State of Wisconsin v. Eric L. Loomis

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.

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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.

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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/Resolution7.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."

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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.

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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

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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.

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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.

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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,

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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.'"

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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.

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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

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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

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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

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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.

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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.

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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

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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).

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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).

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¶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.

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¶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."

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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

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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.

No. 2015AP157-CR

23

 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

No. 2015AP157-CR

24

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-biasrisk-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-theCOMPAS-Risk-Assessment-Classification-Instrument.pdf.

No. 2015AP157-CR

25

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.

No. 2015AP157-CR

26

¶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 EvidenceBased 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).

No. 2015AP157-CR

27

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-compasrecidivism-algorithm.

42 Id.

43 Northpointe, Inc., supra note 14, at 14.

No. 2015AP157-CR

28

¶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.

No. 2015AP157-CR

29

¶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.

No. 2015AP157-CR

30

¶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.

No. 2015AP157-CR

31

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

No. 2015AP157-CR

32

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

No. 2015AP157-CR

33

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.

No. 2015AP157-CR

34

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

No. 2015AP157-CR

35

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

No. 2015AP157-CR

36

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.

No. 2015AP157-CR

37

¶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.

No. 2015AP157-CR

38

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.

No. 2015AP157-CR

39

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.

No. 2015AP157-CR

40

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, 49293. 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.

No. 2015AP157-CR

41

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.

No. 2015AP157-CR

42

 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

No. 2015AP157-CR

43

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

No. 2015AP157-CR

44

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

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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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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

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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.