In 1969, Neil Armstrong faced unknown risks as he embarked on the Apollo 11 mission, prompting William Safire to prepare the somber “In Event of Moon Disaster” speech. What is Armstrong’s risk of dying on that mission today, in 2025? The mission succeeded, and decades have passed. Armstrong passed away peacefully on Earth in 2012, rendering his current risk of lunar death precisely zero. Purchasing insurance against this “risk” now would be laughably cheap—unless the insurer absurdly relied on 1969 data to assess Armstrong’s risk today. Yet, this is precisely the type of actuarial miscalculation that Oregon’s Senate Bill 1122 (SB 1122) mandates by law in the sex offender registry context. The new law anchors risk assessments to the date an offender was released—sometimes decades ago—ignoring their actual danger to the public today (or lack thereof).

SB 1122, passed on May 15, 2025, prioritizes the appearance of being tough on crime over fiscal responsibility and basic common sense. In order to simplify the classification, any classification, of registrants with very old convictions, it codifies the use of outdated Static-99R scores, essentially snapshot of the distant past, leading to inflated risk designation that impose lifelong burdens without due process. This blog post explains how this happened and outlines why SB 1122 opens the door for robust legal challenges.

OREGON’S SEX OFFENDER RISK ASSESSMENT: A VERY SHORT HISTORY

A. AN ATTEMPT AT EVIDENCE-BASED REFORM

Oregon has struggled to assess sex offender risk for over a decade. In 2013, the legislature enacted ORS 163A.100, establishing a three-tier system to classify registrants based on their current risk of reoffending:

• Level One: Lowest risk, requiring limited notification.
• Level Two: Moderate risk, requiring moderate notification.
• Level Three: Highest risk, requiring the widest notification.

The 2013 reforms aimed to streamline Oregon’s bloated registry—the largest per capita in the U.S.—by focusing resources on only the highest-risk individuals. However, the law’s unfunded mandate to classify nearly 20,000 existing registrants left the the administrative agency tasked with the job — the Oregon Board of Parole and Post-Prison Supervision — scrambling to develop a workable plan. With insufficient resources, how could it assess so many people?

B. FAKE SCIENCE, REAL CONSEQUENCES: THE BOARD’S DECISION TO MISUSE THE STATIC-99R

The Board’s solution was to use the Static-99R, an 10 question actuarial worksheet it already knew how to use, and apply it to male sex offenders whose convictions were years or even decades old. The problem? The Static-99R, used alone, is only scientifically valid for assessing short-term risk. As the Court explained in Sohappy v. Board of Parole: “The [Static-99R] score only remained valid for two years after [the date of first opportunity to offend]” (329 OR. APP. 28, 48, 2023). Relying on historical Static-99R scores to gauge present dangerousness after multiple decades is akin to using a $20 blood pressure cuff to screen for cancer. The cuff may provide a quick, numerical result that appears scientific, but it’s irrelevant for detecting tumors.

To even somewhat approximate a person’s current risk of re-offense, dynamic factors must be considered. Desistance from criminal activity is the most obviously relevant dynamic factors. Research shows that “the longer the person stays sex offense free, the lower their risk.” A registrant scored as “high risk” (Level III) at release in 1995, who has since lived 30 years without committing new crimes, has a stable marriage and a stable job, poses the same actuarial risk as a person with a non sex related criminal history, like a decades old DUI. But the Board was not considering any dynamic factors.

C. A BELATED COURT OF APPEALS SMACKDOWN

In Thomsen v. Board of Parole, 333 Or. App. 703 (2024), a case litigated by our firm, the Oregon Court of Appeals ruled the Boards “shortcut” was illegal, affirming that State law clearly required assessing “the risk of reoffending at the time of the assessment,” not outdated snapshots. The court’s decision, grounded in the law’s plain language, invited Oregon to adopt a more rational, evidence-based risk assessment system. The legislature went in the exact opposite direction.

SB 1122: A DEFINITIVE REJECTION OF EVIDENCE-BASED RISK ASSESSMENTS

SB 1122 rejects all available evidence of who actually poses a risk to the public and, in fact, explicitly overrides the idea that risk assessments should assess present-day  risk at all. The law amends ORS 163A.100 to state:

The methodology may consider exclusively the risk the sex offender presented at the time the sex offender was released from custody, sentenced**, OR** otherwise discharged… Application of the risk assessment methodology to a sex offender must result in placing the sex offender in one of the following levels:

• A level one sex offender who presents, or presented at the time of release, sentencing**, OR** discharge, the lowest risk of reoffending…
• A level two sex offender who presents, or presented at the time of release, sentencing**, OR** discharge, a moderate risk of reoffending…
• A level three sex offender who presents, or presented at the time of release, sentencing**, OR** discharge, the highest risk of reoffending…

Initially, even the Oregon District Attorneys Association (ODAA) opposed the change, arguing it ignored important risk-relevant information. Why, then, did the legislature pass this retreat to inaccurate assessments? The Board’s brief in Allen v. Board of Parole (A179800, 2023), another case our firm recently litigated, identifies one possible motive: “Using the Static-99R… saves the BOARD considerable resources in performing initial classifications” (Respondent’s Brief, p. 10). Accounting for desistance would “burden its resources by forcing it to adopt a… case-by-case evaluation” (p. 11). The bill’s Fiscal Impact Statements echo these arguments. Issuing inaccurate assessments does not actually save tax payer money, however. It simply shifts costs to the taxpayer by mandating costly, pointless lifetimes supervision of thousands of harmless individuals.

As my partner Ben Sammons argues in his forthcoming law-review article, perhaps cost-cutting is not the main goal. He makes the case that more likely, SB 1122’s true purpose is resurrecting Oregon’s “predatory offender” designation. Because that designation triggered such severe notifications (media alerts, flyers, and neighbor warnings), Noble v. Board of Parole, 327 Or. 485 (1998) mandated due process hearings before the government could classify someone as “predator.” Similarly, in V.L.Y. v. Board of Parole, 338 Or. 44 (2005), the Court required predatory offender assessments to reflect “present condition.” The Board’s “designation of anyone as a predatory sex offender,” the Court explained, “in order to be statutorily valid, MUST speak to that person’s present condition” (338 Or. at 50). Thanks to SB 1122, however, Level III now explicitly imposes greater burdens on level III offenders than predatory designations ever did—most notably, online publication—without providing constitutionally required safeguards.

KICKING OPEN THE DOOR FOR NEW CHALLENGES TO OREGON’S UNCONSTITUTIONAL SEX OFFENDER REGISTRY

SB 1122 is a constitutional disaster waiting to be challenged. Courts elsewhere have struck down similar “super-registration” laws for their cumulative punitive effects, finding they resemble historical punishments like banishment, shaming, and lifelong probation. The law’s dubious “emergency” declaration and supposed retroactivity raises additional ex post facto concerns, as it effectively increases punishment after conviction. People assume challenging registration as a form of punishment is a waste of time, but it’s been more than 20 years since the Supreme Court ruled in Smith v. Doe, 538 U.S. 84 (2003) that registration was not punitive, and the world has unquestionably changed. SB 1122’s online implications alone cross the line into punishment, warranting reexamination. Moreover, SB 1122’s procedural flaws are glaring. By bypassing hearings and relying on a misapplied Static-99R, it denies registrants basic procedural due process.

Advocacy groups that fought Measure 11’s mandatory minimums and championed juvenile justice reforms like SB 1008 have ignored this issue completely. Their silence on SB 1122 underscores the need for individual attorneys to step up. Every defense lawyer representing a defendant at sentencing for a sex crime should at least consider asserting a right to an evidentiary hearing on the necessity of registration. And if you have a client, friend, or family member recently designated as a Level III offender, contact our office today. We happily offer consultations to attorneys statewide and pro bono representation for eligible registrants.