We begin by acknowledging the obvious: Smith’s history of violent deviant sexual behavior is such that the Board’s designation as a VSP may well be warranted. The important question presented by this appeal, however, is not whether he deserves that label. Rather, the question that is the focal point of this Court’s inquiry is whether the State of Idaho has labeled Smith as a VSP in a fashion that comports with his constitu- tional right to due process....
A. The statutory framework for VSP designation in Idaho presents significant constitutional shortcomings.
1. The Statutory Framework
Designation as a VSP is based on the provisions of Idaho’s Sexual Offender Registration Notification and Community Right to Know Act (the Act or SOR Act)..... Only offenders convicted of certain specified crimes are eligible for designation as VSPs.... The Board is charged with the duty of considering for VSP designation those inmates scheduled for release who have been referred by the department of correction or the parole commission.... Smith was such an inmate.... A VSP designation is based upon the Board’s determination that the offender continues to “pose a high risk of committing an offense or engaging in predatory sexual conduct.”.... The Board’s rules provide that “[a] sexual offender shall be designated as a VSP if his risk of re-offending sexually or threat of violence is of suffi- cient concern to warrant the designation for the safety of the community.”... In reaching this decision, the Board is required to “assess how biological, psycho- logical, and situational factors may cause or contribute
to the offender’s sexual behavior.... Once the Board determines whether to designate the offender as a VSP, it must make written findings that include a risk assessment of the offender, the reasons upon which the risk assessment is based, the Board’s determination whether the offender should be designated, and the reasons upon which the determination is based....
Apart from submitting to a mandatory... psycho- sexual evaluation...the offender has no opportunity to provide input to the Board. “The Board and the evaluator conducting the psychosexual evaluation may have access to and may review all obtainable records on the sexual offender to conduct the VSP designation assessment.” ...The offender is not given notice of the information being considered by the Board, much less an opportunity to be heard as to the reliability of that information. If the Board determines that the offender is to be designated as a VSP, the offender is notified of the Board’s decision by way of a copy of the Board’s written findings....
If the Board makes a VSP designation, the offender has 14 days from receipt of the notice to seek judicial review... An offender designated a VSP is only entitled to challenge the designation on two grounds:
(a) The offender may introduce evidence that the calculation that led to the designation as a violent sexual predator was incorrectly performed either because of a factual error, because the offender dis- putes a prior offense, because the variable factors were improperly determined, or for similar reasons; ... and (b) The offender may introduce evidence at the hearing that the designation as a violent sexual pred- ator does not properly encapsulate the specific case, i.e., the offender may maintain that the case falls out- side the typical case of this kind and, therefore, that the offender should not be designated as a violent sexual predator....
The scope of judicial review is limited to “a sum- mary, in camera review proceeding, in which the court decides only whether to affirm or reverse the board’s designation of the offender as a violent sexual predator.”... Thus, the Act contemplates that judicial review will ordinarily occur without the offender hav- ing the opportunity to address the basis of the Board’s decision. The Act does provide that “[w]here the proof, whether in the form of reliable hearsay, affidavits, or offers of live testimony, creates a genuine issue of material fact as to whether the offender is a violent sexual predator, the court should convene a fact- finding hearing and permit live testimony.”... At the hearing, the State bears the burden of presenting a prima facie case justifying the Board’s designation.... Despite this threshold burden of production, the offender ultimately bears the burden of proof... [The statute] provides that “[t]he court shall affirm the board’s determination unless persuaded by a prepon- derance of the evidence that it does not conform to the law or the guidelines.”
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