special conditions narrowly to
address only certain or immediate risks to public safety or
offender reformation; instead, the legislature has granted the
board broad discretion to impose special conditions to
address any substantial danger in those regards. 327 Or at
159-60. Martin thus directly refutes the idea that the board
may impose special conditions of post-prison supervision only
when a danger to public safety or offender reformation is
"imminent" in nature.

10 In Martin, this court relied on the Court of Appeals' examination of the stat-
utory scheme, which had included ORS 144.096(3), and endorsed the Court of
Appeals' conclusion that

" 'the "necessity" of special conditions must be determined in reference to the
statutory objectives that are repeated throughout the * * * statutes, namely,
the protection of public safety and the reformation of the offender.'"

327 Or at 159 (quoting Martin v. Board of Parole, 147 Or App 37, 43, 934 P2d 626
(1997)).

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We also reject petitioners' argument that the board,
if it considers information other than the current crime of
conviction, may impose special conditions based only on an
offender's "recent, significant conduct." Again, ORS
144.102(3)(a), in conferring on the board the authority to
impose special conditions of post-prison supervision, contains
no such limitation. To the contrary, as we have described, the
board is expressly authorized to consult wide-ranging infor-
mation about an offender's personal background and full
criminal history. ORS 144.098(1). That information specifi-
cally includes "any * * * information relevant to the inmate's
reintegration into the community." ORS 144.098(1)(d). It also
includes an offender's presentence report (ORS 144.098(1)(b)),
which relates an offender's criminal history preceding his
sentencing on his current crimes of convictions, and thus
inherently encompasses dated information, rather than con-
duct that is close in time to an offender's release on post-
prison supervision. To conclude that the board may not con-
sider certain information based solely on the age of that
information would be inconsistent with what the legislature
has expressly authorized.

Beyond that legal issue about what the statute
requires, petitioners' arguments are more record-specific and
are directed to what special conditions the board permissibly
could impose in their particular cases. Petitioners do not
present their arguments in terms that track the familiar
standards by which appellate courts review agency orders-
that is, a review for abuse of discretion, substantial evidence,
or substantial reason. See ORS 144.335(3) (standards of judi-
cial review that apply to agencies under ORS 183.482(8)
apply to judicial review of board orders); ORS 183.482(8)(b)
and (c) (review for abuse of discretion and substantial evi-
dence); Martin, 327 Or at 157 (board's order must provide
"some kind of an explanation connecting the facts of the case
(which would include the facts found, if any) and the result
reached"). For the sake of analytical clarity, therefore, we
begin by examining which of those problems are implicated
by the arguments that petitioners make.

The issue is not whether the board adequately set
forth its reasoning in its orders-that is, whether the board's
orders are supported by substantial reason. In each order, as

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we quoted earlier, the board identified the particular facts on
which it relied-i.e., the specific past sexual offense charges
in each petitioner's criminal history and any convictions that
resulted from those charges-as its reason for imposing the
sex offender special conditions of post-prison supervision.
The board's obligation to set out its reasoning sufficient for
appellate review required it to do no more.

Neither is this an issue of whether the board abused
its discretion. As we explained in Martin, whether the board
abuses its discretion by imposing a particular special condi-
tion depends on whether the board's choice is "within the per-
missible range of choices" that the legislature has authorized
the board to make. Id. at 160. That inquiry, this court further
observed, "has meaning only in the context of the statutory
objectives that the [b]oard is to pursue." Id. at 159 (internal
quotations omitted). If the board determines, based on ade-
quate evidence, that an offender to be released on post-prison
supervision is at risk of committing a sexual offense in the
future, the imposition of sex offender special conditions is a
logical way for the board to further the safety of the public, as
well as the offender's reformation and "reintegration into the
community." ORS 144.098(1)(d). The board would be entitled
to conclude in such a case that sex offender special conditions
are necessary and, therefore, within the range of permissible
choices that the board could make.

But did these records provide an adequate basis for
the board to determine in each case that petitioners are at
risk of committing future sexual offenses? That is the case-
specific question that petitioners' arguments most directly
pose. In each of these cases, the board reasoned that peti-
tioner's individual criminal history provided reason for con-
cern sufficient to justify imposition of the four sex offender
special conditions of post-prison supervision. In effect, the
board implicitly found in each case that petitioners' history of
past charges of sexual offenses, and any convictions resulting
from those charges, was reason to believe that each petitioner
was at risk of committing sexual offenses in the future.

Petitioners' arguments take aim at that finding by
urging, in essence, that the board could not reasonably so

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conclude based on the records before it. According to petition-
ers, for two reasons, the board should not have given any
weight to the events on which it relied. First, petitioners
urge, it was "inherently unreasonable" for the board to rely
on "unproven allegations" that petitioners had committed
sexual offenses in the past. Second, according to petitioners,
the events were "remote." In that regard, petitioners suggest
that, because the events occurred several years ago and peti-
tioners have not been charged since with additional sexual
offenses, their past criminal charges fail to reveal a history or
pattern of conduct that would suggest an ongoing risk of
future sexual offenses. Correctly framed, then, each peti-
tioner's challenge is that the board's order is not supported by
substantial evidence. See Einstein v. PSRB, 330 Or 121, 127,
998 P2d 654 (2000) (describing "substantial evidence" stan-
dard of review); ORS 183.482(8)(c) ("substantial evidence
exists to support a finding when the record, viewed as a
whole, would permit a reasonable person to make that
finding").

Petitioners' argument is similar to the one that this
court addressed in Einstein. In that case, the issue was
whether substantial evidence supported a finding by the
Psychiatric Security Review Board (PSRB) that the peti-
tioner suffered from a mental disease at the time of the hear-
ing on his request to be discharged on conditional release.
There, the petitioner argued that the PSRB had relied only
on evidence of the petitioner's past mental condition and that
the record contained no present diagnosis to support the
PSRB's finding of a present condition.

In rejecting the petitioner's substantial evidence
challenge, this court emphasized the nature of the court's
review. Contrary to the Court of Appeals' reasoning, it did not
matter whether it was "'equally as inferable from that evi-
dence that [the petitioner] no longer suffers from a mental
disease as it is that the disease continues but is in remission.'"
Id. at 126 (quoting Einstein v. PSRB, 153 Or App 522, 525-26,
958 P2d 843 (1998)). Properly, the issue was only whether,
based on the record before the PSRB, "a reasonable person
could find, either directly or by permissible inference, that
[the petitioner] continues to suffer from a mental disease or

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defect[.]" Id. at 127. In the petitioner's case, there was no evi-
dence of his disease being symptomatic in the eight months
before the hearing. On the other hand, the petitioner's men-
tal illness historically had gone through periods of being
symptomatic, followed by periods of being in remission. On
that record, this court concluded, the PSRB reasonably could
find that the petitioner's underlying mental condition "per-
sists," even though the only expert who testified to the peti-
tioner's mental condition as of the time of the hearing stated
that the petitioner no longer had a mental disease. Id. That
was so because the evidence of the petitioner's history was
not "so remote that a reasonable person could not, as a mat-
ter of law, give that evidence substantial weight." Id. at 128.
Consequently, the PSRB's order was supported by substan-
tial evidence.

Einstein is instructive here. The question, given our
standard of review, is whether, as a matter of law, a reason-
able person could not give petitioners' criminal histories sub-
stantial weight, because of the age of the past charges and
convictions, or because several of the charges went unadju-
dicated. We cannot so conclude in either of these cases.

Criminal history, even of arrests and unadjudicated
charges, certainly is relevant in attempting to assess the
nature and kind of risks that particular offenders pose for the
future. That is true as a matter of logic and human experi-
ence, and it is reflected in the fact that the legislature has
specifically authorized the board to consider an offender's
presentence report and "any other information relevant" to
the offender's safe reintegration into the community. ORS
144.098(1)(d). In Roberts's case, the board relied on the infor-
mation contained in his presentence report-i.e., Roberts's
history of past sexual offense charges and arrests, and his
prior conviction for a sexual offense involving a minor victim.
That history is not something we presume to be characteris-
tic of all or even most offenders whose current crimes of con-
viction involve, as in Roberts's case, only assault and weap-
ons convictions. Based on that history, a reasonable person
could find that Roberts is at risk of committing sexual
offenses in the future. The fact that a reasonable person could
also draw a contrary inference, or that reasonable persons

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might differ in their assessment of the strength of the infer-
ence or the degree of the risk, does not mean that the board's
implicit finding in that regard is not supported by substantial
evidence. The board therefore was entitled to impose the
challenged sex offender special conditions as necessary to
further the public's safety and Roberts's reintegration into
the community.

The facts in Weems's case present a different and
arguably closer issue, because Weems has no previous con-
viction of a sexual offense. His criminal history includes past
sexual offense charges that eventually were dismissed for
reasons that the record does not disclose. The set of charges
for sexual abuse in the first and second degrees resulted in a
conviction, but the conviction was for the lesser-included
offense of menacing. The absence of a known prior conviction
for a sexual offense in Weems's case weakens-at least, to
some degree-the possible inference that he is at risk of com-
mitting a sexual offense in the future.

It does not, however, weaken that inference so much
that, as a matter of law, a reasonable person would be unable
to draw it. In that regard, it is important to describe what the
board had before it. Weems's past charges and conviction for
menacing were documented through a formal sexual offender
risk assessment that DOC performed in 2004, a few months
before Weems's release. That assessment was made using a
standardized predictive test scale (the "STATIC-99") that the
DOC has approved to assess whether someone, upon release
from incarceration, should be designated a predatory sex
offender.11 For the board to make that designation, an
offender's criminal history must include at least one qualify-
ing past sexual offense conviction.12 In addition, at the time of

11 ORS 181.585(2) requires the board and other agencies charged with deter-
mining whether a person is a predatory sex offender to use a sex offender risk
assessment scale approved by the DOC. As of 2004, when Weems's release plan
was prepared, the DOC had approved, and the board by rule had endorsed the use
of, the STATIC-99 test, which was a scoring sheet accompanied by a lengthy set of
"definitions" that served to provide guidance on how the assessment is to be per-
formed. See OAR 255-060-0011 (2005) (effective June 14, 2004); Exh Q-1 (STATIC-
99 scoring worksheet); and Exh Q-2 (definitions for STATIC-99).

12 To be designated a "predatory sexual offender" by the board, an offender
must have been convicted of any degree of rape, sodomy, sexual abuse, or unlawful
penetration. OAR 255-060-0011(1) (2005) (effective June 14, 2004).

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Weems's evaluation, the offender had to score a certain level
on the STATIC-99, which takes into account such factors as
the offender's age, prior sexual offenses, prior nonsexual
offenses, the characteristics of the victims of those prior
offenses, and whether violence was involved in the offenses.
OAR 255-060-0011 (2005), Exh Q-3 (effective June 14, 2004).
At the time of Weems's assessment, the board would desig-
nate an offender with a qualifying past conviction to be a
predatory sex offender if that offender received a score of four
or more points on the assessment.13

Weems's sex offender risk assessment did not result
in his designation as a predatory sex offender, because he
had no known qualifying past sexual offense conviction. But
for that fact, however, Weems would have qualified for that
designation. Weems received a STATIC-99 score of 4, which
put him into a "medium-high" risk category.14 That score was
based on the facts that Weems had two prior charges for sex-
ual offenses, four or more prior sentencing dates (excluding
the sentencing date for the crimes of conviction), an unre-
lated victim, and a male victim.15 The STATIC-99 predictive
test considers prior charges and arrests for sexual offenses to
be significant in assessing the risk that someone will commit
a future offense; it is not limited to convictions.16 Thus, the

13 OAR 255-060-0011(3) (2005) (effective June 14, 2004) specified the scoring
levels that would result in a predatory sex offender designation as of 2004. Since
Weems's evaluation and release, the board has modified its rules and now requires
a higher score of six or greater on starred items. OAR 255-060-0011(3). The board
also has authority to look beyond the score on the sexual offender risk assessment
and to consider "any other evidence that the inmate or the offender exhibits char-
acteristics showing a tendency to victimize or injure others." OAR 255-060-0011(1).

14 The worksheet that reveals Weems's score does not explain what risk cate-
gory the various scores fall into. That information is provided in Exhibit Q-1, the
standard STATIC-99 scoring worksheet that the board has adopted by rule. On the
bottom of that exhibit is a grid for translating the scores into risk categories. A
score of 0-1 is "low," 2-3 is "medium-low," 4-5 is "medium-high," and 6 is "high." See
OAR 255-060-0011, Exh Q-1 (2005) (effective June 14, 2004) (STATIC-99 scoring
worksheet).

15 The unrelated male victim that contributed to Weems's STATIC-99 score
was the 9- or 10-year-old son of a friend-i.e., the victim involved in Weems's 1991
sodomy charges. Weems admitted that information himself during his sex offender
assessment.

16 See OAR 255-060-0011, Exh Q-2 at 13 (2005) (effective June 14, 2004) ("To be
considered a sexual offence [sic] the sexual misbehaviour [sic] must result in some
form of criminal justice intervention or official sanction."); id. (sexual offenses may
be scored only from official records, not self-reporting of an offender); id. at 16

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past sexual offense charges and the conviction for menacing
that the board relied on, which were before the board as part
of Weems's sex offender assessment, had resulted in a signif-
icant risk score. Given the record before the board, a reason-
able person-and, therefore, the board-could conclude that
sex offender special conditions were appropriate in Weems's
case to promote public safety and assist in his reformation.

Petitioners point to one further aspect of the board's
orders to argue that, on the records before it, the board erred
in imposing the special conditions. Relying on the "per parole
officer" notation that followed each condition, each petitioner
argues:

"[I]f sex offender conditions were reasonably related to the
statute's twin goals [of public safety and offender reforma-
tion], then the record would readily so reflect and the board
would not hesitate to impose that condition. Instead, the
board could not determine from this record whether the
sexual offender treatment was necessary for petitioner's
reformation, or whether prohibiting petitioner from having
contact with minors and excluding him from places where
they gather was necessary for the protection of the public;
consequently, the board delegated that decision to peti-
tioner's supervising officer."

Petitioners' argument relies on a false-or, at least,
overstated-premise. The board did not decline or, for that
matter, "hesitate," to impose the sex offender special condi-
tions and opt instead to delegate the decision to petitioner's
supervising officer. Rather, after reciting petitioner's history
in each case, the board expressly, and unequivocally, stated:
"It was these individual circumstances that led the board to
determine that it was necessary to impose the contested spe-
cial conditions in [petitioner's] case." (Emphasis added.) In
Weems's case, the board further explained that it "took into
consideration the age of the offenses when it imposed the spe-
cial conditions to be implemented at the discretion of your
supervising officer." (Emphasis added.)

("Simple questioning by police not leading to an arrest or charge is insufficient to
count as a sexual offence [sic]."); id. at 28 (arrests and charges on nonsexual
offenses are not scored).

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Expressly, then, the board imposed the special con-
ditions. The board, however, left it to the supervising officers
in the field to determine, as a matter of discretion, whether to
implement the special conditions. The board did not expand,
in either order, on the responsibility of the supervising offi-
cers to determine, once petitioners were being actively super-
vised, whether to implement the conditions or how the board
would expect that to be done (e.g., by an evaluative process
involving treatment or a polygraph examination, which itself
would entail actual implementation of the conditions). The
board might have provided a further explanation, had either
petitioner in these cases raised a concern to the board about
that aspect of the board's order. But neither petitioner did. In
both cases, petitioners challenged the special conditions only
on the ground that the board lacked authority to impose
them in the case of an offender who was not on supervision
for a sexual offense and who claimed, as Weems did, never to
have committed a sexual offense.17

Given the particular posture of these cases, and the
lack of a preserved objection to that aspect of the board's
order, we decline to further consider petitioners' arguments
in those regards. The board has not had the opportunity to
explain the scope of a supervising officer's authority to not
implement a condition of this kind, once it has been imposed
by the board. See ORS 144.104(2) (supervising officer has
authority to adjust level of supervision for a person on post-
prison release). Moreover, the issue that petitioners raise in
this regard may be purely academic in these cases. We have
determined that substantial evidence supported imposition
of the special conditions in petitioners' cases. That is enough
to resolve these cases. Beyond that, any issue about the
board's authority to delegate to the supervising officers the
authority to adjust the conditions would appear to be moot,

17 Petitioner Weems argues that he did challenge the authority of his supervis-
ing officer to impose the special conditions. We have reviewed his submission to the
board, and we disagree. He claimed in it that his supervising officer had imposed
new conditions on him that the board had not authorized, and in particular had
prevented him from living or being intimate with his adult girlfriend. We find noth-
ing in his challenge that would have fairly alerted the board to the fact that he was
objecting to the supervising officer's ability to not implement the sex offender spe-
cial conditions if that officer determined them not to be necessary.

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because petitioners are no longer on post-prison supervi-
sion.18 For those reasons, we do not consider petitioners'
arguments about the "per parole officer" notation in the
boards' orders.19

The decisions of the Court of Appeals are affirmed.

18 As we noted in footnote 7, the sex offender special conditions requiring peti-
tioners to submit to polygraphs and to participate in sex offender treatment are not
moot, because the state is seeking reimbursement from petitioners for the costs of
those conditions. The fact that the state seeks such reimbursement-which peti-
tioners assert and the state does not dispute-suggests that the special conditions
were imposed in petitioners' cases and that the supervising officers did not exercise
whatever authority the board delegated to them to not implement them.

19 Petitioners also make an additional, and somewhat different, argument
that the board's orders exceeded the board's lawful authority by giving too much
"decision-making power" to the supervising officers. For the same reasons, we
decline to consider that argument. Also, petitioners advance an extensive argu-
ment that the board's imposition of the challenged special conditions in these cases
violated federal due process principles. That argument is raised and developed for
the first time to this court. We therefore do not consider it, either.