State v. Eric L. Loomis , 371 Wis. 2d 235 ( 2016 )

2016 WI 68
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP157-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Eric L. Loomis,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 13, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 5, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: La Crosse
JUDGE: Scott L. Horne
JUSTICES:
CONCURRED: ROGGENSACK, C. J. concurs (Opinion filed).
ABRAHAMSON, J. concurs (Opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs by Michael
D. Rosenberg and Community Justice, Inc., Madison, and oral
argument by Michael D. Rosenberg.
For the plaintiff-respondent, the cause was argued by
Christine A. Remington, assistant attorney general, with whom on
the brief was Brad D. Schimel, attorney general.
2016 WI 68
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP157-CR
(L.C. No. 2012CF75 & 2013CF98)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JUL 13, 2016
Eric L. Loomis,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
APPEAL from an order of the circuit court. Affirmed.
¶1 ANN WALSH BRADLEY, J. In 2007, the Conference of
Chief Justices adopted a resolution entitled "In Support of
Sentencing Practices that Promote Public Safety and Reduce
Recidivism."1 It emphasized that the judiciary "has a vital role
to play in ensuring that criminal justice systems work
1
Conference of Chief Justices, Conference of State Court
Administrators, National Center for State Courts, Resolution 12:
In Support of Sentencing Practices that Promote Public Safety
and Reduce Recidivism (August 1, 2007),
http://ncsc.contentdm.oclc.org/cdm/ref/collection/ctcomm/id/139.
No. 2015AP157-CR
effectively and efficiently to protect the public by reducing
recidivism and holding offenders accountable."2 The conference
committed to "support state efforts to adopt sentencing and
corrections policies and programs based on the best research
evidence of practices shown to be effective in reducing
recidivism."3
¶2 Likewise, the American Bar Association has urged
states to adopt risk assessment tools in an effort to reduce
recidivism and increase public safety.4 It emphasized concerns
relating to the incarceration of low-risk individuals,
cautioning that the placement of low-risk offenders with medium
and high-risk offenders may increase rather than decrease the
risk of recidivism.5 Such exposure can lead to negative
influences from higher risk offenders and actually be
detrimental to the individual's efforts at rehabilitation.6
¶3 Initially risk assessment tools were used only by
probation and parole departments to help determine the best
2
Id.
3
Id.
4
American Bar Association, Criminal Justice Section, State
Policy Implementation Project, 18,
http://www.americanbar.org/content/dam/aba/administrative/crimin
al_justice/spip_handouts.authcheckdam.pdf.
5
Id. at 19.
6
Id.
2
No. 2015AP157-CR
supervision and treatment strategies for offenders.7 With
nationwide focus on the need to reduce recidivism and the
importance of evidence-based practices, the use of such tools
has now expanded to sentencing.8 Yet, the use of these tools at
sentencing is more complex because the sentencing decision has
multiple purposes, only some of which are related to recidivism
reduction.9
¶4 When analyzing the use of evidence-based risk
assessment tools at sentencing, it is important to consider that
tools such as COMPAS continue to change and evolve.10 The
concerns we address today may very well be alleviated in the
future. It is incumbent upon the criminal justice system to
recognize that in the coming months and years, additional
research data will become available. Different and better tools
7
Pamela M. Casey et al., National Center for State Courts
(NCSC), Using Offender Risk and Needs Assessment Information at
Sentencing: Guidance for Courts from a National Working Group,
at 1 (2011), http://www.ncsc.org/~/media/Microsites/Files/CSI/
RNA%20Guide%20Final.ashx.
8
See, e.g., National Center for State Courts (NCSC),
Conference of Chief Justices and Conference of State Court
Administrators, Resolution 7: In Support of the Guiding
Principles on Using Risk and Needs Assessment Information in the
Sentencing Process (2011),
http://www.ncsc.org/~/media/Microsites/Files/CSI/Resolution-
7.ashx.
9
Casey, Using Offender Risk and Needs Assessment
Information at Sentencing, supra note 7, at 1.
10
"COMPAS" stands for "Correctional Offender Management
Profiling for Alternative Sanctions."
3
No. 2015AP157-CR
may be developed. As data changes, our use of evidence-based
tools will have to change as well. The justice system must keep
up with the research and continuously assess the use of these
tools.
¶5 Use of a particular evidence-based risk assessment
tool at sentencing is the heart of the issue we address today.
This case is before the court on certification from the court of
appeals.11 Petitioner, Eric L. Loomis, appeals the circuit
court's denial of his post-conviction motion requesting a
resentencing hearing.
¶6 The court of appeals certified the specific question
of whether the use of a COMPAS risk assessment at sentencing
"violates a defendant's right to due process, either because the
proprietary nature of COMPAS prevents defendants from
challenging the COMPAS assessment's scientific validity, or
because COMPAS assessments take gender into account."12
¶7 Loomis asserts that the circuit court's consideration
of a COMPAS risk assessment at sentencing violates a defendant's
right to due process. Additionally he contends that the circuit
11
Pursuant to Wis. Stat. § (Rule) 809.61 (2013-14), the
court of appeals certified an appeal of an order of the Circuit
Court for La Crosse County, Scott Horne J., presiding.
12
We are also asked to review whether the court of appeals'
decision in State v. Samsa, 2015 WI App 6, 359 Wis. 2d 580, 859
N.W.2d 149, must be modified or overruled if this court
determines that the right to due process prohibits consideration
of COMPAS risk assessments at sentencing. For the reasons set
forth below, we have not so determined and thus need not address
this issue.
4
No. 2015AP157-CR
court erroneously exercised its discretion by assuming that the
factual bases for the read-in charges were true.
¶8 Ultimately, we conclude that if used properly,
observing the limitations and cautions set forth herein, a
circuit court's consideration of a COMPAS risk assessment at
sentencing does not violate a defendant's right to due process.
¶9 We determine that because the circuit court explained
that its consideration of the COMPAS risk scores was supported
by other independent factors, its use was not determinative in
deciding whether Loomis could be supervised safely and
effectively in the community. Therefore, the circuit court did
not erroneously exercise its discretion. We further conclude
that the circuit court's consideration of the read-in charges
was not an erroneous exercise of discretion because it employed
recognized legal standards.
¶10 Accordingly, we affirm the order of the circuit court
denying Loomis's motion for post-conviction relief requesting a
resentencing hearing.
I
¶11 The facts of this case are not in dispute. The State
contends that Loomis was the driver in a drive-by shooting. It
charged him with five counts, all as a repeater: (1) First-
degree recklessly endangering safety (PTAC); (2) Attempting to
flee or elude a traffic officer (PTAC); (3) Operating a motor
vehicle without the owner's consent; (4) Possession of a firearm
5
No. 2015AP157-CR
by a felon (PTAC); (5) Possession of a short-barreled shotgun or
rifle (PTAC).13
¶12 Loomis denies involvement in the drive-by shooting.
He waived his right to trial and entered a guilty plea to only
two of the less severe charges, attempting to flee a traffic
officer and operating a motor vehicle without the owner's
consent. The plea agreement stated that the other counts would
be dismissed but read in:
The other counts will be dismissed and read in for
sentencing, although the defendant denies he had any
role in the shooting, and only drove the car after the
shooting occurred. The State believes he was the
driver of the car when the shooting happened.
The State will leave any appropriate sentence to the
Court's discretion, but will argue aggravating and
mitigating factors.
After accepting Loomis's plea, the circuit court ordered a
presentence investigation. The Presentence Investigation Report
("PSI") included an attached COMPAS risk assessment.
¶13 COMPAS is a risk-need assessment tool designed by
Northpointe, Inc. to provide decisional support for the
Department of Corrections when making placement decisions,
managing offenders, and planning treatment.14 The COMPAS risk
13
"PTAC" refers to party to a crime.
14
Northpointe, Inc., Practitioner's Guide to COMPAS Core,
at 1 (Mar. 19, 2015),
http://www.northpointeinc.com/files/technical_
documents/Practitioners-Guide-COMPAS-Core-_031915.pdf.
6
No. 2015AP157-CR
assessment is based upon information gathered from the
defendant's criminal file and an interview with the defendant.
¶14 A COMPAS report consists of a risk assessment designed
to predict recidivism and a separate needs assessment for
identifying program needs in areas such as employment, housing
and substance abuse.15 The risk assessment portion of COMPAS
generates risk scores displayed in the form of a bar chart, with
three bars that represent pretrial recidivism risk, general
recidivism risk, and violent recidivism risk.16 Each bar
indicates a defendant's level of risk on a scale of one to ten.17
¶15 As the PSI explains, risk scores are intended to
predict the general likelihood that those with a similar history
of offending are either less likely or more likely to commit
another crime following release from custody. However, the
COMPAS risk assessment does not predict the specific likelihood
that an individual offender will reoffend. Instead, it provides
a prediction based on a comparison of information about the
individual to a similar data group.
¶16 Loomis's COMPAS risk scores indicated that he
presented a high risk of recidivism on all three bar charts.
His PSI included a description of how the COMPAS risk assessment
should be used and cautioned against its misuse, instructing
15
Id. at 12, 16.
16
Id. at 3, 26.
17
Id. at 8.
7
No. 2015AP157-CR
that it is to be used to identify offenders who could benefit
from interventions and to target risk factors that should be
addressed during supervision.
¶17 The PSI also cautions that a COMPAS risk assessment
should not be used to determine the severity of a sentence or
whether an offender is incarcerated:
For purposes of Evidence Based Sentencing, actuarial
assessment tools are especially relevant to: 1.
Identify offenders who should be targeted for
interventions. 2. Identify dynamic risk factors to
target with conditions of supervision. 3. It is very
important to remember that risk scores are not
intended to determine the severity of the sentence or
whether an offender is incarcerated.
(Emphasis added.)
¶18 At sentencing, the State argued that the circuit court
should use the COMPAS report when determining an appropriate
sentence:
In addition, the COMPAS report that was completed in
this case does show the high risk and the high needs
of the defendant. There's a high risk of violence,
high risk of recidivism, high pre-trial risk; and so
all of these are factors in determining the
appropriate sentence.
¶19 Ultimately, the circuit court referenced the COMPAS
risk score along with other sentencing factors in ruling out
probation:
You're identified, through the COMPAS assessment, as
an individual who is at high risk to the community.
In terms of weighing the various factors, I'm ruling
out probation because of the seriousness of the crime
and because your history, your history on supervision,
8
No. 2015AP157-CR
and the risk assessment tools that have been utilized,
suggest that you're extremely high risk to re-offend.
¶20 In addition to the COMPAS assessment, the circuit
court considered the read-in charges at sentencing. For
sentencing purposes, it assumed that the factual bases for the
read-in charges were true and that Loomis was at least involved
in conduct underlying the read-in charges. The circuit court
explained further that Loomis "needs to understand that if these
shooting related charges are being read in that I'm going to
view that as a serious, aggravating factor at sentencing."
Defense counsel protested the circuit court's assumption that
the read-in charges were true and explained that Loomis did not
concede that he was involved in the drive-by shooting.
¶21 Although a review of the transcript of the plea
hearing reveals miscommunications and uncertainty about the
consequences of a dismissed but read-in offense, the circuit
court ultimately quoted directly from a then-recent decision of
this court explaining the nature of such a read-in offense. It
explained to Loomis that a circuit court can consider the read-
in offense at sentencing and that such consideration could
increase a defendant’s sentence:
The Court: Mr. Loomis, I just——there is a recent
Supreme Court decision in State v. Frey that describes
what a read-in offense is. And I just want to quote
from that decision so that you fully understand
it. . . .
"[T]he defendant exposes himself to the likelihood of
a higher sentence within the sentencing range and the
additional possibility of restitution for the offenses
that are 'read in.'"
9
No. 2015AP157-CR
So you're limited in this agreement to a sentencing
range within——up to the maximums for the charges that
you're pleading guilty. You're agreeing, as the
Supreme Court decision indicates, that the charges can
be read in and considered, and that has the effect of
increasing the likelihood, the likelihood of a higher
sentence within the sentencing range. You understand
that?
Loomis: Yes.
¶22 The plea questionnaire/waiver of rights form stated
that the maximum penalty Loomis faced for both charges was
seventeen years and six months imprisonment. The court
sentenced him within the maximum on the two charges for which he
entered a plea.18
¶23 Loomis filed a motion for post-conviction relief
requesting a new sentencing hearing. He argued that the circuit
court's consideration of the COMPAS risk assessment at
sentencing violated his due process rights. Loomis further
asserted that the circuit court erroneously exercised its
discretion by improperly assuming that the factual bases for the
read-in charges were true.
¶24 The circuit court held two hearings on the post-
conviction motion. At the first hearing, the circuit court
addressed Loomis's claim that it had erroneously exercised its
18
On the attempting to flee an officer charge, the circuit
court sentenced Loomis to four years, with initial confinement
of two years and extended supervision of two years. For
operating a vehicle without the owner's consent, the circuit
court sentenced Loomis to seven years, with four years of
initial confinement and three years of extended supervision, to
be served consecutively with the prior sentence.
10
No. 2015AP157-CR
discretion in how it considered the read-in charges.
Considering the relevant case law and legal standards, the
circuit court concluded that it had applied the proper standard
and denied Loomis's motion on that issue.
¶25 During the first post-conviction motion hearing, the
circuit court reviewed the plea hearing transcript and the
sentencing transcript and explained that it did not believe
Loomis's explanation:
I felt Mr. Loomis's explanation was inconsistent with
the facts. The State's version was more consistent
with the facts and gave greater weight to the State's
version at sentencing.
¶26 At the second hearing, the circuit court addressed the
due process issues. The defendant offered the testimony of an
expert witness, Dr. David Thompson, regarding the use at
sentencing of a COMPAS risk assessment. Dr. Thompson opined
that a COMPAS risk assessment should not be used for decisions
regarding incarceration because a COMPAS risk assessment was not
designed for such use. According to Dr. Thompson, a circuit
court's consideration at sentencing of the risk assessment
portions of COMPAS runs a "tremendous risk of over estimating an
individual's risk and . . . mistakenly sentencing them or basing
their sentence on factors that may not apply . . . ."
¶27 Dr. Thompson further testified that sentencing courts
have very little information about how a COMPAS assessment
analyzes the risk:
The Court does not know how the COMPAS compares that
individual's history with the population that it's
comparing them with. The Court doesn't even know
11
No. 2015AP157-CR
whether that population is a Wisconsin population, a
New York population, a California
population. . . . There's all kinds of information
that the court doesn't have, and what we're doing is
we're mis-informing the court when we put these graphs
in front of them and let them use it for sentence.
¶28 In denying the post-conviction motion, the circuit
court explained that it used the COMPAS risk assessment to
corroborate its findings and that it would have imposed the same
sentence regardless of whether it considered the COMPAS risk
scores. Loomis appealed and the court of appeals certified the
appeal to this court.
II
¶29 Whether the circuit court's consideration of a COMPAS
risk assessment violated Loomis's constitutional right to due
process presents a question of law, which this court reviews
independently of the determinations of a circuit court or a
court of appeals. See Jackson v. Buchler, 2010 WI 135, ¶39, 330
Wis. 2d 279, 793 N.W.2d 826.
¶30 "This court reviews sentencing decisions under the
erroneous exercise of discretion standard." State v. Frey, 2012
WI 99, ¶37, 343 Wis. 2d 358, 817 N.W.2d 436. An erroneous
exercise of discretion occurs when a circuit court imposes a
sentence "without the underpinnings of an explained judicial
reasoning process." McCleary v. State, 49 Wis. 2d 263, 278, 182
N.W.2d 512 (1971); see also State v. Gallion, 2004 WI 42, ¶3,
270 Wis. 2d 535, 678 N.W.2d 197.
¶31 Additionally, a sentencing court erroneously exercises
its discretion when its sentencing decision is not based on the
12
No. 2015AP157-CR
facts in the record or it misapplies the applicable law. State
v. Travis, 2013 WI 38, ¶16, 347 Wis. 2d 142, 832 N.W.2d 491. It
misapplies the law when it relies on clearly irrelevant or
improper factors. McCleary, 49 Wis. 2d at 278. The defendant
bears the burden of proving such reliance by clear and
convincing evidence. State v. Harris, 2010 WI 79, ¶3, 326
Wis. 2d 685, 786 N.W.2d 409.
¶32 In a similar manner we review the issue of whether a
circuit court erroneously exercises its discretion when it
relies on the factual basis of the read-in charge when
fashioning the defendant's sentence. Frey, 343 Wis. 2d 358,
¶¶37-39. "A discretionary sentencing decision will be sustained
if it is based upon the facts in the record and relies on the
appropriate and applicable law." Travis, 347 Wis. 2d 142, ¶16.
III
¶33 At the outset we observe that the defendant is not
challenging the use of a COMPAS risk assessment for decisions
other than sentencing, and he is not challenging the use of the
needs portion of the COMPAS report at sentencing. Instead,
Loomis challenges only the use of the risk assessment portion of
the COMPAS report at sentencing.
¶34 Specifically, Loomis asserts that the circuit court's
use of a COMPAS risk assessment at sentencing violates a
defendant's right to due process for three reasons: (1) it
violates a defendant's right to be sentenced based upon accurate
information, in part because the proprietary nature of COMPAS
prevents him from assessing its accuracy; (2) it violates a
13
No. 2015AP157-CR
defendant's right to an individualized sentence; and (3) it
improperly uses gendered assessments in sentencing.
¶35 Although we ultimately conclude that a COMPAS risk
assessment can be used at sentencing, we do so by circumscribing
its use. Importantly, we address how it can be used and what
limitations and cautions a circuit court must observe in order
to avoid potential due process violations.
¶36 It is helpful to consider Loomis's due process
arguments in the broader context of the evolution of evidence-
based sentencing. Wisconsin has been at the forefront of
advancing evidence-based practices. In 2004, this court’s
Planning and Policy Advisory Committee (PPAC) created a
subcommittee "to explore and assess the effectiveness of
policies and programs . . . designed to improve public safety
and reduce incarceration."19
¶37 From that initial charge, Wisconsin’s commitment to
evidence-based practices and its leadership role have been well
19
Supreme Court of Wisconsin, Planning and Policy Advisory
Committee (PPAC), Effective Justice Strategies Subcommittee,
Phase I: June 2004——June 2007 Insights and Recommendations, at
3-4, https://www.wicourts.gov/courts/programs/docs/phase1final
report.pdf.
14
No. 2015AP157-CR
documented.20 Initially, a variety of risk and needs assessment
tools were used by various jurisdictions within the state. In
2012, however, the Wisconsin Department of Corrections selected
COMPAS as the statewide assessment tool for its correctional
officers, providing assessment of risk probability for pretrial
release misconduct and general recidivism.21
¶38 The question of whether COMPAS can be used at
sentencing has previously been addressed. In State v. Samsa,
2015 WI App 6, 359 Wis. 2d 580, 859 N.W.2d 149, the court of
appeals approved of a circuit court’s consideration of a COMPAS
assessment at sentencing. However, it was not presented with
the due process implications that we face here. Citing to a
principle for sentencing courts set forth in State v. Gallion,
2002 WI App 265, ¶26, 258 Wis. 2d 473, 654 N.W.2d 446, aff'd,
2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, the Samsa court
20
See generally Suzanne Tallarico et. al., National Center
for State Courts (NCSC), Court Services Division, Effective
Justice Strategies in Wisconsin: A Report of Findings and
Recommendations (2012),
https://www.wicourts.gov/courts/programs/docs/ejsreport.pdf;
Supreme Court of Wisconsin, Planning and Policy Advisory
Committee (PPAC), Effective Justice Strategies Subcommittee,
Phase II: Progress and Accomplishments (Nov. 13, 2013),
https://www.wicourts.gov/courts/programs/docs/finalreport.pdf;
Casey, Using Offender Risk and Needs Assessment Information at
Sentencing, supra note 7, at 41.
21
Pamela M. Casey et al., National Center for State Courts
(NCSC), Center for Sentencing Initiatives, Research Division,
Use of Risk and Needs Assessment Information at Sentencing: La
Crosse County, Wisconsin at 3 (Jan. 2014),
http://www.ncsc.org/~/media/Microsites/Files/CSI/RNA%20Brief%20-
%20La%20Crosse%20County%20WI%20csi.ashx.
15
No. 2015AP157-CR
emphasized that "COMPAS is merely one tool available to a court
at the time of sentencing." 359 Wis. 2d 580, ¶13.
¶39 In Gallion we warned of ad hoc decision making at
sentencing: "Experience has taught us to be cautious when
reaching high consequence conclusions about human nature that
seem to be intuitively correct at the moment. Better instead is
a conclusion that is based on more complete and accurate
information . . . ." 270 Wis. 2d 535, ¶36. We encouraged
circuit courts to seek "more complete information upfront, at
the time of sentencing. Judges would be assisted in knowing
about a defendant's propensity for causing harm [and] the
circumstances likely to precipitate the harm . . . ." Id., ¶34.
¶40 Concern about ad hoc decision making is justified. A
myriad of determinations are made throughout the criminal
justice system without consideration of tested facts of any
kind. Questions such as whether to require treatment, if so
what kind, and how long supervision should last often have been
left to a judge's intuition or a correctional officer's standard
practice.
¶41 The need to have additional sound information is
apparent for those working in corrections, but that need is
even more pronounced for sentencing courts. Sentencing
decisions are guided by due process protections that may not
16
No. 2015AP157-CR
apply to many run of the mill correctional decisions.22 This
distinction is of import given that the risk and needs
assessment tools were designed for use by those within the
Department of Corrections and that design is being transitioned
to a sentencing venue governed by different guiding principles.
¶42 In response to a call to reduce recidivism by
employing evidence-based practices, several states have passed
legislation requiring that judges be provided with risk
assessments and recidivism data at sentencing.23 Other states
22
The process that is due under the Constitution differs
with the types of decisions and proceedings involved. "Due
process is flexible and calls for such procedural protections as
the particular situation demands." Schweiker v. McClure, 456
U.S. 188, 200 (1982); see also Londoner v. City and Cty. of
Denver, 210 U.S. 373, 386 (1908) ("Many requirements essential
in strictly judicial proceedings may be dispensed with [in the
administrative forum]").
23
See, e.g., Ky. Rev. Stat. Ann. § 532.007(3)(a) (2016)
(sentencing judges in Kentucky shall consider the results of a
defendant's risk and needs assessment included in the
presentence investigation); Ohio Rev. Code Ann.
§ 5120.114(A)(1)-(3) (2015-16) (the Ohio department of
rehabilitation and correction "shall select a single validated
risk assessment tool for adult offenders" that shall be used for
purposes including sentencing); 42 PA. Cons. Stat. § 2154.7(a)
(2016) (in Pennsylvania, a risk assessment instrument shall be
adopted to help determine appropriate sentences). See also
Ariz. Code of Judicial Admin. § 6-201.01(J)(3) (2016) ("For all
probation eligible cases, presentence reports shall [] contain
case information related to criminogenic risk and needs as
documented by the standardized risk assessment and other file
and collateral information"); Okla. Stat. tit. 22, § 988.18(B)
(2016) (an assessment and evaluation instrument designed to
predict risk to recidivate is required to determine eligibility
for any community punishment).
17
No. 2015AP157-CR
permit, but do not mandate, the use of risk assessment tools at
sentencing.24
¶43 But other voices are challenging the efficacy of
evidence-based sentencing and raise concern about overselling
the results. They urge that judges be made aware of the
limitations of risk assessment tools, lest they be misused:
In the main, [supporters] have been reticent to
acknowledge the paucity of reliable evidence that now
exists, and the limits of the interventions about
which we do possess evidence. Unless criminal justice
system actors are made fully aware of the limits of
the tools they are being asked to implement, they are
likely to misuse them.
Cecelia Klingele, The Promises and Perils of Evidence-Based
Corrections, 91 Notre Dame L. Rev. 537, 576 (2015).
24
See, e.g., Idaho Code § 19-2517 (2016) (if an Idaho court
orders a presentence investigation, the investigation report for
all offenders sentenced directly to a term of imprisonment and
for certain offenders placed on probation must include current
recidivism rates differentiated based on offender risk levels of
low, moderate, and high); Malenchik v. State, 928 N.E.2d 564,
566, 571-73, 575 (Ind. 2010) (encouraging the use of evidence
based offender assessment instruments at sentencing); La. Stat.
Ann. § 15:326(A) (2016) (some Louisiana courts may use a single
presentence investigation validated risk and needs assessment
tool prior to sentencing an adult offender eligible for
assessment); Wash. Rev. Code § 9.94A.500(1) (2016) (requiring a
court to consider risk assessment reports at sentencing if
available); State v. Rogers, No. 14-0373, 2015 WL 869323, at *4
(W. Va. Jan. 9, 2015) (Loughry, J., concurring) (in an
unpublished Memorandum Decision, the Supreme Court of Appeals of
West Virginia explained that although probation officers are
required to conduct standardized risk and needs assessments
pursuant to W. Va. Code § 62-12-6(a)(2) (2016), the use of these
tools at sentencing to inform sentencing decisions is left to
the discretion of the circuit court).
18
No. 2015AP157-CR
¶44 We heed this admonition. The DOC already recognizes
limitations on the PSI, instructing that "[i]t is very important
to remember that risk scores are not intended to determine the
severity of the sentence or whether an offender is
incarcerated." We are in accord with these limitations.
Further, we set forth the corollary limitation that risk scores
may not be considered as the determinative factor in deciding
whether the offender can be supervised safely and effectively in
the community.25
¶45 In addressing Loomis's due process arguments below, we
additionally raise cautions that a sentencing court must observe
in order to avoid potential due process violations.
IV
¶46 We turn to address Loomis's first argument that a
circuit court's consideration of a COMPAS risk assessment
violates a defendant's due process right to be sentenced based
on accurate information. Loomis advances initially that the
proprietary nature of COMPAS prevents a defendant from
challenging the scientific validity of the risk assessment.
Accordingly, Loomis contends that because a COMPAS risk
assessment is attached to the PSI, a defendant is denied full
access to information in the PSI and therefore cannot ensure
that he is being sentenced based on accurate information.
25
See Casey, Using Offender Risk and Needs Assessment
Information at Sentencing, supra note 7, at 14.
19
No. 2015AP157-CR
¶47 It is well-established that "[a] defendant has a
constitutionally protected due process right to be sentenced
upon accurate information." Travis, 347 Wis. 2d 142, ¶17.
Additionally, the right to be sentenced based upon accurate
information includes the right to review and verify information
contained in the PSI upon which the circuit court bases its
sentencing decision. State v. Skaff, 152 Wis. 2d 48, 53, 447
N.W.2d 84 (Ct. App. 1989).
¶48 In Gardner v. Florida, 430 U.S. 349, 351 (1977)
(Stevens, J., plurality opinion), the circuit court imposed the
death sentence, relying in part on information in a presentence
investigation report that was not disclosed to counsel for the
parties. The plurality opinion concluded that the defendant
"was denied due process of law when the death sentence was
imposed, at least in part, on the basis of information which he
had no opportunity to deny or explain." Id. at 362.
¶49 Following Gardner, the Wisconsin court of appeals
determined that it was an erroneous exercise of discretion for
the circuit court to categorically deny disclosure of the PSI to
a defendant.26 Skaff, 152 Wis. 2d at 58. The Skaff court
explained that if the PSI was incorrect or incomplete, no person
was in a better position than the defendant to refute, explain,
26
Although Gardner v. Florida, 430 U.S. 349 (1977) was a
death penalty case, State v. Skaff, 152 Wis. 2d 48, 55 447
N.W.2d 84 (Ct. App. 1989), determined that "we perceive no
reason why its rationale should not be applied to penalties of
lesser severity."
20
No. 2015AP157-CR
or supplement the PSI. Id. at 57. Accordingly, until the
defendant reviews his PSI, its accuracy cannot be verified. Id.
at 58.
¶50 Skaff reasoned that given the discretion accorded the
circuit court in sentencing decisions, any significant
inaccuracies would likely affect the defendant's sentence. Id.
Therefore, denial of access to the PSI denied the defendant "an
essential factor of due process, i.e., a procedure conducive to
sentencing based on correct information." Id. at 57 (citing
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
¶51 Loomis analogizes the COMPAS risk assessment to the
PSI in Gardner and Skaff. Northpointe, Inc., the developer of
COMPAS, considers COMPAS a proprietary instrument and a trade
secret. Accordingly, it does not disclose how the risk scores
are determined or how the factors are weighed. Loomis asserts
that because COMPAS does not disclose this information, he has
been denied information which the circuit court considered at
sentencing.
¶52 He argues that he is in the best position to refute or
explain the COMPAS risk assessment, but cannot do so based
solely on a review of the scores as reflected in the bar charts.
Additionally, Loomis contends that unless he can review how the
21
No. 2015AP157-CR
factors are weighed and how risk scores are determined, the
accuracy of the COMPAS assessment cannot be verified.27
¶53 Loomis's analogy to Gardner and Skaff is imperfect.
Although Loomis cannot review and challenge how the COMPAS
algorithm calculates risk, he can at least review and challenge
the resulting risk scores set forth in the report attached to
the PSI. At the heart of Gardner and Skaff is the fact that the
court relied on information the defendant did not have any
opportunity to refute, supplement or explain. Gardner, 430 U.S.
at 362. That is not the case here.
¶54 Loomis is correct that the risk scores do not explain
how the COMPAS program uses information to calculate the risk
scores. However, Northpointe's 2015 Practitioner's Guide to
COMPAS explains that the risk scores are based largely on static
information (criminal history), with limited use of some dynamic
variables (i.e. criminal associates, substance abuse).28
¶55 The COMPAS report attached to Loomis's PSI contains a
list of 21 questions and answers regarding these static factors
such as:
27
In a similar vein, Loomis asserts that the COMPAS
assessment would not pass the Daubert test and therefore would
be inadmissible at trial. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579 (1993). Given that the rules of evidence do
not apply at sentencing, we need not address that argument here.
State v. Straszkowski, 2008 WI 65, ¶52, 310 Wis. 2d 259, 750
N.W.2d 835.
28
Northpointe, Inc., supra note 14, at 12, 27.
22
No. 2015AP157-CR
 How many times has this person been returned to
custody while on parole? 5+
 How many times has this person had a new
charge/arrest while on probation? 4
 How many times has this person been arrested
before as an adult or juvenile (criminal arrest
only)? 12
Thus, to the extent that Loomis's risk assessment is based upon
his answers to questions and publicly available data about his
criminal history, Loomis had the opportunity to verify that the
questions and answers listed on the COMPAS report were accurate.
¶56 Additionally, this is not a situation in which
portions of a PSI are considered by the circuit court, but not
released to the defendant. The circuit court and Loomis had
access to the same copy of the risk assessment. Loomis had an
opportunity to challenge his risk scores by arguing that other
factors or information demonstrate their inaccuracy.
¶57 Yet, regardless of whether Gardner and Skaff are
analogous to this case, Loomis correctly asserts that defendants
have the right to be sentenced based on accurate information.
Travis, 347 Wis. 2d 142, ¶17.
¶58 Some states that use COMPAS have conducted validation
studies of COMPAS concluding that it is a sufficiently accurate
23
No. 2015AP157-CR
risk assessment tool.29 New York State's Division of Criminal
Justice Services conducted a study examining a COMPAS
assessment's recidivism scale's effectiveness and predictive
accuracy and concluded that "the Recidivism Scale worked
effectively and achieved satisfactory predictive accuracy."30
Unlike New York and other states, Wisconsin has not yet
completed a statistical validation study of COMPAS for a
Wisconsin population.31
¶59 However, Loomis relies on other studies of risk
assessment tools that have raised questions about their
29
This analysis references current research studies in
order to caution sentencing courts regarding concerns that have
been raised about evidence-based risk assessment tools such as
COMPAS. However, we are not in a position to evaluate or opine
on the scientific reliability of this data. Accordingly, this
opinion should not be read as an endorsement of any particular
research study or article, regardless of whether its conclusion
is critical or supportive of the COMPAS risk assessment tool.
30
Sharon Lansing, New York State Division of Criminal
Justice Services, Office of Justice Research and Performance,
New York State COMPAS-Probation Risk and Need Assessment Study:
Examining the Recidivism Scale's Effectiveness and Predictive
Accuracy, at i, 18 (September 2012),
http://www.northpointeinc.com/downloads/research/DCJS_OPCA_
COMPAS_Probation_Validity.pdf.
31
See, e.g., Julia Angwin et al., ProPublica, Machine Bias
(May 23, 2016), https://www.propublica.org/article/machine-bias-
risk-assessments-in-criminal-sentencing. See also Lansing,
supra note 30; Thomas Blomberg, et at., Broward Sheriff's
Office, Department of Community Control, Validation of the
COMPAS Risk Assessment Classification Instrument (Sept. 2010),
http://criminology.fsu.edu/wp-content/uploads/Validation-of-the-
COMPAS-Risk-Assessment-Classification-Instrument.pdf.
24
No. 2015AP157-CR
accuracy.32 For example, he cites to a 2007 California
Department of Corrections and Rehabilitation ("CDCR") study
which concludes that although COMPAS appears to be assessing
criminogenic needs and recidivism risk, "there is little
evidence that this is what [] COMPAS actually assesses."33
¶60 The California Study reached the further conclusion
that there "is no sound evidence that the COMPAS can be rated
consistently by different evaluators, that it assesses the
criminogenic needs it purports to assess, and (most importantly)
that it predicts inmates' recidivism for CDCR offenders."34
Ultimately, the authors of the study could not recommend that
CDCR use COMPAS for individuals.35
32
The State acknowledges that no method of risk assessment
is without error. For example, the State cites to a primer on
COMPAS which summarizes multiple studies that have assessed
COMPAS's predictive validity as moderate, with scores ranging
from .50-.73. Pamela M. Casey, et al., National Center for
State Courts (NCSC), Offender Risk & Needs Assessment
Instruments: A Primer for Courts at A-23 (2014),
http://www.ncsc.org/~/media/Microsites/Files/CSI/BJA%20RNA%20Fin
al%20Report_Combined%20Files%208-22-14.ashx. However, it also
summarizes other studies that assign COMPAS higher scores of .70
for internal consistency and .70-1.0 for re-test reliability.
Id.
33
Jennifer L. Skeem and Jennifer Eno Loudon, Report
Prepared for the California Department of Corrections and
Rehabilitation (CDCR), Assessment of Evidence on the Quality of
the Correctional Offender Management Profiling for Alternative
Sanctions (COMPAS) at 5 (2007),
http://www.cdcr.ca.gov/adult_research_branch/Research_Documents/
COMPAS_Skeem_EnoLouden_Dec_2007.pdf.
34
Id.
35
Id.
25
No. 2015AP157-CR
¶61 Subsequently, however, the CDCR published its 2010
final report on California's COMPAS validation study.36 The 2010
study concluded that although not perfect, "COMPAS is a reliable
instrument. . . ."37 Specifically, it explained that the general
recidivism risk scale achieved the value of .70, which is the
conventional standard, though the violence risk scale did not.38
¶62 In addition to these problems, there is concern that
risk assessment tools may disproportionately classify minority
offenders as higher risk, often due to factors that may be
outside their control, such as familial background and
education.39 Other state studies indicate that COMPAS is more
predictive of recidivism among white offenders than black
offenders.40
¶63 A recent analysis of COMPAS's recidivism scores based
upon data from 10,000 criminal defendants in Broward County,
Florida, concluded that black defendants "were far more likely
36
David Farabee et al., California Department of
Corrections and Rehabilitation, COMPAS Validation Study: Final
Report (Aug. 15, 2010),
http://www.cdcr.ca.gov/adult_research_branch/Research_Documents/
COMPAS_Final_report_08-11-10.pdf.
37
Id. at 29.
38
Id.
39
Cecelia Klingele, The Promises and Perils of Evidence-
Based Corrections, 91 Notre Dame L. Rev. 537, 577 (2015).
40
See e.g., Angwin, supra note 31; Tracy L. Fass, et al.,
The LSI-R and the Compas: Validation Data on Two Risk-Needs
Tools, 35 Crim. Justice & Behavior 1095, 1100-01 (2008).
26
No. 2015AP157-CR
than white defendants to be incorrectly judged to be at a higher
risk of recidivism."41 Likewise, white defendants were more
likely than black defendants to be incorrectly flagged as low
risk.42 Although Northpointe disputes this analysis, this study
and others raise concerns regarding how a COMPAS assessment's
risk factors correlate with race.43
¶64 Additional concerns are raised about the need to
closely monitor risk assessment tools for accuracy. At least
one commentator has explained that in order to remain accurate,
risk assessment tools "must be constantly re-normed for changing
populations and subpopulations." Klingele, The Promises and
Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. at
576. Accordingly, jurisdictions that utilize risk assessment
tools must ensure they have the capacity for maintaining those
tools and monitoring their continued accuracy. Id. at 577.
¶65 Focusing exclusively on its use at sentencing and
considering the expressed due process arguments regarding
accuracy, we determine that use of a COMPAS risk assessment must
be subject to certain cautions in addition to the limitations
set forth herein.
41
Jeff
Larson et al., ProPublica, How We Analyzed the
COMPAS Recidivism Algorithm (May 23, 2016),
https://www.propublica.org/article/how-we-analyzed-the-compas-
recidivism-algorithm.
42
Id.
43
Northpointe, Inc., supra note 14, at 14.
27
No. 2015AP157-CR
¶66 Specifically, any PSI containing a COMPAS risk
assessment must inform the sentencing court about the following
cautions regarding a COMPAS risk assessment's accuracy: (1) the
proprietary nature of COMPAS has been invoked to prevent
disclosure of information relating to how factors are weighed or
how risk scores are to be determined; (2) risk assessment
compares defendants to a national sample, but no cross-
validation study for a Wisconsin population has yet been
completed; (3) some studies of COMPAS risk assessment scores
have raised questions about whether they disproportionately
classify minority offenders as having a higher risk of
recidivism; and (4) risk assessment tools must be constantly
monitored and re-normed for accuracy due to changing populations
and subpopulations. Providing information to sentencing courts
on the limitations and cautions attendant with the use of COMPAS
risk assessments will enable courts to better assess the
accuracy of the assessment and the appropriate weight to be
given to the risk score.
V
¶67 We address next Loomis's argument that a circuit
court's consideration of a COMPAS risk assessment amounts to
sentencing based on group data, rather than an individualized
sentence based on the charges and the unique character of the
defendant. As this court explained in Gallion, individualized
sentencing "has long been a cornerstone to Wisconsin's criminal
justice jurisprudence." 270 Wis. 2d 535, ¶48.
28
No. 2015AP157-CR
¶68 If a COMPAS risk assessment were the determinative
factor considered at sentencing this would raise due process
challenges regarding whether a defendant received an
individualized sentence. As the defense expert testified at the
post-conviction motion hearing, COMPAS is designed to assess
group data. He explained that COMPAS can be analogized to
insurance actuarial risk assessments, which identify risk among
groups of drivers and allocate resources accordingly.
¶69 Similarly, the 2015 Practitioner's Guide to COMPAS
explains that "[r]isk assessment is about predicting group
behavior . . . it is not about prediction at the individual
level."44 Risk scales are able to identify groups of high-risk
offenders——not a particular high-risk individual.45 A pointed
example of potential misunderstanding arising from the use of
group data is that an individual who has never committed a
violent offense may nevertheless be labeled as a high risk for
recidivism on the violent risk scale. As the DOC explains:
"[a]n offender who is young, unemployed, has an early age-at-
first-arrest and a history of supervision failure, will score
medium or high on the Violence Risk Scale even though the
offender never had a violent offense."46
44
Northpointe, Inc., supra note 14, at 31.
45
Id.
46
State of Wisconsin, Department of Corrections, Electronic
Case Reference Manual, COMPAS Assessment Frequently Asked
Questions, http://doc.helpdocsonline.com/dcc-business-process.
29
No. 2015AP157-CR
¶70 To ameliorate this problem, the DOC explains that
"staff are predicted to disagree with an actuarial risk
assessment (e.g. COMPAS) in about 10% of the cases due to
mitigating or aggravating circumstances to which the assessment
is not sensitive."47 Thus, "staff should be encouraged to use
their professional judgment and override the computed risk as
appropriate . . . ."48
¶71 Just as corrections staff should disregard risk scores
that are inconsistent with other factors, we expect that circuit
courts will exercise discretion when assessing a COMPAS risk
score with respect to each individual defendant.
¶72 Ultimately, we disagree with Loomis because
consideration of a COMPAS risk assessment at sentencing along
with other supporting factors is helpful in providing the
sentencing court with as much information as possible in order
to arrive at an individualized sentence. In Gallion, this court
explained that circuit courts "have an enhanced need for more
complete information upfront, at the time of sentencing." 270
Wis. 2d 535, ¶34.
¶73 COMPAS has the potential to provide sentencing courts
with more complete information to address this enhanced need.
The Indiana Supreme Court examined similar risk assessment tools
47
Id.
48
Northpointe, Inc., supra note 14, at 31.
30
No. 2015AP157-CR
and explained that these tools assist courts in weighing all the
sentencing factors:
Such assessment instruments enable a sentencing judge
to more effectively evaluate and weigh several express
statutory sentencing considerations such as criminal
history, the likelihood of affirmative response to
probation or short term imprisonment, and the
character and attitudes indicating that a defendant is
unlikely to commit another crime.
Malenchik v. State, 928 N.E.2d 564, 574 (Ind. 2010) (internal
quotations omitted).
¶74 However the due process implications compel us to
caution circuit courts that because COMPAS risk assessment
scores are based on group data, they are able to identify groups
of high-risk offenders——not a particular high-risk individual.
Accordingly, a circuit court is expected to consider this
caution as it weighs all of the factors that are relevant to
sentencing an individual defendant.
VI
¶75 We turn now to address Loomis's argument that a COMPAS
risk assessment's use of gender violates a defendant's due
process rights. Relying on Harris, 326 Wis. 2d 685, ¶33, Loomis
asserts that because COMPAS risk scores take gender into
account, a circuit court's consideration of a COMPAS risk
assessment violates a defendant's due process right not to be
sentenced on the basis of gender.
¶76 Due to the proprietary nature of COMPAS, the parties
dispute the specific method by which COMPAS considers gender.
Loomis asserts that it is unknown exactly how COMPAS uses
31
No. 2015AP157-CR
gender, but contends that COMPAS considers gender as a
criminogenic factor. The State disagrees, contending that the
DOC uses the same COMPAS risk assessment on both men and women,
but then compares each offender to a "norming" group of his or
her own gender.
¶77 Regardless of whether gender is used as a criminogenic
factor or solely for statistical norming, Loomis objects to any
use of gender in calculating COMPAS's risk scores. In response,
the State contends that considering gender in a COMPAS risk
assessment is necessary to achieve statistical accuracy. The
State argues that because men and women have different rates of
recidivism and different rehabilitation potential, a gender
neutral risk assessment would provide inaccurate results for
both men and women.
¶78 Both parties appear to agree that there is statistical
evidence that men, on average, have higher recidivism and
violent crime rates compared to women. Commentators also have
noted and discussed statistical evidence differentiating men and
women in this context. See, e.g., Sonja B. Starr, Evidence-
Based Sentencing and the Scientific Rationalization of
Discrimination, 66 Stan. L. Rev. 803, 813 (2014) ("if the
instrument includes gender, men will always receive higher risk
scores than otherwise-identical women (because, averaged across
all cases, men have higher recidivism rates . . . "); John
Monahan, A Jurisprudence of Risk Assessment: Forecasting Harm
Among Prisoners, Predators, and Patients, 92 Va. L. Rev. 391,
416 (2006) ("That women commit violent acts at a much lower rate
32
No. 2015AP157-CR
than men is a staple in criminology and has been known for as
long as official records have been kept.").
¶79 However, Loomis asserts that even if statistical
generalizations based on gender are accurate, they are not
necessarily constitutional. He cites to Craig v. Boren, 429
U.S. 190, 208-210 (1976), a case where the United States Supreme
Court concluded that an Oklahoma law that prohibited the sale of
3.2% beer to men under the age 21 and to women under the age of
18 violated the equal protection clause of the Fourteenth
Amendment. The Court explained that although state officials
offered sociological or empirical justifications for the gender-
based difference in the law, "the principles embodied in the
Equal Protection Clause are not to be rendered inapplicable by
statistically measured but loose-fitting generalities concerning
the drinking tendencies of aggregate groups." Id. at 208-09.
¶80 Notably, however, Loomis does not bring an equal
protection challenge in this case. Thus, we address whether
Loomis's constitutional due process right not to be sentenced on
the basis of gender is violated if a circuit court considers a
COMPAS risk assessment at sentencing. See Harris, 326
Wis. 2d 685, ¶33.
¶81 Loomis misinterprets Harris in arguing that a
sentencing court cannot consider a COMPAS risk assessment
because it takes gender into account in calculating risk scores.
In Harris, the defendant asserted that the circuit court imposed
its sentence on the basis of gender when it criticized him for
being unemployed while his child's mother worked. Id., ¶61.
33
 No. 2015AP157-CR
Harris argued that he should not be penalized for being a stay-
at-home father and that the circuit court used this fact as an
aggravating factor when fashioning his sentence. Id.
¶82 In determining whether the circuit court improperly
considered gender in sentencing Harris, this court concluded
that there was a factual basis underlying the circuit court's
statements that was not related to Harris's gender. Id., ¶¶62-
63. The record revealed that Harris was not his daughter's
stay-at-home primary caregiver and that other factors
demonstrated that he was not a responsible father. Id., ¶63.
¶83 Likewise, there is a factual basis underlying COMPAS's
use of gender in calculating risk scores. Instead, it appears
that any risk assessment tool which fails to differentiate
between men and woman will misclassify both genders. As one
commenter noted, "the failure to take gender into consideration,
at least when predicting recidivism risk, itself is unjust."
Melissa Hamilton, Risk-Needs Assessment: Constitutional and
Ethical Challenges, 52 Am. Crim. L. Rev. 231, 255 (Spring 2015).
Thus, if the inclusion of gender promotes accuracy, it serves
the interests of institutions and defendants, rather than a
discriminatory purpose. Id.
¶84 Additionally, Harris concluded that the defendant had
not met his burden of proving by clear and convincing evidence
that the circuit court actually relied on gender as a factor in
imposing its sentence. 326 Wis. 2d 685, ¶64. It explained that
the "circuit court considered the proper factors——it evaluated
the gravity of the offense, Harris's character, and the public's
34
No. 2015AP157-CR
need for protection." Id., ¶¶65, 67. "The circuit court
thoroughly explained its reasons for the sentence it imposed,
and all of the potentially offensive comments flagged by both
Harris and the court of appeals bear a reasonable nexus to
proper sentencing factors." Id., ¶67.
¶85 Here, as in Harris, Loomis has not met his burden of
showing that the circuit court actually relied on gender as a
factor in imposing its sentence. The circuit court explained
that it considered multiple factors that supported the sentence
it imposed:
In terms of weighing the various factors, I'm ruling
out probation because of the seriousness of the crime
and because your history, your history on supervision,
and the risk assessment tools that have been utilized,
suggest that you're extremely high risk to re-offend.
In addition to the COMPAS risk assessment, the seriousness of
the crime and Loomis's criminal history both bear a nexus to the
sentence imposed. See Gallion, 270 Wis. 2d 535, ¶46 ("we
require that the court, by reference to the relevant facts and
factors, explain how the sentence's component parts promote the
sentencing objectives."). See also Harris v. State, 75
Wis. 2d 513, 519, 250 N.W.2d 7 (1977) (relevant sentencing
factors include past record of criminal offenses, history of
undesirable behavior patterns, and results of presentence
investigation).
¶86 We determine that COMPAS's use of gender promotes
accuracy that ultimately inures to the benefit of the justice
system including defendants. Additionally, we determine that
35
No. 2015AP157-CR
the defendant failed to meet his burden of showing that the
sentencing court actually relied on gender as a factor in
sentencing. Thus, we conclude that the use of the COMPAS risk
assessment at sentencing did not violate Loomis's right to due
process.
VII
¶87 Next, we address the permissible uses for a COMPAS
risk assessment at sentencing. Then we set forth the
limitations and cautions that a sentencing court must observe
when using COMPAS.
¶88 Although it cannot be determinative, a sentencing
court may use a COMPAS risk assessment as a relevant factor for
such matters as: (1) diverting low-risk prison-bound offenders
to a non-prison alternative; (2) assessing whether an offender
can be supervised safely and effectively in the community; and
(3) imposing terms and conditions of probation, supervision, and
responses to violations.49
¶89 First, COMPAS may be useful in identifying prison-
bound offenders who are at low risk to reoffend for purposes of
diverting them to non-prison alternatives and aids in the
decision of whether to suspend all or part of an offender's
sentence.50
49
Tallarico, supra note 20, at 20-21.
50
Casey, Using Offender Risk and Needs Assessment
Information at Sentencing, supra note 7, at 8, 9, 13.
36
No. 2015AP157-CR
¶90 Second, risk assessment tools such as COMPAS can be
helpful to assess an offender's risk to public safety and can
inform the decision of whether the risk of re-offense presented
by the offender can be safely managed and effectively reduced
through community supervision and services.51
¶91 Third, COMPAS may be used to inform decisions about
the terms and conditions of probation and supervision.52 Risk
assessments can be useful in identifying low-risk offenders who
do not require intensive supervision and treatment programs.53
Together with a need assessment, a risk assessment may inform
public safety considerations related to offender risk
management, and therefore may be used to provide guidance about
the level of supervision and control needed for an offender
placed on probation or released to extended supervision.54
Specifically, it may inform decisions such as reporting
requirements, drug testing, electronic monitoring, community
service, and the most appropriate treatment strategies.55
¶92 Thus, a COMPAS risk assessment may be used to "enhance
a judge's evaluation, weighing, and application of the other
51
Id. at 9, 13-14.
52
Id. at 16.
53
Id.
54
Id. at 11; Casey, Offender Risk & Needs Assessment
Instruments: A Primer for Courts, supra note 32, at 2.
55
Casey, Using Offender Risk and Needs Assessment
Information at Sentencing, supra note 7, at 14, 16.
37
No. 2015AP157-CR
sentencing evidence in the formulation of an individualized
sentencing program appropriate for each defendant." See
Malenchick, 928 N.E.2d at 573. As the court of appeals
explained in Samsa, "COMPAS is merely one tool available to a
court at the time of sentencing and a court is free to rely on
portions of the assessment while rejecting other portions." 359
Wis. 2d 580, ¶13.
¶93 However, the use of a COMPAS risk assessment at
sentencing must be subject to certain limitations. As noted
above, the DOC already recognizes these limitations on the PSI,
instructing that "[i]t is very important to remember that risk
scores are not intended to determine the severity of the
sentence or whether an offender is incarcerated." This is also
the first "Guiding Principle" of the National Center for State
Courts ("NCSC") report on using offender risk and needs
assessment at sentencing, which instructs that:
Risk and need assessment information should be used in
the sentencing decision to inform public safety
considerations related to offender risk reduction and
management. It should not be used as an aggravating
or mitigating factor in determining the severity of an
offender's sanction.56
¶94 Additionally, we set forth the corollary limitation
that risk scores may not be used as the determinative factor in
deciding whether the offender can be supervised safely and
56
Id. at 11.
38
No. 2015AP157-CR
effectively in the community. This is consistent with the second
"Guiding Principle" of the National Center for State Courts.57
¶95 The decision of the Indiana Supreme Court in
Malenchik, 928 N.E.2d at 575, provides additional guidance here.
It limited the use of risk assessments, explaining that they
"are not intended to serve as aggravating or mitigating
circumstances nor to determine the gross length of sentence, but
a trial court may employ such results in formulating the manner
in which a sentence is to be served."
¶96 Additionally, a COMPAS risk assessment was not
designed to address all of the goals of a sentence. Its aim is
addressing the treatment needs of an individual and identifying
the risk of recidivism. Sentencing, on the other hand, is meant
to address additional purposes. See State v. Dowdy, 2012 WI 12,
¶97, 338 Wis. 2d 565, 808 N.W.2d 691 (Abrahamson, C.J.,
dissenting) ("It is commonly understood that there are four main
purposes of sentencing: (1) deterrence; (2) rehabilitation; (3)
retribution; and (4) segregation.").
¶97 Because of these disparate goals, using a risk
assessment tool to determine the length and severity of a
sentence is a poor fit. As scholars have observed, "[a]ssessing
the risk of future crime plays no role in sentencing decisions
based solely on backward-looking perceptions of blameworthiness,
. . . is not relevant to deterrence, . . . and should not be
57
Id. at 14.
39
No. 2015AP157-CR
used to sentence offenders to more time than they morally
deserve."58
¶98 Thus, a sentencing court may consider a COMPAS risk
assessment at sentencing subject to the following limitations.
As recognized by the Department of Corrections, the PSI
instructs that risk scores may not be used: (1) to determine
whether an offender is incarcerated; or (2) to determine the
severity of the sentence. Additionally, risk scores may not be
used as the determinative factor in deciding whether an offender
can be supervised safely and effectively in the community.59
¶99 Importantly, a circuit court must explain the factors
in addition to a COMPAS risk assessment that independently
support the sentence imposed. A COMPAS risk assessment is only
one of many factors that may be considered and weighed at
sentencing.
¶100 Any Presentence Investigation Report ("PSI")
containing a COMPAS risk assessment filed with the court must
58
John Monahan and Jennifer L. Skeem, Risk Assessment in
Criminal Sentencing, 12 Annual Rev. Clinical Psychol. 489, 492-
93. See also Melissa Hamilton, Risk-Needs Assessment:
Constitutional and Ethical Challenges, 52 Am. Crim. L. Rev. 231,
277 (2015) ("Retributive and deterrence orientations are less
amenable to evidence-based practices").
59
Casey, Using Offender Risk and Needs Assessment
Information at Sentencing, supra note 7, at 14.
40
No. 2015AP157-CR
contain a written advisement listing the limitations.60
Additionally, this written advisement should inform sentencing
courts of the following cautions as discussed throughout this
opinion:
 The proprietary nature of COMPAS has been invoked to
prevent disclosure of information relating to how
factors are weighed or how risk scores are determined.
 Because COMPAS risk assessment scores are based on
group data, they are able to identify groups of high-
risk offenders——not a particular high-risk individual.
 Some studies of COMPAS risk assessment scores have
raised questions about whether they disproportionately
classify minority offenders as having a higher risk of
recidivism.
 A COMPAS risk assessment compares defendants to a
national sample, but no cross-validation study for a
Wisconsin population has yet been completed. Risk
assessment tools must be constantly monitored and re-
normed for accuracy due to changing populations and
subpopulations.
60
A circuit court may order a presentence investigation
pursuant to Wis. Stat. § 972.15(1). When filed with the court,
any presentence investigative report that attaches or
incorporates a COMPAS risk assessment must contain, consistent
with due process, a written advisement regarding the cautions
and limitations.
41
No. 2015AP157-CR
 COMPAS was not developed for use at sentencing, but
was intended for use by the Department of Corrections
in making determinations regarding treatment,
supervision, and parole.
¶101 It is important to note that these are the cautions
that have been identified in the present moment. For example,
if a cross-validation study for a Wisconsin population is
conducted, then flexibility is needed to remove this caution or
explain the results of the cross-validation study. Similarly,
this advisement should be regularly updated as other cautions
become more or less relevant as additional data becomes
available.
VIII
¶102 We apply next the relevant permissible uses,
limitations and cautions to an examination of the record in this
case. Loomis argues that he is entitled to a resentencing
hearing because the circuit considered the COMPAS risk
assessment in imposing his sentence. According to Loomis, this
is a violation of his due process rights because he argues that
a COMPAS risk assessment should never be considered at
sentencing.
¶103 Notably, Loomis does not argue that the other factors
the court considered at sentencing were insufficient to support
the sentence he received. In fact, at oral argument Loomis's
counsel acknowledged that he would not be challenging the
sentence imposed if it were devoid of any reference to the
COMPAS risk assessment. He argues instead that even if there
42
No. 2015AP157-CR
are other bases for the circuit court's sentence, this does not
overcome the error of considering the COMPAS risk assessment.
¶104 As discussed above, if used properly with an awareness
of the limitations and cautions, a circuits court’s
consideration of a COMPAS risk assessment at sentencing does not
violate a defendant’s right to due process. The circuit court
here was aware of the limitations. Two limitations were set
forth by the DOC in the PSI containing the COMPAS report. Thus,
when Loomis was sentenced, the circuit court was aware that
"risk scores are not intended to determine the severity of the
sentence or whether an offender is incarcerated." The third
limitation, that a COMPAS risk assessment may not be
determinative in deciding whether a defendant may be supervised
safely and effectively in the community is a corollary
limitation to those already set forth in the PSI.
¶105 With respect to the cautions this opinion requires, we
intend that they be used to inform courts of due process
implications. These cautions will enable sentencing courts to
better assess the weight to be given to the COMPAS risk scores,
circumventing potential due process violations. Here, however,
the record reflects that although the circuit court referenced
the risk assessment at sentencing, the court essentially gave it
little or no weight.
¶106 At the post-conviction motion hearing, the circuit
court explained that it used the COMPAS risk assessment to
corroborate its findings and that it would have imposed the same
43
No. 2015AP157-CR
sentence regardless of whether it considered the COMPAS risk
scores:
I think its accurate and safe for this court to say
that had there been absolutely no mention of the risk
assessment tool in the Presentence Report, had the
COMPAS not been attached to the presentence report,
that the sentence would have been exactly the same
because of the court's evaluation of the sentencing
factors that are required under the [] law.
¶107 The circuit court explained that it considered the
COMPAS risk assessment as "an observation" to reinforce its
assessment of the other factors it considered:
In other words, the factors that were cited by the
court suggested low probability of success on
supervision and serious crime. And that was
reinforced by the fact that the risk assessment tool
shows high risk in all areas . . .
The court identified factors that were apparent to Mr.
Loomis's history and the nature of the offenses. And
then went to the COMPAS as an instrument, basically,
that supported that evaluation.
¶108 This is consistent with the sentencing transcript, in
which the circuit court explained that it was also considering
the seriousness of the crime and Loomis's criminal history and
history on supervision in ruling out probation. A review of the
sentencing transcript reveals that the circuit court also
addressed and discussed the gravity of the offense, the
character and rehabilitative needs of the defendant, and the
need to protect the public. See Gallion, 270 Wis. 2d 535, ¶13.
¶109 Thus, the record reflects that the sentencing court
considered the appropriate factors and was aware of the
limitations associated with the use of the COMPAS risk
44
No. 2015AP157-CR
assessment. Ultimately, although the circuit court mentioned
the COMPAS risk assessment, it was not determinative in deciding
whether Loomis should be incarcerated, the severity of the
sentence or whether he could be supervised safely and
effectively in the community.
¶110 Additionally, although the circuit court was unaware
of the cautions set forth above, those cautions are required in
part to ensure that undue weight is not given to the COMPAS risk
scores. As the circuit court explained at the post conviction
hearing, it would have imposed the exact same sentence without
it. Accordingly, we determine that the circuit court's
consideration of COMPAS in this case did not violate Loomis's
due process rights.
IX
¶111 As a final matter, Loomis argues that the circuit
court improperly gave undue weight to read-in charges at
sentencing. He asserts that not only did the circuit court
appear to misunderstand the difference between dismissed and
read-in charges, but it improperly assumed that the factual
basis for the read-in charges was true.
¶112 In Frey, 343 Wis. 2d 358, ¶61, this court clarified
how the read-in procedure and dismissed charges fit into the
plea bargaining process. The circuit court can consider
uncharged or unproven offenses regardless of whether the
defendant consented to having the charges read in or dismissed
outright. Id., ¶47.
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¶113 Frey explained that it is preferable for the circuit
court to "acknowledge and discuss dismissed charges, if they are
considered by the court, giving them appropriate weight and
describing their relationship to a defendant's character and
behavioral pattern or to the incident that serves as the basis
for a plea." Id., ¶54. Open discussion of dismissed charges is
consistent with the sentencing methodology set forth in Gallion
and allows the defendant the opportunity to explain or dispute
the charges. Id.
¶114 Additionally, read-in charges are expected to be
considered at sentencing "with the understanding that the read-
in charges could increase the sentence up to the maximum that
the defendant could receive for the conviction in exchange for
the promise not to prosecute those additional offenses." Id.,
¶68.
¶115 Loomis asserts that the circuit court appeared to
misunderstand the difference between dismissed charges and those
that are dismissed but read in. At sentencing, the circuit
court initially erred in its statement regarding dismissed and
read-in charges when it stated that it could not consider the
dismissed charges at all, but would consider the read-in charges
as true. However, the circuit court took a break from the
hearing to review Frey and continued the hearing under the
proper framework.
¶116 Although the circuit court may have initially
misstated that under Frey there is no distinction between read-
in charges and dismissed charges, the circuit court's
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No. 2015AP157-CR
consideration of the read-in charges was not an erroneous
exercise of discretion. It subsequently clarified the proper
use.
¶117 During the plea hearing, quoting directly from Frey,
the circuit court advised Loomis of the proper legal standard
regarding how it would consider the read-in offenses at
sentencing. It allowed both sides to debate the merits of the
charges and ultimately believed the State's version of events
was more credible.
¶118 At the post-conviction motion hearing, the circuit
court reviewed the plea hearing transcript and the sentencing
transcript and explained how it weighed the facts in addressing
the read-in charges:
The Court had to give weight, greater weight or lesser
weight to the facts that's relating [sic] to the
shooting. I felt Mr. Loomis's explanation was
inconsistent with the facts. The State's version was
more consistent with the facts and gave greater weight
to the State's version at sentencing.
¶119 Thus, the circuit court weighed the facts, assessed
the credibility and the recognized legal standards for read-in
offenses. Accordingly, we conclude that the circuit court's
consideration of the read-in charges was not an erroneous
exercise of discretion.
X
¶120 Ultimately, we conclude that if used properly as set
forth herein, a circuit court's consideration of a COMPAS risk
assessment at sentencing does not violate a defendant's right to
47
No. 2015AP157-CR
due process and that the circuit court did not erroneously
exercise its discretion here.
¶121 We further conclude that the circuit court's
consideration of the read-in charges was not an erroneous
exercise of discretion.
¶122 Accordingly, we affirm the order of the circuit court.
By the Court.–The order of the circuit court is affirmed.
48
No. 2015AP157-CR.pdr
¶123 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). I
agree with much of the majority opinion's discussion and I
concur in its result; however, I write to clarify that while our
holding today permits a sentencing court to consider COMPAS, we
do not conclude that a sentencing court may rely on COMPAS for
the sentence it imposes. Because at times the majority opinion
interchangeably employs consider and rely when discussing a
sentencing court's obligations and the COMPAS risk assessment
tool, our decision could mistakenly be read as permitting
reliance on COMPAS.1 Therefore, I write to clarify for the
reader.2
¶124 At sentencing, the circuit court is to consider three
primary factors: gravity of the offense, character of the
offender and the need to protect the public. State v.
Alexander, 2015 WI 6, ¶22, 360 Wis. 2d 292, 858 N.W.2d 662. A
circuit court's proper exercise of sentencing discretion
includes an individualized sentence based on the facts of the
case and may include explaining how the sentence imposed
1
See, e.g., majority op., ¶¶8, 31, 48, 82, 85, 98-99.
2
Contrary to the manner in which the majority opinion
sometimes employs "consider" and "rely," they are not
interchangeable. "Rely" is defined as "to be dependent" or "to
place full confidence." Webster's New Collegiate Dictionary 977
(1974). Therefore, to permit circuit courts to rely on COMPAS
is to permit circuit courts to depend on COMPAS in imposing
sentence. On the other hand, "consider" is defined as "to
observe" or to "contemplate" or to "weigh." Id. at 241-42.
Therefore, to permit circuit courts to consider COMPAS is to
permit circuit courts to observe a COMPAS risk assessment and
weigh it along with other relevant factors in imposing sentence.
1
No. 2015AP157-CR.pdr
furthers the circuit court's objectives. Id. (citing State v.
Harris (Landray M.), 2010 WI 79, ¶29, 326 Wis. 2d 685, 786
N.W.2d 409).3
¶125 A sentencing court must articulate the factors that it
considered at sentencing and how they affected the sentence it
imposed. State v. Harris (Denia), 119 Wis. 2d 612, 623, 350
N.W.2d 633 (1984). It is through this articulation that we
determine whether the circuit court properly exercised its
sentencing discretion. Id. Defendants have a due process right
not to be sentenced in reliance on improper factors such as on
race or gender. Harris (Landray M.), 326 Wis. 2d 685, ¶33.
¶126 The circuit court's consideration of various
sentencing factors is afforded a "strong presumption of
reasonability because the circuit court is best suited to
consider the relevant factors and demeanor of the convicted
defendant." State v. Gallion, 2004 WI 42, ¶18, 270 Wis. 2d 535,
678 N.W.2d 197 (internal quotation marks omitted). Therefore, a
circuit court's sentencing decision is upheld unless it exhibits
an erroneous exercise of discretion by sentencing based on
irrelevant or improper factors. Id., ¶17; Harris (Landray M.),
326 Wis. 2d 685, ¶30. In addition, any reference to a
potentially improper sentencing factor is reviewed in the
3
See State v. Gallion, 2004 WI 42, ¶43 n.11, 270
Wis. 2d 535, 678 N.W.2d 197 which identifies numerous,
supplemental sentencing factors that circuit courts may consider
under the appropriate circumstances of each case.
2
No. 2015AP157-CR.pdr
context of the circuit court's sentencing record as a whole.
Harris (Landray M.), 326 Wis. 2d 685, ¶45.
¶127 As the majority opinion aptly explains, the circuit
court here appropriately considered numerous sentencing factors
when imposing sentence and merely mentioned the defendant's
COMPAS risk assessment in passing.4 The circuit court detailed
the three primary sentencing factors and explained how the facts
of the case warranted the sentence imposed.5 Therefore, I agree
with the majority opinion that circuit courts may consider a
COMPAS risk assessment along with a multitude of other relevant
factors at sentencing, as was done in this case.6
¶128 However, one of my concerns is that the certified
question frames the issue presented as "whether the right to due
process prohibits circuit courts from relying on COMPAS
assessments when imposing sentence."7 The majority opinion
concludes that "if used properly with an awareness of the
limitations and cautions, a circuit court's consideration of a
COMPAS risk assessment at sentencing does not violate a
defendant's right to due process."8 I agree that "consideration"
of COMPAS does not contravene defendant's right to due process.
4
Majority op., ¶¶85, 107-09.
5
Id., ¶¶85, 104-10.
6
Id., ¶¶105, 109-10.
7
State v. Loomis, No. 2015AP157-CR, 2015 WL 5446731, 1
(Wis. Ct. App. Sept. 17, 2015) (emphasis added).
8
Majority op., ¶104 (emphasis added).
3
No. 2015AP157-CR.pdr
¶129 However, the question presented on certification is
whether due process prohibits circuit courts from relying on
COMPAS, and then the majority opinion's answering that question
in the negative, even though it employs the word
"consideration," may cause the majority opinion to be read as
permitting circuit court reliance on COMPAS. Stated otherwise,
rather than merely considering COMPAS as one of many factors
relevant to sentencing, the majority opinion, due to its
interchangeable use of "rely" and "consider," together with the
certified question, may be read to permit a circuit court to
rely on COMPAS to determine the appropriate sentence. Reliance
would violate due process protections. Accordingly, I write to
clarify our holding in the majority opinion: consideration of
COMPAS is permissible; reliance on COMPAS for the sentence
imposed is not permissible.
4
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¶130 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
majority opinion. It describes the salient issues raised by
considering COMPAS at sentencing, and informs the bench and the
bar of the limitations and cautions that should be observed in
considering COMPAS in sentencing. It underscores that we are
addressing the use of a research-based tool and that it is
incumbent upon actors in the criminal justice system to
recognize that additional research data may become available in
the future and different, better tools may be developed.
¶131 I write separately to make two points:
¶132 First, I conclude that in considering COMPAS (or other
risk assessment tools) in sentencing, a circuit court must set
forth on the record a meaningful process of reasoning addressing
the relevance, strengths, and weaknesses of the risk assessment
tool.
¶133 Second, this court's lack of understanding of COMPAS
was a significant problem in the instant case. At oral
argument, the court repeatedly questioned both the State's and
defendant's counsel about how COMPAS works. Few answers were
available.
¶134 Northpointe, the company that created COMPAS, sought
to file an amicus brief in the instant case to discuss the
history, accuracy, and efficacy of COMPAS, as well as the use of
risk assessment tools like COMPAS throughout the criminal
justice system.
¶135 The court denied (over my dissent and without comment)
Northpointe's motion to file an amicus brief. The denial was a
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No. 2015AP157-CR.ssa
mistake. The court needed all the help it could get. The
majority opinion considers publications by Northpointe. Why
could it not consider an amicus brief by Northpointe?
¶136 For these reasons, I write separately.
I
¶137 I would hold that a circuit court, in considering
COMPAS (or another risk assessment tool) in sentencing, must
evaluate on the record the strengths, weaknesses, and relevance
to the individualized sentence being rendered of the evidence-
based tool (or, more precisely, the research-based or data-based
tool).
¶138 Such an explanation is needed, I think, because the
use of risk assessment tools like COMPAS has garnered mixed
reviews in the scholarly literature and in popular commentary
and analysis.
¶139 For example, although then-Attorney General Eric
Holder endorsed the use of risk assessment tools in preparing
and planning for the reentry of offenders into society, he
cautioned against using risk assessment tools in sentencing.
Attorney General Holder warned that using "static factors and
immutable characteristics, like the defendant's education level,
socioeconomic background or neighborhood" in sentencing could
have unintended consequences, including undermining our goal of
"individualized justice, with charges, convictions, and
2
No. 2015AP157-CR.ssa
sentences befitting the conduct of each defendant and the
particular crime he or she commits."1
¶140 Attorney General Holder's concerns have been echoed in
other studies.2 Additionally, studies differ regarding the
accuracy of COMPAS's recidivism (and especially violent
1
See Ryan J. Reilly, Eric Holder Warns of Risks in
'Moneyballing' Criminal Justice, Huffington Post (11:28 AM Aug.
1, 2014), http://www.huffingtonpost.com/2014/08/01/eric-holder-
moneyball-criminal-justice_n_5641420.html.
Wisconsin law also recognizes the need for individualized
sentences. See State v. Gallion, 2004 WI 42, ¶48, 270
Wis. 2d 535, 678 N.W.2d 197 (recognizing that individualized
sentencing "has long been a cornerstone to Wisconsin's criminal
justice jurisprudence.").
University of Wisconsin Law Professor Cecelia Klingele
summarized the challenges inherent in using these tools in The
Promises and Perils of Evidence-Based Corrections, 91 Notre Dame
L. Rev. 537, 576-78 (2015).
2
See Jeff Larson et al., How We Analyzed the COMPAS
Recidivism Algorithm, Pro Publica (May 23, 2016),
https://www.propublica.org/article/how-we-analyzed-the-compas-
recidivism-algorithm; see also Julia Angwin et al., Machine
Bias, Pro Publica (May 23, 2016),
https://www.propublica.org/article/machine-bias-risk-
assessments-in-criminal-sentencing (reviewing the findings of
Pro Publica's study and discussing numerous anecdotal examples
of individuals whose risks of recidivism were incorrectly
assessed).
3
No. 2015AP157-CR.ssa
recidivism) scores.3 The circuit court has to show its awareness
of and consideration of these issues.
¶141 I recognize that the demands on circuit courts are
many and their resources relatively few, but making a record,
including a record explaining consideration of the evidence-
based tools and the limitations and strengths thereof, is part
of the long-standing, basic requirement that a circuit court
explain its exercise of discretion at sentencing.
¶142 Such a process increases the likelihood that circuit
courts will remain abreast of new developments in evidence-based
decision making and cognizant of the qualities of the tools
3
See, e.g., Sheldon X. Zhang et al, An Analysis of Prisoner
Reentry and Parole Risk Using COMPAS and Traditional Criminal
History Measures, 60 Crime & Delinquency 167, 187 (2014)
(finding that a model assessing just four static variables——
gender, age, age of first arrest, and number of prior arrests——
performed just as well as COMPAS in predicting prior arrests);
Jennifer L. Skeem & Jennifer Eno Louden, Assessment of Evidence
on the Quality of Correctional Offender Management Profiling for
Alternative Sanctions (COMPAS) 28 (2007),
http://www.cdcr.ca.gov/adult_research_branch/Research_Documents/
COMPAS_Skeem_EnoLouden_Dec_2007.pdf (last visited July 1, 2016)
(stating that "there is little evidence that the COMPAS predicts
recidivism," and "there is no evidence that the COMPAS assesses
risk state, or change over time in criminogenic needs."); but
see Sharon Lansing, New York State COMPAS-Probation Risk and
Need Assessment Study: Examining the Recidivism Scale's
Effectiveness and Predictive Accuracy, N.Y. Div. Crim. Justice
Servs., Office of Justice Research & Performance, at i (Sept.
2012) (concluding that COMPAS's "Recidivism Scale worked
effectively and achieved satisfactory predictive accuracy,"
namely 71% accuracy); Tim Brennan et al., Evaluating the
Predictive Validity of the COMPAS Risk and Needs Assessment
System, 36 Crim. Just. & Behavior 21, 30 (2009) (determining, in
a study by three individuals for Northpointe, the company that
markets COMPAS, that COMPAS's risk models are "satisfactor[il]y
predictive . . . .").
4
No. 2015AP157-CR.ssa
utilized. Such a process also provides appellate courts with a
meaningful record to review and provides the State, the
defendant, and the public with a transparent and comprehensible
explanation for the sentencing court's decision.
II
¶143 With evidence-based decision making on the rise,
amicus briefs evaluating the research and data will, in all
likelihood, become more important. As Judge Richard Posner has
written, "[m]ost judges are generalists, and increasingly we are
confronted by complexities that most of us have difficulty
understanding."4 One way of addressing these complexities is
taking a more expansive view toward accepting amicus briefs.
¶144 The court denied Northpointe's motion to file an
amicus brief over my dissent. See Attachment A. COMPAS is
proprietary, and Northpointe considers COMPAS's algorithms trade
secrets. As a result, Northpointe does not disclose how COMPAS
determines individual risk scores or it how weighs various
factors in arriving at a risk score.
¶145 Northpointe has an obvious financial and proprietary
interest in the continued use of COMPAS. The court could have
taken Northpointe's interests into account in weighing
Northpointe's amicus brief.
¶146 This court's orders accepting and rejecting amicus
briefs have generally not explained the court's decision, and
the orders have not been consistent. Perhaps Northpointe's
4
Richard A. Posner, Reflections on Judging 55 (2013).
5
No. 2015AP157-CR.ssa
brief was rejected because Northpointe had an interest in the
use of its tool.
¶147 In contrast, in another order denying a motion to file
an amicus brief (Attachment B), the amicus had no legally
cognizable interest in the case.
¶148 Yet in Thompson v. Craney, 199 Wis. 2d 674, 546
N.W.2d 123 (1996), the court accepted an amicus brief filed by
then-Assembly Speaker David T. Prosser arguing that the
legislative enactment at issue in that case was constitutional.
¶149 In a recent case addressing similar issues to those
raised in Thompson, the court permitted an amicus to file a
brief and raise issues that the parties did not address. See
Coyne v. Walker, No. 2013AP416, unpublished orders dated Sept.
22, 2015 and October 1, 2015.
¶150 Without providing an explanation for the court's
acceptance or denial of amicus briefs, we provide no guidance to
lawyers and other interested persons wishing to file amicus
briefs in future cases. The court should, in my opinion, take a
more expansive view toward granting motions to file amicus
briefs.
¶151 For the reasons set forth, I concur and write
separately.
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ATTACHMENT A
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ATTACHMENT B
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