We certify this appeal to the Wisconsin Supreme Court to decide whether the right to due process prohibits circuit courts from relying on COMPAS assessments when imposing sentence. More specifically, we certify whether this practice 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. Given the widespread use of COMPAS assessments, we believe that prompt supreme court review of the matter is needed.
Loomis challenged the use of COMPAS because it was developed not for sentencing purposes, but for allocating correctional programming resources. The problem, though, is that the company that created COMPAS won’t disclose its underlying methodology because that’s proprietary information. To the court this raises “the fundamental question” of “whether the proprietary nature of COMPAS, and thus the apparent limited ability of defendants to investigate the tool, unfairly prevents defendants from challenging the COMPAS assessment’s scientific validity. …. The lack of transparency regarding COMPAS appears to present a unique sentencing situation and, therefore, is suitable for supreme court review.” (Certification at 4-5).
It also turns out that COMPAS has general scales applicable to men and women as well as a scale applicable only to women. That apparently means COMPAS assessment results will differ between men and women based on gender alone—though we don’t know for sure because of the problem just noted: The proprietary nature of the information. If COMPAS does differ based solely on gender, that may violate the rule that makes gender an improper sentencing factor. State v. Harris, 2010 WI 79, ¶33, 326 Wis. 2d 685, 786 N.W.2d 409. (Certification at 5-6).
Finally, as the court notes, in State v. Samsa, 2015 WI App 6, 359 Wis. 2d 580, 859 N.W.2d 149, review denied, 2015 WI 47, __ Wis. 2d __, 862 N.W.2d 899, the court of appeals approved of a circuit court’s reliance on a COMPAS assessment at sentencing, although the defendant in that case didn’t raise the due process arguments Loomis raises. If the right to due process prohibits reliance on COMPAS assessments at sentencing, the next question will be whether Samsa must be modified or overruled, and that is something only the supreme court can do. (Certification at 6-7).