Wisconsin Supreme Court Approves Use of Risk Assessment Test in Sentencing

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2016

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The Supreme Court of Wisconsin ruled that judges in the state may consult a risk assessment algorithm in sentencing decisions.  The use of a risk identification tool during sentencing was challenged by a convicted criminal defendant, but Wisconsin’s High Court upheld use of the assessment with qualifications detailing when and how such instruments can be used in criminal sentencing across the state.

Wisconsin Judge Uses Risk Assessment Algorithm in Sentencing

During sentencing for defendant Eric Loomis, who plead no contest to stealing a car and fleeing an officer after he was connected to a drive by shooting, a Wisconsin judge incorporated a risk assessment analysis into his decision.  Loomis, 34, scored as high risk on an instrument known as COMPAS, which is a 137-question test designed to assess an offender’s risk of recidivism.  COMPAS scores defendants based on their criminal history, age, employment status, education, community associations, and drug and alcohol use history.  The instrument ultimately produces a risk category score that some judges across the country have incorporated into their sentencing decision.

COMPAS, which stands for Correctional Offender Management Profiling for Alternative Sanctions, is designed by Northpointe, Inc. and is administered to defendants after they are booked in jail.  The instrument scores the defendant’s risk of pretrial recidivism, general recidivism, and violent recidivism on scales of 1 – 10.  If the defendant either pleads guilty or is convicted, the COMPAS scores are presented to judges for use in determining the appropriate sentence.  Although Northpointe willingly shares the factors which contribute to a COMPAS score, the weight each factor contributes to the final score is a proprietary secret that the company refuses to release.  Northpointe maintains COMPAS was created using data-driven analysis of ex-offenders and recidivism, which has thus far proven sufficient evidence of its validity in legal jurisdictions across the country. 

Loomis was sentenced to serve a 6-year prison term based in part on his COMPAS scores, but appealed his sentence by arguing that because he did not know the precise manner in which his COMPAS score was calculated he was denied a constitutional right to challenge the legitimacy of the instrument. 

Wisconsin Supreme Court Upholds use of Risk Assessment tool in Sentencing

Due to the importance of the decision, Loomis’s appeal was fast tracked directly to the Wisconsin Supreme Court for an ultimate decision on whether or not judges in the state could use COMPAS, or any other risk assessment instrument, while determining a sentence.  In a unanimous 7 – 0 decision, the Court rejected Loomis’s appeal and supported the use of COMPAS during sentencing decisions in Wisconsin.  Justice Ann Walsh Bradley wrote the majority opinion which found value in risk assessment tools by saying, “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.”

While the Court established legal grounds for use of COMPAS, the Justices made sure to qualify their decision by reminding sentencing judges that there are limitations to the permissible reliance on pre-sentence risk assessment instruments.  Both the majority opinion and a concurring opinion written by Justice Patience Roggensack limited the use of COMPAS to one factor among many that judges must evaluate when considering sentencing.  According to the Wisconsin Supreme Court, risk evaluation algorithms like COMPAS cannot be the sole tool that judges use: other factors such as the nature of the crime and the evidence against the defendant must also be incorporated into a sentencing decision.

Wisconsin Ruling Adds to Growing Support for Risk Assessment Tools

The use of risk assessment tools is common among police officers, prisons, and probation departments to identify the best way to allocate limited services or resources.  City and state law enforcement officials across the country have been using various risk evaluation instruments for several years in order to determine which offenders or neighborhoods require the most attention in order to prevent future crime.  Although the practice has become somewhat ubiquitous in many areas of law enforcement, the use of risk assessment scores in sentencing is only gradually gaining steam.

States such as Pennsylvania, Utah, and Indiana have, along with Wisconsin, began to use pre-sentencing risk assessment tools to determine appropriate punishments, but these efforts have not been undertaken without resistance.  Defense attorneys and lawyers for the American Civil Liberties Union (ACLU) have argued that reliance on risk assessment tools may jeopardize a defendant’s constitutional right to confront evidence against him and to be fairly evaluated.  Opponents of risk assessment tools argue they display biases against men and minority defendants, and have demanded that companies which create the algorithms make the details of their calculations public.

Despite objections to risk assessment instruments during sentencing, the Wisconsin Supreme Court ruling seems to reflect a growing acceptance of the practice by members of the judiciary.  While the process is far from perfect, the continued integration of data-driven risk assessment into the criminal justice system suggests more states will begin to adopt pre-sentence risk analysis as a tool for judges to use during sentencing.


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