In 2016, the Supreme Court of Wisconsin affirmed an order that the use of risk assessment software for sentencing violated a defendant's right to due process. See, State of Wisconsin v. Loomis , 881 N.W.2d 749 (Wis. 2016). The software used the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS). Loomis was convicted for his role as a driver in a drive-by-shooting. He pled guilty. The Wisconsin Department of Corrections prepared a report which included bar charts generated with COMPAS showing the Defendant's risk for pretrial, general, and violent recidivism. The COMPAS assessment was referenced by the lower court at Loomis's sentencing. Loomis was sentenced to six years in prison and five years of extended supervision.
The Defendant's expert contended that because COMPAS was not designed to assist with sentencing, its use would lead a court to overlook a defendant's unique circumstances. COMPAS was designed to determine when individuals could remain in their communities rather than be incarcerated. The software's developer does not disclose how its software evaluates a person's risk for recidivism. The COMPAS training manuals state that it is not be used for sentencing.
The Wisconsin Court of Appeals certified two questions to the Supreme Court of Wisconsin:
1. Did the use of COMPAS at sentencing violate due process because the proprietary nature of the software prevents the Defendant from challenging its scientific validity?
2. Did the use of COMPAS at sentencing violate due process because the software took gender into account?
The Supreme Court of Wisconsin held that COMPAS risk scores could be used in sentencing because they were not the determinative factor in deciding if Loomis could be supervised in a local community and because the defense could challenge the scores. It was also found that Loomis did not meet the burden of showing that the court relied on his gender in issuing its sentence.
The Supreme Court of Wisconsin did however find that a court cannot rely on COMPAS in order to determine whether a defendant is incarcerated or to decide the length of his sentence. A court must explain the other factors in addition to the COMPAS risk assessment that it uses in sentencing. A presentencing investigation report should inform the court that how COMPAS weighs certain factors is proprietary; the scores rely on group data; studies of COMPAS show they may disproportionately classify minorities as having a risk for recidivism; COMPAS uses a national sample, without having a Wisconsin specific study; and COMPAS was not specifically developed for the purpose of sentencing.
The Supreme Court of the United States denied a petition for a writ of certiorari. See, Loomis v. Wisconsin, 137 S.Ct. 2290 (2017)