2016 WI 68 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP157-CR State of Wisconsin, Plaintiff-Respondent, v. Eric L. Loomis, Defendant-Appellant. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: July 13, 2016 April 5, 2016 Circuit La Crosse Scott L. Horne ROGGENSACK, C. J. concurs (Opinion filed). ABRAHAMSON, J. concurs (Opinion filed). DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant, there were briefs by Michael D. Rosenberg and Community Justice, Inc., Madison, and oral argument by Michael D. Rosenberg. For the plaintiff-respondent, the cause was argued by Christine A. Remington, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general. 2016 WI 68 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2015AP157-CR (L.C. No. 2012CF75 & 2013CF98) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. JUL 13, 2016 Eric L. Loomis, Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant. APPEAL from an order of the circuit court. ¶1 Chief ANN WALSH Justices Sentencing BRADLEY, adopted Practices a that J. In resolution Promote 2007, Affirmed. the entitled Public Conference "In Safety Support and of of Reduce Recidivism."1 It emphasized that the judiciary "has a vital role to ensuring play 1 in that criminal justice systems work 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. No. 2015AP157-CR effectively and efficiently to protect the public by reducing recidivism and holding offenders accountable."2 The conference committed sentencing to "support state efforts to adopt 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 low-risk to the incarceration of individuals, cautioning that the placement of low-risk offenders with medium and high-risk offenders may increase rather than decrease the risk recidivism.5 of influences from Such higher exposure risk can offenders lead and to negative actually be detrimental to the individual's efforts at rehabilitation.6 ¶3 probation 2 Id. 3 Id. Initially and risk parole assessment departments 4 to tools help were used determine only the by best 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. 2 No. 2015AP157-CR supervision and treatment nationwide focus on the strategies need to offenders.7 for reduce recidivism With 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. recognize It is incumbent upon the criminal justice system to that in the coming months research data will become available. and years, additional 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 Information at Sentencing, supra note 7, at 1. 10 "COMPAS" stands for "Correctional Profiling for Alternative Sanctions." 3 Offender Assessment Management No. 2015AP157-CR 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 court's Petitioner, denial of his Eric L. Loomis, post-conviction appeals motion the circuit 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 challenging nature the of COMPAS COMPAS prevents assessment's defendants scientific validity, from 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. 4 No. 2015AP157-CR court erroneously exercised its discretion by assuming that the factual bases for the read-in charges were true. ¶8 observing Ultimately, the we limitations conclude and that cautions if set used forth properly, 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 effectively in the community. be supervised safely and 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. charged him with five counts, all as a repeater: It (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 5 No. 2015AP157-CR 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 consent. operating a motor vehicle without the owner's The plea agreement stated that the other counts would be dismissed but read in: The other counts will be dismissed and read in sentencing, although the defendant denies he had role in the shooting, and only drove the car after shooting occurred. The State believes he was driver of the car when the shooting happened. for any the the The State will leave any appropriate sentence to the Court's discretion, but will argue aggravating and mitigating factors. After accepting Loomis's presentence investigation. plea, the circuit court ordered a The Presentence Investigation Report ("PSI") included an attached COMPAS risk assessment. ¶13 COMPAS Northpointe, Department is Inc. of a risk-need to provide Corrections when assessment decisional making designed support placement managing offenders, and planning treatment.14 13 tool for by the decisions, The COMPAS risk "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. 6 No. 2015AP157-CR assessment is based upon information gathered from the defendant's criminal file and an interview with the defendant. ¶14 to A COMPAS report consists of a risk assessment designed 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 recidivism that risk, represent and pretrial violent recidivism recidivism risk, risk.16 general 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. 7 No. 2015AP157-CR 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, 8 No. 2015AP157-CR and the risk assessment tools that have been utilized, suggest that you're extremely high risk to re-offend. ¶20 court In addition considered the to the COMPAS read-in assessment, charges at the circuit 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 hearing Although reveals a review of the miscommunications transcript and of uncertainty the plea 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 readin 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.'" 9 No. 2015AP157-CR 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 that The plea questionnaire/waiver of rights form stated the maximum seventeen years penalty and Loomis six faced months for both charges imprisonment. The was court sentenced him within the maximum on the two charges for which he entered a plea.18 ¶23 Loomis filed a motion for requesting a new sentencing hearing. court's consideration sentencing asserted violated that the of his due circuit the post-conviction He argued that the circuit COMPAS process court relief risk rights. erroneously assessment Loomis at further exercised its discretion by improperly assuming that the factual bases for the read-in charges were true. ¶24 The circuit conviction motion. court held two hearings on the post- 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. 10 No. 2015AP157-CR discretion in how it considered Considering the relevant case law the and read-in legal charges. standards, the circuit court concluded that it had applied the proper standard and denied Loomis's motion on that issue. ¶25 circuit During the first post-conviction motion hearing, the court sentencing reviewed transcript the and plea hearing explained that transcript it did not and the 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. expert witness, The defendant offered the testimony of an Dr. David Thompson, regarding sentencing of a COMPAS risk assessment. the use at 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. court's consideration According to Dr. Thompson, a circuit 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 have very Dr. Thompson further testified that sentencing courts 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 11 No. 2015AP157-CR 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 court In denying explained the that it post-conviction used the motion, COMPAS risk the circuit 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 erroneous exercise of discretion standard." WI 99, ¶37, 343 Wis. 2d 358, 817 under the State v. Frey, 2012 N.W.2d 436. An erroneous exercise of discretion occurs when a circuit court imposes a sentence "without reasoning process." the underpinnings of an explained judicial 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 12 No. 2015AP157-CR 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 or the law improper factors. bears the convincing when it relies on clearly irrelevant McCleary, 49 Wis. 2d at 278. burden of evidence. proving State v. such reliance Harris, 2010 The defendant by WI clear 79, and ¶3, 326 Wis. 2d 685, 786 N.W.2d 409. ¶32 In a similar manner we review the issue of whether a circuit relies court on fashioning ¶¶37-39. the the erroneously factual exercises basis defendant's of its the sentence. discretion read-in Frey, 343 when charge it when Wis. 2d 358, "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 use of Specifically, Loomis asserts that the circuit court's a COMPAS risk assessment at sentencing violates defendant's right to due process for three reasons: a (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 13 No. 2015AP157-CR 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 evidencebased sentencing. advancing Planning Wisconsin evidence-based and subcommittee Policy "to has been practices. Advisory explore and at In 2004, Committee assess the the forefront this (PPAC) of court’s created effectiveness a 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. 14 No. 2015AP157-CR 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 sentencing has previously been addressed. can be used at 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. 15 No. 2015AP157-CR emphasized that "COMPAS is merely one tool available to a court at the time of sentencing." ¶39 In Gallion sentencing: 359 Wis. 2d 580, ¶13. we warned of ad hoc decision making at "Experience has taught us to be cautious when reaching high consequence conclusions about human nature that seem to be intuitively correct at the moment. a conclusion that information . . . is based ." 270 on more Better instead is complete Wis. 2d 535, and ¶36. We accurate encouraged circuit courts to seek "more complete information upfront, at the time of sentencing. about a defendant's Judges would be assisted in knowing propensity for causing harm circumstances likely to precipitate the harm . . . ." ¶40 myriad kind. determinations system without are made consideration throughout the of facts tested the Id., ¶34. Concern about ad hoc decision making is justified. of justice [and] A criminal of any 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 apparent for those even more to have working pronounced for additional in sound corrections, sentencing information but courts. that need is is Sentencing decisions are guided by due process protections that may not 16 No. 2015AP157-CR apply to many run of the mill correctional decisions.22 distinction is assessment tools of import were given designed that for use the by risk those and This needs 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 assessments and recidivism data at sentencing.23 with risk 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). 17 No. 2015AP157-CR 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). 18 No. 2015AP157-CR ¶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 incarcerated." sentence We are in or whether accord with an offender these is 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 circuit We turn court's to address Loomis's consideration of a first COMPAS argument risk that a assessment violates a defendant's due process right to be sentenced based on accurate information. proprietary challenging Accordingly, nature the of Loomis advances initially that the COMPAS scientific Loomis prevents validity contends that of a the because defendant risk a from assessment. 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 Information at Sentencing, supra note 7, at 14. 19 Assessment No. 2015AP157-CR ¶47 It is constitutionally upon accurate well-established protected due information." Additionally, the right to that "[a] process right Travis, 347 be sentenced defendant to be has sentenced Wis. 2d 142, based upon a ¶17. 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. "was The plurality opinion concluded that the defendant 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." ¶49 Following Gardner, the Id. at 362. 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 death N.W.2d reason lesser Although Gardner v. Florida, 430 U.S. 349 (1977) was a penalty case, State v. Skaff, 152 Wis. 2d 48, 55 447 84 (Ct. App. 1989), determined that "we perceive no why its rationale should not be applied to penalties of severity." 20 No. 2015AP157-CR or supplement the PSI. Id. at 57. Accordingly, until the defendant reviews his PSI, its accuracy cannot be verified. Id. at 58. ¶50 circuit Skaff reasoned that given the discretion accorded the 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 explain He argues that he is in the best position to refute or 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 21 No. 2015AP157-CR factors are weighed and how risk scores are determined, the accuracy of the COMPAS assessment cannot be verified.27 ¶53 Although Loomis's analogy to Gardner and Skaff is imperfect. 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. court At the heart of Gardner and Skaff is the fact that the relied on information the defendant opportunity to refute, supplement or explain. at 362. did not have any Gardner, 430 U.S. That is not the case here. ¶54 Loomis is correct that the risk scores do not explain how the COMPAS program uses scores. However, information to calculate the risk 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. 22 No. 2015AP157-CR  How many times has this person been returned to custody while on parole? 5+  How many times has this person charge/arrest while on probation? 4  How many times has this person been arrested before as an adult or juvenile (criminal arrest only)? 12 had a new 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 23 No. 2015AP157-CR risk assessment tool.29 Justice Services assessment's accuracy and Unlike York a achieved and a scale's concluded effectively completed conducted recidivism and New New York State's Division of Criminal that examining effectiveness "the states, validation Wisconsin of COMPAS predictive Scale predictive study a and Recidivism satisfactory other statistical study worked accuracy."30 has not COMPAS yet for a Wisconsin population.31 ¶59 However, assessment tools Loomis that relies have on raised other studies questions of about risk 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. 24 No. 2015AP157-CR accuracy.32 Department For of example, Corrections he and cites to a 2007 Rehabilitation California ("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. 25 No. 2015AP157-CR ¶61 Subsequently, however, the CDCR published its final report on California's COMPAS validation study.36 2010 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 outside as higher their education.39 predictive risk, control, often such due as to factors familial that may background be and Other state studies indicate that COMPAS is more 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). 26 No. 2015AP157-CR 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 closely monitor risk assessment tools for accuracy. need to 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. ¶65 Focusing considering the exclusively expressed on due its use process Id. at 577. at sentencing arguments and 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 42 Id. 43 Northpointe, Inc., supra note 14, at 14. 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. 27 No. 2015AP157-CR ¶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 prevent nature of COMPAS has been invoked to disclosure of information relating to how factors are weighed or how risk scores compares are to defendants validation study to for be a a determined; national Wisconsin (2) sample, population risk assessment but no has cross- yet been completed; (3) some studies of COMPAS risk assessment scores have raised classify questions minority about offenders whether as they having disproportionately 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. 28 No. 2015AP157-CR ¶68 If a COMPAS risk assessment were the determinative factor considered at sentencing this would raise due process challenges regarding whether individualized sentence. post-conviction group data. motion He a defendant received an As the defense expert testified at the hearing, explained COMPAS that is COMPAS designed can be to assess analogized to insurance actuarial risk assessments, which identify risk among groups of drivers and allocate resources accordingly. ¶69 explains Similarly, that "[r]isk behavior . . . it level."44 the is 2015 Practitioner's assessment not about is Guide about prediction to predicting at the COMPAS group individual 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-atfirst-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. 29 No. 2015AP157-CR ¶70 "staff To are assessment ameliorate predicted (e.g. this to COMPAS) problem, disagree in about the with 10% of DOC an the explains that actuarial risk 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. 30 No. 2015AP157-CR 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 caution However the circuit due courts process that implications because COMPAS compel risk us to 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 risk We turn now to address Loomis's argument that a COMPAS assessment's process rights. asserts that account, a use of gender violates a defendant's due Relying on Harris, 326 Wis. 2d 685, ¶33, Loomis because circuit COMPAS court's risk scores consideration take of a gender into 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 31 exactly how COMPAS uses No. 2015AP157-CR gender, but contends criminogenic factor. that COMPAS considers gender as a 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 neutral and risk different assessment rehabilitation would provide potential, inaccurate a gender results for both men and women. ¶78 evidence Both parties appear to agree that there is statistical that men, on average, have higher violent crime rates compared to women. recidivism and Commentators also have noted and discussed statistical evidence differentiating men and women in this context. See, e.g., Sonja B. Starr, Evidence- Based the Sentencing Discrimination, and 66 Stan. L. Scientific Rev. 803, Rationalization 813 (2014) ("if of 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 . . . "); Monahan, A Jurisprudence of Risk Assessment: John Forecasting Harm Among Prisoners, Predators, and Patients, 92 Va. L. Rev. 391, 416 (2006) ("That women commit violent acts at a much lower rate 32 No. 2015AP157-CR than men is a staple in criminology and has been known for as long as official records have been kept."). ¶79 However, generalizations Loomis based asserts on gender necessarily constitutional. that are even if accurate, statistical they are not 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 Amendment. equal protection clause of the Fourteenth The Court explained that although state officials offered sociological or empirical justifications for the genderbased 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." ¶80 Notably, however, Loomis does protection challenge in this case. not Id. at 208-09. bring an equal 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 sentencing court misinterprets cannot Harris consider a in arguing COMPAS risk that a 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. 33 Id., ¶61. No. 2015AP157-CR Harris argued that he should not be penalized for being a stayat-home father and that the circuit court used this fact as an aggravating factor when fashioning his sentence. ¶82 Id. 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. 63. Id., ¶¶62- The record revealed that Harris was not his daughter's stay-at-home primary caregiver and that other demonstrated that he was not a responsible father. ¶83 factors Id., ¶63. Likewise, there is a factual basis underlying COMPAS's use of gender in calculating risk scores. 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, Ethical Risk-Needs Assessment: Constitutional and Challenges, 52 Am. Crim. L. Rev. 231, 255 (Spring 2015). Thus, if the inclusion of gender promotes accuracy, it serves the interests of institutions discriminatory purpose. ¶84 and defendants, rather than a Id. 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 34 No. 2015AP157-CR 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 proper sentencing factors." ¶85 bear a reasonable nexus to Id., ¶67. 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 Wis. 2d 513, objectives."). 519, 250 See N.W.2d 7 also Harris (1977) v. (relevant State, 75 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 35 No. 2015AP157-CR the defendant failed to meet his burden of showing that the sentencing court sentencing. actually relied on gender as a factor in Thus, we conclude that the use of the COMPAS risk assessment at sentencing did not violate Loomis's right to due process. VII ¶87 risk Next, we address the permissible uses for a COMPAS 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 Information at Sentencing, supra note 7, at 8, 9, 13. 36 Assessment No. 2015AP157-CR ¶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 Specifically, it requirements, drug or may released inform testing, to extended decisions electronic such supervision.54 as reporting 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 Information at Sentencing, supra note 7, at 14, 16. 37 Assessment No. 2015AP157-CR sentencing evidence in sentencing program appropriate Malenchick, 928 N.E.2d the at formulation for 573. of each As an individualized defendant." the court of See 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 sentencing must be subject to certain limitations. at 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 sentence or whether an offender is incarcerated." of the 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 56 whether the offender Id. at 11. 38 can be supervised safely and No. 2015AP157-CR 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 designed to address all of the goals of a sentence. was not 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. ¶97, 338 Wis. 2d 565, 808 See State v. Dowdy, 2012 WI 12, 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 assessment tool of to these determine sentence is a poor fit. disparate the goals, length and using a severity risk of a 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. 39 No. 2015AP157-CR 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, instructs that risk scores may not be used: the PSI (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 in Importantly, a circuit court must explain the factors addition to a COMPAS risk support the sentence imposed. one of many factors that assessment that independently A COMPAS risk assessment is only 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 Information at Sentencing, supra note 7, at 14. 40 Assessment No. 2015AP157-CR contain a written advisement listing limitations.60 the 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 highrisk 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 renormed 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. 41 No. 2015AP157-CR  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. if a cross-validation study for a Wisconsin For example, 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 hearing argues because that the he is circuit entitled to considered assessment in imposing his sentence. a the resentencing COMPAS risk 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 he sentence acknowledged imposed if that it COMPAS risk assessment. were would devoid not of be any challenging reference to the the He argues instead that even if there 42 No. 2015AP157-CR 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. here was aware of the limitations. The circuit court 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." limitation, that a COMPAS risk assessment The third 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 implications. they be used to inform courts of due process 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 court the explained post-conviction that it used motion the hearing, COMPAS risk the circuit assessment to corroborate its findings and that it would have imposed the same 43 No. 2015AP157-CR 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 COMPAS risk circuit court assessment as explained "an that it observation" to considered the 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. sentencing addressed transcript and reveals discussed the that the gravity A review of the circuit of the court offense, also 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 limitations the appropriate associated with factors the 44 and use of was the aware of COMPAS the risk No. 2015AP157-CR assessment. Ultimately, although the circuit court mentioned the COMPAS risk assessment, it was not determinative in deciding whether Loomis sentence or should be whether he incarcerated, could be the severity supervised of safely the 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 court a final improperly sentencing. appear to read-in matter, gave undue Loomis argues weight to that read-in the circuit charges at He asserts that not only did the circuit court misunderstand charges, but the it difference improperly between assumed dismissed that the and 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 uncharged or process. unproven The offenses circuit court regardless of can consider whether the defendant consented to having the charges read in or dismissed outright. Id., ¶47. 45 No. 2015AP157-CR ¶113 Frey explained that it is preferable for the circuit court to "acknowledge and discuss dismissed charges, if they are considered by the describing their court, giving relationship them to a appropriate defendant's weight and 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 readin 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. hearing However, the circuit court took a break from the to review Frey and continued the circuit the hearing under the proper framework. ¶116 Although court may have initially misstated that under Frey there is no distinction between readin charges and dismissed charges, 46 the circuit court's No. 2015AP157-CR consideration of the read-in exercise of discretion. charges was not an erroneous 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 sentencing. it would consider the read-in offenses at 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 47 No. 2015AP157-CR due process and that the circuit court did not erroneously exercise its discretion here. ¶121 We consideration further of the conclude read-in that charges the was circuit not an court's erroneous exercise of discretion. ¶122 Accordingly, we affirm the order of the circuit court. By the Court.–The order of the circuit court is affirmed. 48 No. ¶123 PATIENCE agree with much DRAKE of the ROGGENSACK, majority C.J. opinion's 2015AP157-CR.pdr (concurring). I discussion I and 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. interchangeably employs Because at times the majority opinion consider and rely when discussing a sentencing court's obligations and the COMPAS risk assessment tool, our decision could reliance on COMPAS.1 mistakenly be read as permitting Therefore, I write to clarify for the reader.2 ¶124 At sentencing, the circuit court is to consider three primary factors: offender and the gravity need of to the protect offense, the character public. of State Alexander, 2015 WI 6, ¶22, 360 Wis. 2d 292, 858 N.W.2d 662. circuit court's proper exercise of sentencing the v. A discretion includes an individualized sentence based on the facts of the case and 1 may include explaining how the sentence imposed See, e.g., majority op., ¶¶8, 31, 48, 82, 85, 98-99. 2 Contrary to the manner in which the majority opinion sometimes employs "consider" and "rely," they are not interchangeable. "Rely" is defined as "to be dependent" or "to place full confidence." Webster's New Collegiate Dictionary 977 (1974). Therefore, to permit circuit courts to rely on COMPAS is to permit circuit courts to depend on COMPAS in imposing sentence. On the other hand, "consider" is defined as "to observe" or to "contemplate" or to "weigh." Id. at 241-42. Therefore, to permit circuit courts to consider COMPAS is to permit circuit courts to observe a COMPAS risk assessment and weigh it along with other relevant factors in imposing sentence. 1 No. furthers the circuit court's objectives. 2015AP157-CR.pdr Id. (citing State v. Harris (Landray M.), 2010 WI 79, ¶29, 326 Wis. 2d 685, 786 N.W.2d 409).3 ¶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). determine It is through this articulation that we whether the circuit sentencing discretion. Id. court properly exercised its Defendants have a due process right not to be sentenced in reliance on improper factors such as on race or gender. ¶126 The sentencing circuit factors reasonability consider Harris (Landray M.), 326 Wis. 2d 685, ¶33. the defendant." is because court's consideration afforded a the relevant circuit factors and "strong court is demeanor of various presumption best of suited the of to convicted 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 irrelevant or improper factors. 326 Wis. 2d 685, potentially ¶30. improper In by sentencing based on Id., ¶17; Harris (Landray M.), addition, sentencing 3 factor any is reference reviewed to in a the See State v. Gallion, 2004 WI 42, ¶43 n.11, 270 Wis. 2d 535, 678 N.W.2d 197 which identifies numerous, supplemental sentencing factors that circuit courts may consider under the appropriate circumstances of each case. 2 No. 2015AP157-CR.pdr context of the circuit court's sentencing record as a whole. Harris (Landray M.), 326 Wis. 2d 685, ¶45. ¶127 As the majority opinion aptly explains, the circuit court here appropriately considered numerous sentencing factors when imposing sentence and merely COMPAS risk assessment in passing.4 mentioned the defendant's The circuit court detailed the three primary sentencing factors and explained how the facts of the case warranted the sentence imposed.5 Therefore, I agree with the majority opinion that circuit courts may consider a COMPAS risk assessment along with a multitude of other relevant factors at sentencing, as was done in this case.6 ¶128 However, one of my concerns is that the certified question frames the issue presented as "whether the right to due process prohibits assessments concludes when that circuit imposing "if used courts from sentence."7 properly with relying on COMPAS The majority opinion an awareness of the limitations and cautions, a circuit court's consideration of a COMPAS risk assessment at sentencing defendant's right to due process."8 does not violate a I agree that "consideration" of COMPAS does not contravene defendant's right to due process. 4 Majority op., ¶¶85, 107-09. 5 Id., ¶¶85, 104-10. 6 Id., ¶¶105, 109-10. 7 State v. Loomis, No. 2015AP157-CR, 2015 WL 5446731, 1 (Wis. Ct. App. Sept. 17, 2015) (emphasis added). 8 Majority op., ¶104 (emphasis added). 3 No. 2015AP157-CR.pdr ¶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. would violate due process protections. Accordingly, I write to clarify our holding in the majority opinion: COMPAS is permissible; reliance imposed is not permissible. 4 on Reliance COMPAS consideration of for the sentence No. ¶130 SHIRLEY S. ABRAHAMSON, J. majority opinion. 2015AP157-CR.ssa (concurring). I join the 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. addressing the incumbent upon use of actors a It underscores that we are research-based in the tool criminal and justice that it system is 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. 1 The denial was a No. mistake. 2015AP157-CR.ssa The court needed all the help it could get. majority opinion considers publications by The Northpointe. Why could it not consider an amicus brief by Northpointe? ¶136 For these reasons, I write separately. I ¶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 evidencebased 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 reviews in the scholarly literature and in popular commentary and analysis. ¶139 For example, although then-Attorney General Eric Holder endorsed the use of risk assessment tools in preparing and planning cautioned for against the reentry using risk of offenders assessment into tools in society, he 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 2 charges, convictions, and No. sentences befitting the conduct of each 2015AP157-CR.ssa defendant and the particular crime he or she commits."1 ¶140 Attorney General Holder's concerns have been echoed in other studies.2 accuracy of Additionally, COMPAS's studies recidivism differ (and regarding especially the violent 1 See Ryan J. Reilly, Eric Holder Warns of Risks in 'Moneyballing' Criminal Justice, Huffington Post (11:28 AM Aug. 1, 2014), http://www.huffingtonpost.com/2014/08/01/eric-holdermoneyball-criminal-justice_n_5641420.html. 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). 2 See Jeff Larson et al., How We Analyzed the COMPAS Recidivism Algorithm, Pro Publica (May 23, 2016), https://www.propublica.org/article/how-we-analyzed-the-compasrecidivism-algorithm; see also Julia Angwin et al., Machine Bias, Pro Publica (May 23, 2016), https://www.propublica.org/article/machine-bias-riskassessments-in-criminal-sentencing (reviewing the findings of Pro Publica's study and discussing numerous anecdotal examples of individuals whose risks of recidivism were incorrectly assessed). 3 No. recidivism) scores.3 2015AP157-CR.ssa The circuit court has to show its awareness of and consideration of these issues. ¶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 of new developments in evidence-based decision making and cognizant of the qualities of the tools 3 See, e.g., Sheldon X. Zhang et al, An Analysis of Prisoner Reentry and Parole Risk Using COMPAS and Traditional Criminal History Measures, 60 Crime & Delinquency 167, 187 (2014) (finding that a model assessing just four static variables—— gender, age, age of first arrest, and number of prior arrests—— performed just as well as COMPAS in predicting prior arrests); Jennifer L. Skeem & Jennifer Eno Louden, Assessment of Evidence on the Quality of Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) 28 (2007), http://www.cdcr.ca.gov/adult_research_branch/Research_Documents/ COMPAS_Skeem_EnoLouden_Dec_2007.pdf (last visited July 1, 2016) (stating that "there is little evidence that the COMPAS predicts recidivism," and "there is no evidence that the COMPAS assesses risk state, or change over time in criminogenic needs."); but see Sharon Lansing, New York State COMPAS-Probation Risk and Need Assessment Study: Examining the Recidivism Scale's Effectiveness and Predictive Accuracy, N.Y. Div. Crim. Justice Servs., Office of Justice Research & Performance, at i (Sept. 2012) (concluding that COMPAS's "Recidivism Scale worked effectively and achieved satisfactory predictive accuracy," namely 71% accuracy); Tim Brennan et al., Evaluating the Predictive Validity of the COMPAS Risk and Needs Assessment System, 36 Crim. Just. & Behavior 21, 30 (2009) (determining, in a study by three individuals for Northpointe, the company that markets COMPAS, that COMPAS's risk models are "satisfactor[il]y predictive . . . ."). 4 No. utilized. 2015AP157-CR.ssa Such a process also provides appellate courts with a meaningful record to review and provides the State, the defendant, and the public with a transparent and comprehensible explanation for the sentencing court's decision. II ¶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 understanding."4 that most of us have difficulty One way of addressing these complexities is taking a more expansive view toward accepting amicus briefs. ¶144 The court denied Northpointe's amicus brief over my dissent. motion to See Attachment A. file an 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. taken Northpointe's interests into The court could have 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 4 have not been consistent. Perhaps Northpointe's Richard A. Posner, Reflections on Judging 55 (2013). 5 No. 2015AP157-CR.ssa 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 briefs in future cases. more expansive view persons wishing to file amicus The court should, in my opinion, take a toward granting motions to file amicus briefs. ¶151 For the reasons set separately. 6 forth, I concur and write No. ATTACHMENT A OFFICE OF THE CLERK Genet of 110 EAST MAIN STREET, SUITE 215 1&0. Box 1688 MADISON, WI 537914688 TELEPHONE (688) 266-1888 FACSIMILE {608) 267?0648 Web Site: To: Hon. Scott L. Home La Crosse County Circuit Court Judge 333 Vine Street La Crosse, WI 5460] Pamela Radtke La Crosse County Clerk of Circuit Court 333 Vine Street, Room 1200 La Crosse, WI 5460i. Tim Gruenke District Attorney 333 Vine Street, Room 1100 La Crosse, WI: 54601 March ll, 2016 Christine A. Remington Assistant Attorney General Box 7857 Madison, WI. 53707-785? Miehaei D. Rosenberg Community Justice, inc. 214 N. Hamilton. Street, Suite Madison, WI 53703 John B. Toffee]! Tuffneil Law SC. 788 N. Eefferson Street, Suite 900 Miiwaokee, Wl 53202 You are hereby noti?ed that the Court has entered the following order: No. State v. Loomis The court having considered the motion of Northpointe inc. for ieave to ?le a non?party brief amicus curiae; IT ZS ORDERED that the motion is denied. 112 SHIRLEY S. ABRAHAMSON, I. (dissenting). The requirements set forth in Wis. Stat. 809.190) governing amicus briefs are reiativeiy few. gee Michael S. Heffernao, Practice and 'E?rocedure in Wisconsin, ch. at 25-26 (2015). The motioo in the iostan?? ease meets these requirements. The court issues an order denying the motion. 1 would grant the motion. No. Page 2 March ii, 2016 No. 20 State V. 'Loomis $3 Once again, the court offers no expianation of its order to assist this movant or future movants. tie Northpointe, inc. states that it wishes to ?le an arnicus brief because it developed COMPAS, the sentencing toot at issue in the instant case. Northpointe argues that it is uniqueiy positioned to discuss the history, accuracy, and ef?cacy of COMPAS, as well as the use of actuarial risk needs assessments across the criminal justice continuum, and may bring to the court?s attention certain issues and points of law that may assist the court in reaching its decision on the merits 115 i surmise that the court may be denying this motion because, as the developer of COMPAS, Northpointe, inc. woaid have an interest in promoting its product and might bene?t or be harmed financiaily by the court's writing on COMPAS in State v. Loomis. Northpointe does not, however, appear to have a specific interest in the circuit court?s decision about the sentence to be imposed on this particuiar defendant, Eric Loomis. tie in addition to Nozthpointe?s ?nancial interest, it ciaims the software is proprietary information. wouid not necessarily deny a motion to an amicus brief because the movant has a financiai or other interest in the subject matter of the case or because of the claim of the software's proprietary nature. Amici generaily have a strong interest in a case or an important stake in an outcome. Why else wonici a person or entity take the time and trouble to seek amicus status? 118 The propriety of using COMPAS and risk assessment instruments to reach evidence~based decisions is an emerging area of the law. COMPAS risk assessment instruments present issues that are novei, technical, andcompiex. The court's decision in the instant case may affect far more peopie than the parties. 119 The briefs of both parties cite to reference materiais relating to COMPAS, risl<~ needs assessment, and evidence?based sentencing. Why cannot an amicus brief by Northpointe play the same role as the citations in the briefs to reference books or articles by Northpointe or about Northpointes The court knows of Nortbpointe?s ?nanciai and proprietary interests and can take these into account in evaiuatin Northpointe?s amicns brief. 1th Judges across the country disagree regarding the merits of stations briefs or the approach a court shoaid take to requests to file ainicus briefs. Compare, 9g? fudge Richard Posner's Views expressed: in Voices for Choice V. 111. Belt. Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003) (generaliy Viewed as hostile to amicus briefs), with then-fudge Samuei Aiitos Views expressed in Neonatology Assocs P. ..A C. Luis 293 3d 128, Z33 (3d Cir 2002} (generaily viewect as more friend} toward amicus briefs). No. Page 3 March 11, 20% No. 2015AP157-CR State v. Loomis ii 1. '1 Much has been written about ainicus briefs and risk assessments. For discussions of amicos briefs or risk assessment tools, gee, 9g, Cecelia Kiingeie, The Premises and. Perils of Evidence Based. Corrections, 9i Notre Dame L. Rev. 537 (2015); Lawrence S. Edner Rabin S. Conrad, Making Strategic Use of Amions Briefs, For the Defense (Oct. 2015); Mary?hristine Songaiia, Arnicus Briefs: How to Write Thorn. When to Ask for Them, GP Soio (Sept/Oct. 2015); Michaei K. Lowman, The Litigation Amicus Curiae: When Does the Partv Begin After the Friends Leave?, 41 Ana. U. L. Rev. 1243 (1992); Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, '72 Yale 694 (1963); Andrew Frey, Alnici Curiae: Friends of the Court or Nuisances?. Litig, Fail 2006, at 5; i?hilip B. Kurland Dennis J. Hutchinson, Friends Like These . . . Am. Bar. Ass?n J., Aug. i984, at 1.6; Joseph Fred Benson, The Ocurt Needs its Friends, Am. Bar. 1, Aug. 1984, at Neal Nettesheirn Clare Ryan, Friend of the Court Briefs: What the Curiae Wants in an. Amicus, Wis. Lawyer, May 2007, at 31; Judith S. Kaye, An invitation to "Friends?. Dec. 23, 1988, at fliZ My analysis of this court's orders accepting and rejecting arnicus briefs over the years is that they generaiiy do not explain the court's decision; they do not guide lawyers and other interested persons in tiling amicus briefs in future cases; and they do not provide the benefit of reasoned decisions so that the court can be thoughtful and consistent in its approach to amicns briefs. ?[13 The court should, in my opinion, take a more expansive view to granting motions to file an amicus brief. A court can use all the help it can get. An amicus may have particular expertise and may present a perspective that the parties cannot or wili not advocate. i agree with Judge Samuei Aiito (new Soprerne Court Justice Samuel Alito} in writing that requiring arnici to be iimited to persons or entities that are impartial or disinterested ?is contrary to the fondamentai assumption of our adversary system that strong (but fair) advocacy on behalf of opposing views promotes sound decision making." Neonatology Assocs., 293 F.3d at i3i. ?irt The court knows of Northpointe's financiai and proprietary interests. if the - amicns brief proves useless to the court, the court can easily set it aside. ?liS In ciosing, I write to object once again to uniiatera'i directives imposed by one member of the court on a justice's separate writings. For my prior writings obiecting to this practice, see my dissent to the December 4, 2015 tinpiibiished order of fear justices setting a deadline for motions to intervene in the John Doe trilogy; my concurrence/dissent to the January 3.2, 20i6 nnpabiished order of four justices granting the motion of three district attorneys to intervene in the John Doe triiogy; my separate writings in the unpublished orders granting review in three cases, State v. Finiev, No. Wis. Carrv v. Citv of Madison, No. and Regency West Ants. v. Citv of Racine. bio. my concurrence/dissent in In re Disciplinarv Proceedings Against Roitburd; 203.5 WI i, NBS-54, Wis. 2d m, and my concurrence/dissent to the March 8, 2016 order denying iodicial notice in Ciark v. Arn. Cvanarnid (30., No. . No. Page 4 March 11, 2016 No. State V. Loomis $116 As 1 have o?en written, 1 favor deadlines for writings ofjustiees and staff. But deadlines shouid be imposed by the court and uniformly and oonsistentiy appiied? For the reasons set forth, I dissent and would grant the request to ?ie an amieus brief. Presser, I, dissents and wouid grant the motion. Diane M. Fremgen C?erk of Supreme Court No. ATTACHMENT OFFICE or ?rare CLERK Sumatra Qatari at 110 EAST MAIN STREET, SUITE 23.5 RO. Box 1638 MADISON, 53701?1688 (688) 266-1380 (608) 267?0640 We]: Site: mvw.wicourts.gnv May 19, 2016 To: Hon. Richard Sankovitz Donald H. Carlson Milwaukee County Circuit Court Judge Crivello Carlson SIT. 82} W. State St. 710 N. Ave, Ste. 500 Milwaukee, WI 53233 Milwaukee, WI 53203 John Barrett Stephen .F. MoManus Milwaukee County Clerk of Circuit Court MoManus Associates LLC 90} N. 9th St, Rm. (38 12700 W. Bluemoond Rd, Ste. 139 Milwaukee, WI 53233 Eire Grove, W153122 Timothy A. Basoom *Additionai Parties Eisted on Page Three Baseom, Budish Cemao, S.C. 2600 North Mayfair Rd, #1140 Milwaukee, WI 53226 You are hereby noti?ed that the Court has entered the following order: No. 76 Brenner v. National Casealtr Comoanv The court having considered the motion of Charles P. Dykman for ieave to ?le nonvparty briefamieus curiae; IT 18 ORDERED that the motion is denied. DAVID T. PROS-SEE. and REBIECCA G. BRADLEY, I did not participate. SEEIRLEY S. ABRAHAMSON, (dissenting). The court issues an order denying Charles motion to ?le an amieos brief under Wis. Stat. i wouid grantthe motion and would grant the Brenners? reqoest to respond to the amieus brief. Once again, the offers no exp'ianation of its order to assist this movant or future movants. No. Page Two May 19, 2616 No. 2014AP2376 Brenner V. National Casualty Company The requirements set forth in Wis, Stat. 809.190) governing amicus briefs are reiatively few. Michael S. Hefiernan, Appellate Practice and Procedure in Wisconsin, ch, 11, at 25?26 (2015). The motion in the instant case meets these requirements. That Charles Dyieman has no iegaily cogniaabie interest in the case does not bar him from ?ling an amicus brief. indeed sometimes such an interest may be a barrier to ?iing an amicus brief. State v. Loomis, No. unpubiished order dated Mar. 11., 2016 (Abrahamson, J., dissenting). i recognize that the amicus brief would. raise issues that the parties did not address. We recently allowed such an amicus brief in Coyne v. Walker, No. unpublished order dated Sept. 22, 2015; see also unpublished order dated Oct. 1, 2015. Judges across the country disagree regarding the merits of amicus briefs or the approach a court should take to requests to tiie amicus briefs. Compare, cg, Judge Richard Posner?s Views expressed in Voices for Choice v. 111. Bell. Tel. Co, 339 F.3d 542, 545 (7th Cir. 2003) (generally viewed as hostile to amicus briefs), with thennlodge Samuel Alito?s Views expressed in Neonatoiogy Assocs. PA. v. C.1.R.. 293 F.3d 123, 133 (3d Cir. 2002) (generaily viewed as more friendly toward amicus briefs). My analysis of this court's orders accepting and rejecting arnicus briefs over the years is that the orders generally do not explain the court's decision; they do not guide iawyers and other interested persons in filing amicus briefs in future cases; and they do not provide the bene?t of reasoned decisions so that the court can be thoughtful and consistent in its approach to arnicos briefs. The court should, in my opinion, take a more expansive View to granting motions to file an amicus brief. A court can use alt the heip it can get. An amicus may have particular expertise and may present a perspective that the parties cannot or will not advocate. Much has been written about amicus briefs. For discussions of arnicus briefs, see, Lawrence S. Edner 82. Rubin S. Conrad, Making Strategic Use of Amicus Briefs. For the Defense (Oct. 2015); Mary~Christine Sungaiia, Arnicos Briefs: How to Write Them. When to Ask for Them, GP Solo (Sept/Oct. 2015); Michaei K. 'Lowrnan, The Litigation Amicus Curiae: When Does the Party Begin After the Friends Leave?. 41 Am. U. L. Rev. 1. 243 (1992); Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy. 72 Yale 694 (1963); Andrew Frey, Arnici Curiae: Friends of the Court or Nuisances?, Litig, Fall 2006, at Philip'B. Kuriand Dennis J. Hutchinson, With Friends Like These . . ., Am. Bar. Ass'n 1, Aug. 1984, at 16; Joseph Fred Benson, The Court Needs its Friends, Am. Bar. Ass'n 3., Aug. 1984, at 16; Neal Nettesheim Clare Ryan, Friend of the Court Briefs: What the Curiae Wants in an Arnicus. Wis. Lawyer, May 2007, at ii; Judith S. Kaye, An'invitation to ?Friends?. N.Y.LJ., Dec. 28, 1988, at 1. Page Three May 19, 2016 No. Ne. 2014AP2376 Brewer V. National Casuaitv Company For the reasons set forth, I dissent and would grant the request to ?le at} amieus brief. *Additional Parties: Bryan I. Paradise Hennessy 86 Reach PC 4E4 E. Walnut St, Ste. 200 Green Bay, WI 54301-5020 Pamela M. Schmidt - Scopelitis Garvin Light Hanson Peary 330 IE. Kilbeurn Ave, Ste. 827 Milwaukee, WI 53202 Charles 46} Tonyawatha Trail Menona, WI 53716 Diane M. Fremgert Clerk of Supreme Court Timothy S. Habush, l-"iabush Rettier, S.C. 777 E. Wisconsin Ave, #2300 Milwaukee, WI 53202?5302 Susan. R. Tyndall Habush Habush Rettier, S.C. N14 W23755 Stone Ridge.13r., Ste. 100 - Waukesha, WI 53 188~1 E47 No. ssa