ARGUMENT: April 5, 2016
CERTIFICATION FROM THE COURT OF APPEALS
OF APPEAL: COURT: CIRCUIT COUNTY: LA CROSSE NO. 2012CF75,
2013CF98 JUDGE: SCOTT L. HORNE
from an order of the circuit court.
the defendant-appellant, there were briefs by Michael D.
Rosenberg and Community Justice, Inc., Madison, and oral
argument by Michael D. Rosenberg.
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.
WALSH BRADLEY, J.
In 2007, the Conference of Chief Justices adopted a
resolution entitled "In Support of Sentencing Practices
that Promote Public Safety and Reduce
Recidivism." It emphasized that the judiciary "has
a vital role to play in ensuring that criminal justice
systems work effectively and efficiently to protect the
public by reducing recidivism and holding offenders
accountable." The conference committed to "support
state efforts to adopt sentencing and corrections policies
and programs based on the best research evidence of practices
shown to be effective in reducing
Likewise, the American Bar Association has urged states to
adopt risk assessment tools in an effort to reduce recidivism
and increase public safety. It emphasized concerns relating
to the incarceration of low-risk individuals, cautioning that
the placement of low-risk offenders with medium and high-risk
offenders may increase rather than decrease the risk of
recidivism. Such exposure can lead to negative
influences from higher risk offenders and actually be
detrimental to the individual's efforts at
Initially risk assessment tools were used only by probation
and parole departments to help determine the best supervision
and treatment strategies for offenders. With nationwide
focus on the need to reduce recidivism and the importance of
evidence-based practices, the use of such tools has now
expanded to sentencing. 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
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. The concerns
we address today may very well be alleviated in the future.
It is incumbent upon the criminal justice system to recognize
that in the coming months and years, additional research data
will become available. Different and better tools 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
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. Petitioner, Eric L. Loomis, appeals the
circuit court's denial of his post-conviction motion
requesting a resentencing hearing.
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 nature of COMPAS prevents defendants
from challenging the COMPAS assessment's scientific
validity, or because COMPAS assessments take gender into
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 court erroneously exercised its
discretion by assuming that the factual bases for the read-in
charges were true.
Ultimately, we conclude that if used properly, observing the
limitations and cautions set forth herein, a circuit
court's consideration of a COMPAS risk assessment at
sentencing does not violate a defendant's right to due
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 be supervised safely and
effectively in the community. 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.
Accordingly, we affirm the order of the circuit court denying
Loomis's motion for post-conviction relief requesting a
The facts of this case are not in dispute. The State contends
that Loomis was the driver in a drive-by shooting. It charged
him with five counts, all as a repeater: (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 by a felon (PTAC); (5) Possession of a short-barreled
shotgun or rifle (PTAC).
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 operating a motor vehicle without the owner's
consent. The plea agreement stated that the other counts
would be dismissed but read in:
The other counts will be dismissed and read in for
sentencing, although the defendant denies he had any role in
the shooting, and only drove the car after the shooting
occurred. The State believes he was the driver of the car
when the shooting happened.
The State will leave any appropriate sentence to the
Court's discretion, but will argue aggravating and
accepting Loomis's plea, the circuit court ordered a
presentence investigation. The Presentence Investigation
Report ("PSI") included an attached COMPAS risk
COMPAS is a risk-need assessment tool designed by
Northpointe, Inc. to provide decisional support for the
Department of Corrections when making placement decisions,
managing offenders, and planning treatment. The COMPAS
risk assessment is based upon information gathered from the
defendant's criminal file and an interview with the
A COMPAS report consists of a risk assessment designed to
predict recidivism and a separate needs assessment for
identifying program needs in areas such as employment,
housing and substance abuse. The risk assessment portion of
COMPAS generates risk scores displayed in the form of a bar
chart, with three bars that represent pretrial recidivism
risk, general recidivism risk, and violent recidivism
risk. Each bar indicates a defendant's
level of risk on a scale of one to ten.
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.
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
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.
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.
At sentencing, the State argued that the circuit court should
use the COMPAS report when determining an appropriate
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.
Ultimately, the circuit court referenced the COMPAS risk
score along with other sentencing factors in ruling out
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, and the risk
assessment tools that have been utilized, suggest that
you're extremely high risk to re-offend.
In addition to the COMPAS assessment, the circuit court
considered the read-in charges at 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.
Although a review of the transcript of the plea hearing
reveals miscommunications and uncertainty 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 read-in 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.'"
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?
The plea questionnaire/waiver of rights form stated that the
maximum penalty Loomis faced for both charges was seventeen
years and six months imprisonment. The court sentenced him
within the maximum on the two charges for which he entered a
Loomis filed a motion for post-conviction relief requesting a
new sentencing hearing. He argued that the circuit
court's consideration of the COMPAS risk assessment at
sentencing violated his due process rights. Loomis further
asserted that the circuit court erroneously exercised its
discretion by improperly assuming that the factual bases for
the read-in charges were true.
The circuit court held two hearings on the post-conviction
motion. At the first hearing, the circuit court addressed
Loomis's claim that it had erroneously exercised its
discretion in how it considered the read-in charges.
Considering the relevant case law and legal standards, the
circuit court concluded that it had applied the proper
standard and denied Loomis's motion on that issue.
During the first post-conviction motion hearing, the circuit
court reviewed the plea hearing transcript and the sentencing
transcript and explained that it did not believe Loomis's
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
At the second hearing, the circuit court addressed the due
process issues. The defendant offered the testimony of an
expert witness, Dr. David Thompson, regarding the use at
sentencing of a COMPAS risk assessment. 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. According to Dr.
Thompson, a circuit court's consideration 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 . . . ."
Dr. Thompson further testified that sentencing courts have
very 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 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
In denying the post-conviction motion, the circuit court
explained that it used the COMPAS risk 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.
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.
"This court reviews sentencing decisions under the
erroneous exercise of discretion standard." State v.
Frey, 2012 WI 99, ¶37, 343 Wis.2d 358, 817 N.W.2d
436. An erroneous exercise of discretion occurs when a
circuit court imposes a sentence "without the
underpinnings of an explained judicial reasoning
process." 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
Additionally, a sentencing court erroneously exercises its
discretion when its sentencing decision is not based on the
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 the law when it relies on
clearly irrelevant or improper factors. McCleary, 49 Wis.2d
at 278. The defendant bears the burden of proving such
reliance by clear and convincing evidence. State v.
Harris, 2010 WI 79, ¶3, 326 Wis.2d 685, 786 N.W.2d
In a similar manner we review the issue of whether a circuit
court erroneously exercises its discretion when it relies on
the factual basis of the read-in charge when fashioning the
defendant's sentence. Frey, 343 Wis.2d 358,
¶¶37-39. "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.
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.
Specifically, Loomis asserts that the circuit court's use
of a COMPAS risk assessment at sentencing violates a
defendant's right to due process for three reasons: (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 defendant's right to an individualized
sentence; and (3) it improperly uses gendered assessments in
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.
It is helpful to consider Loomis's due process arguments
in the broader context of the evolution of evidence-based
sentencing. Wisconsin has been at the forefront of advancing
evidence-based practices. In 2004, this court's Planning
and Policy Advisory Committee (PPAC) created a subcommittee
"to explore and assess the effectiveness of policies and
programs . . . designed to improve public safety and reduce
From that initial charge, Wisconsin's commitment to
evidence-based practices and its leadership role have been
well documented. 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
The question of whether COMPAS can be used at sentencing has
previously been addressed. 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 emphasized that
"COMPAS is merely one tool available to a court at the
time of sentencing." 359 Wis.2d 580, ¶13.
In Gallion we warned of ad hoc decision making at sentencing:
"Experience has taught us to be cautious when reaching
high consequence conclusions about human nature that seem to
be intuitively correct at the moment. Better instead is a
conclusion that is based on more complete and accurate
information . . . ." 270 Wis.2d 535, ¶36. We
encouraged circuit courts to seek "more complete
information upfront, at the time of sentencing. Judges would
be assisted in knowing about a defendant's propensity for
causing harm [and] the circumstances likely to precipitate
the harm . . . ." Id., ¶34.
Concern about ad hoc decision making is justified. A myriad
of determinations are made throughout the criminal justice
system without consideration of tested facts of any kind.
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.
The need to have additional sound information is apparent for
those working in corrections, but that need is even more
pronounced for sentencing courts. Sentencing decisions are
guided by due process protections that may not apply to many
run of the mill correctional decisions. This
distinction is of import given that the risk and needs
assessment tools were designed for use by those within the
Department of Corrections and that design is being
transitioned to a sentencing venue governed by different
In response to a call to reduce recidivism by employing
evidence-based practices, several states have passed
legislation requiring that judges be provided with risk
assessments and recidivism data at sentencing. Other states
permit, but do not mandate, the use of risk assessment tools
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).
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 sentence or whether an offender
is incarcerated." We are in accord with these
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.
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.
We turn to address Loomis's first argument that a circuit
court's consideration of a COMPAS risk assessment
violates a defendant's due process right to be sentenced
based on accurate information. Loomis advances initially that
the proprietary nature of COMPAS prevents a defendant from
challenging the scientific validity of the risk assessment.
Accordingly, Loomis contends that because a 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.
It is well-established that "[a] defendant has a
constitutionally protected due process right to be sentenced
upon accurate information." Travis, 347 Wis.2d 142,
¶17. Additionally, the right to be sentenced based upon
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).
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. The plurality opinion concluded that
the defendant "was 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." Id. at 362.
Following Gardner, the 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. 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, or supplement the PSI. Id. at 57.
Accordingly, until the defendant reviews his PSI, its
accuracy cannot be verified. Id. at 58.
Skaff reasoned that given the discretion accorded the circuit
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)).
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.
He argues that he is in the best position to refute or
explain 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 factors are weighed and how risk scores are
determined, the accuracy of the COMPAS assessment cannot be
Loomis's analogy to Gardner and Skaff is imperfect.
Although 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. At the heart of Gardner and Skaff is the
fact that the court relied on information the defendant did
not have any opportunity to refute, supplement or explain.
Gardner, 430 U.S. at 362. That is not the case here.
Loomis is correct that the risk scores do not explain how the
COMPAS program uses information to calculate the risk scores.
However, 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
The COMPAS report attached to Loomis's PSI contains a
list of 21 questions and answers regarding these static
factors such as:
• How many times has this person been returned to
custody while on parole? 5
• How many times has this person had a new charge/arrest
while on probation? 4
• How many times has this person been arrested before as
an adult or juvenile (criminal arrest only)? 12
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
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.
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.
Some states that use COMPAS have conducted validation studies
of COMPAS concluding that it is a sufficiently accurate risk
assessment tool. New York State's Division of
Criminal Justice Services conducted a study examining a
COMPAS assessment's recidivism scale's effectiveness
and predictive accuracy and concluded that "the
Recidivism Scale worked effectively and achieved satisfactory
predictive accuracy."Unlike New York and other
states, Wisconsin has not yet completed a statistical
validation study of COMPAS for a Wisconsin
However, Loomis relies on other studies of risk assessment
tools that have raised questions about their
accuracy. For example, he cites to a 2007
California Department of Corrections and Rehabilitation
("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."
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."Ultimately, the authors of the study
could not recommend that CDCR use COMPAS for
Subsequently, however, the CDCR published its 2010 final
report on California's COMPAS validation
study. The 2010 study concluded that although
not perfect, "COMPAS is a reliable instrument. . .
." 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.
In addition to these problems, there is concern that risk
assessment tools may disproportionately classify minority
offenders as higher risk, often due to factors that may be
outside their control, such as familial background and
education. Other state studies indicate that COMPAS
is more predictive of recidivism among white offenders than
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 than white defendants to be incorrectly judged to be
at a higher risk of recidivism." Likewise,
white defendants were more likely than black defendants to be
incorrectly flagged as low risk. Although Northpointe
disputes this analysis, this study and others raise concerns
regarding how a COMPAS assessment's risk factors
correlate with race.
Additional concerns are raised about the need to closely
monitor risk assessment tools for accuracy. 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. Id. at 577.
Focusing exclusively on its use at sentencing and considering
the expressed due process arguments regarding accuracy, we
determine that use of a COMPAS risk assessment must be
subject to ...