The developer of COMPAS says that he didn’t design it to be used in sentencing, and he won’t disclose its “trade secret” algorithm. See Pro Publica interview here. But in a 7-0 decision (with 2 concurrences) SCOW holds that if used properly, observing certain “limitations and cautions,” a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. Slip op. ¶8.
The PSI prepared for Loomis’s sentencing attached a COMPAS risk assessment, which showed him to be at high risk for pretrial, general and violent recidivism. At sentencing, the court relied on this high risk assessment along with other factors when imposing its sentence.
The lead issue on appeal was 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.” ¶6.
SCOW held that while a defendant 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. This removes it from the realm of Gardner v. Florida, 430 U.S. 349 (1977) (defendant denied due process when death sentence was imposed based on PSI information he had no opportunity to deny) and State v. Skaff , 152 Wis. 2d 48, 447, N.W.2d 84 (Ct. App. 1989)(ditto re denial disclosure of PSI to defendant receiving lesser sentence). ¶53.
SCOW also held that because men have a higher recidivism rate than women, a risk assessment tool that takes gender into account is more accurate. In any event, Loomis failed to show that the circuit court actually relied on his gender when sentencing him. ¶¶83-85.
And SCOW stressed that the circuit court used COMPAS to “corroborate” the sentence it would have imposed anyway.¶106. It set these ground rules for future cases:
¶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.
¶98 [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. Additionally, this written advisement should inform sentencing courts of the following cautions as discussed throughout this opinion: [See list of prescribed “cautions” here.]