ON CERTIFICATION FROM THE COURT OF APPEALS
ANN WALSH BRADLEY, J.
¶ 1 In 2007, the Conference of Chief Justices adopted a resolution entitled "In Support of Sentencing Practices that Promote Public Safety and Reduce Recidivism."
¶ 2 Likewise, the American Bar Association has urged states to adopt risk assessment tools in an effort to reduce recidivism and increase public safety.
¶ 3 Initially risk assessment tools were used only by probation and parole departments to help determine the best supervision and treatment strategies for offenders.
¶ 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.
¶ 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.
¶ 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."
¶ 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 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
¶ 10 Accordingly, we affirm the order of the circuit court denying Loomis's motion for post-conviction relief requesting a resentencing hearing.
¶ 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 by a felon (PTAC); (5) Possession of a short-barreled shotgun or rifle (PTAC).
¶ 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:
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 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 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.
¶ 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:
¶ 18 At sentencing, the State argued that the circuit court should use the COMPAS report when determining an appropriate sentence:
¶ 19 Ultimately, the circuit court referenced the COMPAS risk score along with other sentencing factors in ruling out probation:
¶ 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:
¶ 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.
¶ 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 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:
¶ 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:
¶ 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.
¶ 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 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, 182 N.W.2d 512. 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, 817 N.W.2d 436. "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, 832 N.W.2d 491.
¶ 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 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.
¶ 37 From that initial charge, Wisconsin's commitment to evidence-based practices and its leadership role have been well documented.
¶ 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 emphasized that "COMPAS is merely one tool available to a court at the time of sentencing." 359 Wis.2d 580, ¶ 13, 859 N.W.2d 149.
¶ 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, 678 N.W.2d 197. 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.
¶ 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.
¶ 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:
Cecelia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 537, 576 (2015).
¶ 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.
¶ 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.
¶ 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.
¶ 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, 832 N.W.2d 491. 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, 97 S.Ct. 1197, 51 L.Ed.2d 393 (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, 97 S.Ct. 1197.
¶ 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.
¶ 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 factors are weighed and how risk scores are determined, the accuracy of the COMPAS assessment cannot be verified.
¶ 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, 97 S.Ct. 1197. 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).
¶ 55 The COMPAS report attached to Loomis's PSI contains a list of 21 questions and answers regarding these static factors such as:
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
¶ 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, 832 N.W.2d 491.
¶ 58 Some states that use COMPAS have conducted validation studies of COMPAS concluding that it is a sufficiently accurate risk assessment tool.
¶ 59 However, Loomis relies on other studies of risk assessment tools that have raised questions about their accuracy.
¶ 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
¶ 61 Subsequently, however, the CDCR published its 2010 final report on California's COMPAS validation study.
¶ 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.
¶ 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 than white defendants to be incorrectly judged to be at a higher risk of recidivism."
¶ 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.
¶ 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
¶ 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, 678 N.W.2d 197.
¶ 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."
¶ 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."
¶ 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
¶ 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, 678 N.W.2d 197.
¶ 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 and explained that these tools assist courts in weighing all the sentencing factors:
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.
¶ 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, 786 N.W.2d 409, 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 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,
¶ 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, 97 S.Ct. 451, 50 L.Ed.2d 397 (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, 97 S.Ct. 451.
¶ 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, 786 N.W.2d 409.
¶ 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. 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, 786 N.W.2d 409. It explained that the "circuit court considered the proper factors — it evaluated the gravity of the offense, Harris's character, and the public's need for protection." Id., ¶¶ 65, 67. "The circuit court
¶ 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 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, 678 N.W.2d 197 ("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 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.
¶ 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.
¶ 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.
¶ 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.
¶ 91 Third, COMPAS may be used to inform decisions about the terms and conditions
¶ 92 Thus, a COMPAS risk assessment may be used to "enhance a judge's evaluation, weighing, and application of the other 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, 859 N.W.2d 149.
¶ 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:
¶ 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 effectively in the community. This is consistent with the second "Guiding Principle" of the National Center for State Courts.
¶ 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,
¶ 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 used to sentence offenders to more time than they morally deserve."
¶ 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.
¶ 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 contain a written advisement listing the limitations.
¶ 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.
¶ 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 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 sentence regardless of whether it considered the COMPAS risk scores:
¶ 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:
¶ 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, 678 N.W.2d 197.
¶ 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 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.
¶ 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, 817 N.W.2d 436, 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.
¶ 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
¶ 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 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:
¶ 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.
¶ 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 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.
The order of the circuit court is affirmed.
PATIENCE DRAKE ROGGENSACK, Chief Justice. (concurring).
¶ 123 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.
¶ 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, 786 N.W.2d 409.
¶ 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, 786 N.W.2d 409. In addition, any reference to a potentially improper sentencing factor is reviewed in the context of the circuit court's sentencing record as a whole. Harris (Landray M.), 326 Wis.2d 685, ¶ 45, 786 N.W.2d 409.
¶ 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.
¶ 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."
¶ 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.
SHIRLEY S. ABRAHAMSON, J. (concurring).
¶ 130 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 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.
¶ 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
¶ 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 sentences befitting the conduct of each defendant and the particular crime he or she commits."
¶ 140 Attorney General Holder's concerns have been echoed in other studies.
¶ 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
¶ 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."
¶ 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 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.
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).