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SCOTUS asks U.S. Solicitor General: Does use of COMPAS at sentencing violate due process?

Last summer, SCOW held that, if used properly, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. See State v. Loomis and our post. Loomis filed a petition for writ of certiorari which presents this question for review:

State courts increasingly are relying on risk assessment instruments at sentencing. When the risk assessment instrument used is proprietary, as the Correctional Offender Management Profiling for Alternative Sanctions (“COMPAS”) software is, defendants have very little information about how the risk is analyzed. Is it a violation of a defendant’s constitutional right to due process for a trial court to rely on such risk assessment results at sentencing:

a.  because the proprietary nature of COMPAS prevents a defendant from challenging the accuracy and scientific validity of the risk assessment; and

b.  because COMPAS assessments take gender and race into account in formulating the risk assessment?

SCOTUS ordered the State of Wisconsin to respond to the petition, which according to this study, happens in maybe 2-3% of cases. But today SCOTUS took an even more unusual step by issuing a “CVSG”–a call for the views of the acting U.S. Solicitor General, even though the United States is not a party to Loomis v. Wisconsin.

A CVSG means at least 4 justices are interested in the case.  Click here.  SCOTUSblog offers a “plain English” explanation of the CVSG process. Essentially, SCOTUS has invited the Solicitor General to file an amicus brief recommending whether cert. should be granted or denied. If the SG recommends granting cert., then it usually also explains who should win the case and why. Scholars say SCOTUS usually follows the SG’s recommendation.  On Point will let you know what that is as soon as possible.

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{ 1 comment… add one }
  • Robert R. Henak March 8, 2017, 10:26 pm

    Congratulations to Michael Rosenberg and Ellen Henak for getting this cert. petition so far as to interest at least four Justice of the SCOTUS! VERY rare indeed, especially on a defense petition.

    Although Ellen’s name was not on the petition as co-counsel because she was not appointed by the SPD, she put in a number of pro bono hours consulting with Michael on strategy and procedure (this was his first cert. petition) and helping to draft and edit the petition. They both deserve credit for a job extraordinarily well done!

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