The Lawletter Vol 41 No 8
Jason Holder, Research Attorney, National Legal Research Group
In State v. Loomis, 2016 WI 68, 881 N.W.2d 749, the Supreme Court of Wisconsin upheld the use of risk assessment tools at sentencing against a due process challenge. In doing so, however, the Loomis court noted that such tools are consistent with due process protections only if they are used properly and in accordance with certain limitations. Additionally, the court may have provided a possible road map for future challenges to the use of risk assessment tools at sentencing.
Loomis had been charged with a number of offenses stemming from a drive-by shooting and ultimately pleaded guilty to two of the lesser offenses. A presentence investigation report was prepared and included a Correctional Offender Management Profiling for Alternative Sanctions ("COMPAS") risk assessment. In ruling out probation, the circuit court noted that it did so 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." Id. ¶ 19, 881 N.W.2d at 755. After being denied a new sentencing hearing, Loomis appealed. On appeal, Loomis gave three reasons why the use of the COMPAS risk assessment violated his due process rights: "(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 defendant's right to an individualized sentence; and (3) it improperly uses gendered assessments in sentencing." Id. ¶ 34, 881 N.W.2d at 757.
With respect to the first reason, Loomis argued that because of the proprietary nature of COMPAS, its developer does not disclose how the scores are determined or how factors are weighed. As a result, a defendant is not able to verify the accuracy of the report in the same way that due process demands that she or he be able to access and refute a presentencing report. On this point, the court was not convinced. It noted that the COMPAS report attached a list of the questions and answers used in its analysis. A defendant, the court reasoned, has the opportunity to verify that these questions and answers are accurate in compliance with due process. Nevertheless, the court cautioned that a sentencing court must still be warned that
(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.
Id. ¶ 66, 881 N.W.2d at 763-64. The addition of these warnings, the court reasoned, would allow courts to better assess the accuracy of reports and determine what weight to provide them.
Loomis’s second challenge centered on the fact that risk assessments identify "groups of high-risk offenders—not a particular high-risk individual." Id. ¶ 69, 881 N.W.2d at 764. As a result, Loomis argued, their use denies the defendant an individualized sentence. Once again, however, the court was not persuaded.
T his characteristic of risk assessments would raise a due process challenge, according to the court, if the risk assessment were the determinative factor considered at sentencing. The court noted that the Department of Corrections employees are made aware of this fact and encouraged to disagree with the assessment results when they believe that there exist mitigating or aggravating circumstances not properly considered by the test. The court found that if circuit courts are similarly made aware of the nature of risk assessments and use them as one factor among many, then such courts can be expected to "exercise discretion when assessing a COMPAS risk score with respect to each individual defendant." Id. ¶ 71, 881 N.W.2d at 764-65.
Loomis’s final challenge was based on the fact that COMPAS scores took gender into account. The scores did so because of statistical evidence "that men, on average, have higher recidivism and violent crime rates compared to women." Id. ¶ 78, 881 N.W.2d at 765. In finding no violation of due process, the court was swayed by the factual basis upon which gender was being used. The court noted that failure to distinguish between men and women for such assessments would actually misclassify both. Accordingly, the "use of gender promotes accuracy that ultimately inures to the benefit of the justice system including defendants." Id. ¶ 86, 881 N.W.2d at 767.
The court next set out limitations and cautions that sentencing courts must observe. Risk assessments cannot be determinative, but may be considered as a relevant factor for "(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." Id. ¶ 88, 881 N.W.2d at 767. The COMPAS scores cannot be used, however, to determine whether an offender is incarcerated, the severity of the sentence or as the determinative factor in deciding whether an offender can be supervised safely and effectively in the community. Id. ¶ 98, 881 N.W.2d at 769. With these provisions in mind, the court found no due process violation in the trial court’s use of COMPAS risk assessments with respect to the sentencing of Loomis.
A final note should be made on what the Loomis court did not consider, as it may provide guidance for future challenges. In opposing the use of gender as a factor, Loomis had cited to Craig v. Boren, 429 U.S. 190 (1976). Craig involved a challenge to Oklahoma statutes prohibiting the sale of 3.2 percent beer to males under the age of 21 and females under the age of 18. The law was supported by statistical evidence of the higher rate among young males (1) for arrests for "driving under the influence" and "drunkenness," (2) for being among those killed or injured in traffic accidents, and (3) for being more inclined to drive and drink beer. Id. at 200-01. The Court, however, cautioned that "proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause." Id. at 204 (emphasis added). Thus, the Supreme Court held that "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. The Loomis court noted that the defendant did not make a challenge based upon equal protection and refused to consider it. Loomis, 2016 WI 68, ¶ 80, 881 N.W.2d at 766. It thus remains to be seen if the Equal Protection Clause offers a more successful route to challenging risk assessments in the future.