                                                                  2016 WI 68

                  SUPREME COURT              OF      WISCONSIN
CASE NO.:               2015AP157-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Eric L. Loomis,
                                  Defendant-Appellant.

                             ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:          July 13, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 5, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              La Crosse
   JUDGE:               Scott L. Horne

JUSTICES:
   CONCURRED:           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
             Defendant-Appellant.                                   Clerk of Supreme Court




      APPEAL from an order of the circuit court.                  Affirmed.



      ¶1     ANN   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."1      It emphasized that the judiciary "has a vital role

to   play    in      ensuring   that   criminal         justice       systems        work


      1
       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        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

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         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.5          Such    exposure          can    lead    to     negative

influences            from    higher     risk       offenders           and     actually       be

detrimental to the individual's efforts at rehabilitation.6

       ¶3        Initially     risk    assessment          tools       were    used    only   by

probation        and    parole    departments         to    help       determine      the   best




       2
           Id.
       3
           Id.
       4
       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        strategies         for        offenders.7         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.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.      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


     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/Resolution-
7.ashx.
     9
       Casey,   Using  Offender   Risk   and   Needs                               Assessment
Information at Sentencing, supra note 7, at 1.
     10
       "COMPAS" stands for "Correctional                                Offender   Management
Profiling for Alternative Sanctions."


                                                 3
                                                                      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         Petitioner,       Eric   L.    Loomis,   appeals     the   circuit

court's   denial         of   his    post-conviction        motion    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        nature       of     COMPAS      prevents      defendants       from

challenging    the       COMPAS      assessment's     scientific      validity,    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      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 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       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.

    ¶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.                      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




                                      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    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
     mitigating factors.
After     accepting       Loomis's      plea,   the   circuit    court     ordered    a

presentence investigation.              The Presentence Investigation Report

("PSI") included an attached COMPAS risk assessment.

     ¶13     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.14                    The COMPAS risk




     13
          "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     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.15              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.16         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     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.

       ¶21     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.'"


                                                 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    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 plea.18

       ¶23    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.

       ¶24    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


       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      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.

       ¶25    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 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.            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 . . . ."

       ¶27    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
                                            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    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.

                                             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      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 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        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 409.

        ¶32 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.

                                               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       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
                                                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 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 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    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

     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."               359 Wis. 2d 580, ¶13.

       ¶39    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.

       ¶40    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.

       ¶41    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




                                               16
                                                                     No. 2015AP157-CR



apply to many run of the mill correctional decisions.22                             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 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        with     risk

assessments and recidivism data at sentencing.23                          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        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.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   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.



     25
       See Casey, Using Offender Risk and Needs                                 Assessment
Information at Sentencing, supra note 7, at 14.


                                          19
                                                                              No. 2015AP157-CR



       ¶47     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).

       ¶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.        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.

       ¶49     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.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
             Although Gardner v. Florida, 430 U.S. 349 (1977) was a
death       penalty case, State v. Skaff, 152 Wis. 2d 48, 55 447
N.W.2d      84 (Ct. App. 1989), determined that "we perceive no
reason       why its rationale should not be applied to penalties of
lesser      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    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)).

    ¶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    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




                                    21
                                                               No. 2015AP157-CR



factors are weighed and how risk scores are determined, the

accuracy of the COMPAS assessment cannot be verified.27

     ¶53     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.

     ¶54     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 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                 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
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              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."30

Unlike     New    York     and     other    states,     Wisconsin     has       not     yet

completed     a    statistical        validation       study    of   COMPAS      for     a

Wisconsin population.31

     ¶59    However,        Loomis     relies     on    other    studies        of     risk

assessment        tools     that     have    raised      questions     about          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-bias-
risk-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-the-
COMPAS-Risk-Assessment-Classification-Instrument.pdf.


                                            24
                                                                          No. 2015AP157-CR



accuracy.32            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."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    2010

final report on California's COMPAS validation study.36                         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       as    higher   risk,    often    due    to    factors    that    may    be

outside     their       control,       such     as     familial    background          and

education.39         Other state studies indicate that COMPAS is more

predictive       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 Evidence-
Based 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    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.

       ¶65    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 certain cautions in addition to the limitations

set forth herein.


       41
            Jeff
             Larson et al., ProPublica, How We Analyzed the
COMPAS     Recidivism      Algorithm     (May      23,     2016),
https://www.propublica.org/article/how-we-analyzed-the-compas-
recidivism-algorithm.
       42
            Id.
       43
            Northpointe, Inc., supra note 14, at 14.


                                         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        nature     of       COMPAS       has     been    invoked         to    prevent

disclosure of information relating to how factors are weighed or

how    risk   scores       are     to    be    determined;          (2)   risk       assessment

compares      defendants          to    a     national       sample,       but      no      cross-

validation         study    for    a     Wisconsin          population        has     yet       been

completed; (3) some studies of COMPAS risk assessment scores

have    raised      questions          about    whether       they      disproportionately

classify      minority       offenders          as        having    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        a        defendant        received        an

individualized sentence.                    As the defense expert testified at the

post-conviction            motion          hearing,      COMPAS      is    designed       to   assess

group     data.           He    explained        that     COMPAS      can    be    analogized       to

insurance actuarial risk assessments, which identify risk among

groups of drivers and allocate resources accordingly.

     ¶69        Similarly,           the     2015     Practitioner's             Guide   to    COMPAS

explains        that      "[r]isk          assessment         is    about    predicting         group

behavior . . . it               is    not     about      prediction         at    the    individual

level."44        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-at-
first-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    To     ameliorate      this    problem,        the    DOC     explains    that

"staff       are    predicted     to    disagree        with        an     actuarial    risk

assessment         (e.g.   COMPAS)     in    about     10%    of     the    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    However      the     due      process    implications          compel     us   to

caution      circuit      courts       that    because     COMPAS       risk     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    We turn now to address Loomis's argument that a COMPAS

risk   assessment's         use    of    gender       violates    a     defendant's          due

process rights.           Relying on Harris, 326 Wis. 2d 685, ¶33, Loomis

asserts      that       because    COMPAS       risk    scores     take       gender     into

account,      a   circuit        court's      consideration       of    a     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    exactly       how     COMPAS    uses


                                               31
                                                                         No. 2015AP157-CR



gender,     but     contends         that     COMPAS     considers       gender    as    a

criminogenic factor.             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     and       different      rehabilitation         potential,      a   gender

neutral     risk    assessment        would    provide       inaccurate    results      for

both men and women.

      ¶78    Both parties appear to agree that there is statistical

evidence     that     men,     on     average,       have    higher    recidivism       and

violent crime rates compared to women.                       Commentators also have

noted and discussed statistical evidence differentiating men and
women in this context.                See, e.g., Sonja B. Starr, Evidence-

Based     Sentencing          and     the     Scientific        Rationalization          of

Discrimination,          66   Stan.    L.     Rev.    803,    813     (2014)   ("if     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 . . . ");        John

Monahan, A Jurisprudence of Risk Assessment:                          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,     Loomis     asserts      that     even     if     statistical

generalizations       based   on    gender      are     accurate,      they    are    not

necessarily constitutional.              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   equal     protection     clause       of    the    Fourteenth

Amendment.         The Court explained that although state officials

offered sociological or empirical justifications for the gender-

based 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."                    Id. at 208-09.

      ¶80    Notably,     however,       Loomis   does     not      bring     an   equal

protection challenge in this case.                    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      misinterprets         Harris     in      arguing      that     a

sentencing      court    cannot     consider      a     COMPAS      risk    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.                             Id., ¶61.
                                          33
                                                                        No. 2015AP157-CR



Harris argued that he should not be penalized for being a stay-

at-home father and that the circuit court used this fact as an

aggravating factor when fashioning his sentence.                     Id.

       ¶82    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.                         Id., ¶¶62-

63.     The record revealed that Harris was not his daughter's

stay-at-home          primary    caregiver          and    that      other       factors

demonstrated that he was not a responsible father.                       Id., ¶63.

       ¶83    Likewise, there is a factual basis underlying COMPAS's

use of gender in calculating risk scores.                     Instead, 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,     Risk-Needs        Assessment:     Constitutional         and

Ethical Challenges, 52 Am. Crim. L. Rev. 231, 255 (Spring 2015).
Thus, if the inclusion of gender promotes accuracy, it serves

the    interests      of   institutions       and   defendants,         rather   than   a

discriminatory purpose.          Id.

       ¶84    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      bear       a   reasonable     nexus   to

proper sentencing factors."              Id., ¶67.

       ¶85   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        objectives.").             See    also       Harris      v.   State,     75

Wis. 2d 513,       519,    250      N.W.2d 7       (1977)          (relevant    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    actually         relied    on     gender      as   a   factor    in

sentencing.       Thus, we conclude that the use of the COMPAS risk

assessment at sentencing did not violate Loomis's right to due

process.

                                            VII

       ¶87    Next, we address the permissible uses for a COMPAS

risk    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                            Assessment
Information at Sentencing, supra note 7, at 8, 9, 13.


                                             36
                                                                         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       or     released       to   extended      supervision.54

Specifically,       it    may        inform        decisions     such    as   reporting

requirements,     drug     testing,       electronic           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                          Assessment
Information at Sentencing, supra note 7, at 14, 16.


                                              37
                                                                            No. 2015AP157-CR



sentencing     evidence    in    the        formulation          of    an   individualized

sentencing     program     appropriate             for        each     defendant."           See

Malenchick,     928   N.E.2d      at    573.             As    the     court     of     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       at

sentencing must be subject to certain limitations.                                    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        of   the

sentence or whether an offender is incarcerated."                               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    whether    the      offender          can    be     supervised       safely      and




    56
         Id. at 11.


                                             38
                                                                          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      was     not

designed to address all of the goals of a sentence.                            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.                    See State v. Dowdy, 2012 WI 12,

¶97,        338     Wis. 2d 565,           808    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    of    these         disparate      goals,   using     a     risk

assessment         tool     to    determine       the    length    and   severity       of   a

sentence is a poor fit.                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,       the   PSI

instructs that risk scores may not be used:                         (1) to determine

whether an offender is incarcerated; or (2) to determine the

severity of the sentence.               Additionally, risk scores may not be

used as the determinative factor in deciding whether an offender

can be supervised safely and effectively in the community.59

       ¶99    Importantly, a circuit court must explain the factors

in    addition      to    a   COMPAS    risk     assessment       that   independently

support the sentence imposed.                A COMPAS risk assessment is only

one    of    many   factors      that     may    be   considered     and    weighed    at

sentencing.

       ¶100 Any          Presentence        Investigation           Report       ("PSI")

containing a COMPAS risk assessment filed with the court must




       58
       John Monahan and Jennifer L. Skeem, Risk Assessment in
Criminal Sentencing, 12 Annual Rev. Clinical Psychol. 489, 492-
93.     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                        Assessment
Information at Sentencing, supra note 7, at 14.


                                            40
                                                                     No. 2015AP157-CR



contain       a   written      advisement        listing       the   limitations.60

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 high-

              risk 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 re-
              normed 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.                                  For example,

if   a    cross-validation             study     for    a    Wisconsin       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    argues      that   he    is    entitled       to    a    resentencing

hearing         because       the      circuit        considered       the        COMPAS      risk

assessment in imposing his sentence.                        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        acknowledged         that    he    would      not    be      challenging        the

sentence        imposed      if   it    were     devoid     of   any     reference       to   the
COMPAS risk assessment.                 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.                      The circuit court

here was aware of the limitations.                     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."                             The third

limitation,      that    a    COMPAS         risk     assessment        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   they    be   used      to    inform    courts     of    due    process

implications.      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     the    post-conviction           motion   hearing,       the   circuit

court    explained     that   it   used       the   COMPAS     risk     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        circuit    court      explained        that    it    considered    the

COMPAS    risk    assessment    as     "an      observation"        to    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.                          A review of the

sentencing       transcript    reveals        that     the       circuit     court    also

addressed     and      discussed     the     gravity        of     the     offense,    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       the    appropriate       factors      and        was    aware   of    the
limitations       associated       with      the     use     of    the     COMPAS     risk

                                           44
                                                                           No. 2015AP157-CR



assessment.         Ultimately, although the circuit court mentioned

the COMPAS risk assessment, it was not determinative in deciding

whether    Loomis        should       be    incarcerated,       the   severity       of   the

sentence       or       whether       he     could   be     supervised        safely      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      a    final    matter,       Loomis     argues     that    the    circuit

court     improperly        gave       undue     weight    to    read-in       charges     at

sentencing.         He asserts that not only did the circuit court

appear    to   misunderstand           the     difference      between     dismissed      and
read-in    charges,        but    it       improperly     assumed     that    the    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        process.            The   circuit     court       can    consider

uncharged      or       unproven       offenses      regardless       of     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    court, giving          them     appropriate       weight    and

describing      their       relationship       to     a    defendant's       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 read-

in 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.         However, the circuit court took a break from the

hearing    to    review       Frey    and     continued       the    hearing     under    the

proper framework.

       ¶116 Although          the      circuit        court     may     have      initially

misstated that under Frey there is no distinction between read-
in     charges        and     dismissed       charges,         the     circuit      court's
                                              46
                                                                    No. 2015AP157-CR



consideration       of    the   read-in    charges      was   not   an   erroneous

exercise of discretion.             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    it     would   consider     the     read-in     offenses    at

sentencing.       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    further     conclude       that   the      circuit    court's

consideration    of   the    read-in    charges    was   not   an     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.   2015AP157-CR.pdr


       ¶123 PATIENCE           DRAKE        ROGGENSACK,         C.J.      (concurring).          I

agree      with     much      of    the    majority       opinion's        discussion     and   I

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.                   Because at times the majority opinion

interchangeably            employs        consider      and     rely      when    discussing     a

sentencing court's obligations and the COMPAS risk assessment

tool,      our     decision         could      mistakenly       be     read      as   permitting

reliance on COMPAS.1                  Therefore, I write to clarify for the

reader.2

       ¶124 At sentencing, the circuit court is to consider three

primary      factors:              gravity     of   the    offense,        character     of   the

offender         and    the    need       to    protect       the      public.        State     v.

Alexander, 2015 WI 6, ¶22, 360 Wis. 2d 292, 858 N.W.2d 662.                                     A

circuit          court's      proper         exercise      of     sentencing          discretion

includes an individualized sentence based on the facts of the

case       and    may    include          explaining      how       the    sentence     imposed


       1
           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.    2015AP157-CR.pdr


furthers the circuit court's objectives.                       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).           It is through this articulation that we

determine    whether    the       circuit        court    properly         exercised       its

sentencing discretion.            Id.    Defendants have a due process right

not to be sentenced in reliance on improper factors such as on

race or gender.      Harris (Landray M.), 326 Wis. 2d 685, ¶33.

       ¶126 The      circuit        court's        consideration             of     various

sentencing    factors        is     afforded       a     "strong          presumption       of

reasonability      because        the    circuit       court    is    best        suited    to

consider    the    relevant       factors    and       demeanor      of    the    convicted

defendant."       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       by    sentencing          based   on

irrelevant or improper factors.                  Id., ¶17; Harris (Landray M.),

326    Wis. 2d 685,     ¶30.            In   addition,         any    reference       to    a

potentially       improper     sentencing         factor       is    reviewed       in     the




       3
       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    mentioned      the       defendant's

COMPAS risk assessment in passing.4                    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       circuit        courts    from       relying        on    COMPAS

assessments         when   imposing      sentence."7          The    majority         opinion

concludes       that    "if   used     properly       with    an    awareness         of   the

limitations and cautions, a circuit court's consideration of a

COMPAS       risk     assessment       at    sentencing       does        not    violate     a
defendant's right to due process."8                   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.                    Reliance

would violate due process protections.               Accordingly, I write to

clarify our holding in the majority opinion:                 consideration of

COMPAS   is    permissible;      reliance    on   COMPAS   for     the   sentence

imposed is not permissible.




                                         4
                                                                     No.   2015AP157-CR.ssa


       ¶130 SHIRLEY S. ABRAHAMSON, J.                     (concurring).       I join the

majority opinion.             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.                        It underscores that we are

addressing      the     use   of   a   research-based         tool    and    that     it   is

incumbent       upon     actors    in     the       criminal    justice       system       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.                         The denial was a

                                               1
                                                                 No.    2015AP157-CR.ssa


mistake.       The court needed all the help it could get.                             The

majority    opinion     considers     publications          by   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 evidence-

based 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    for    the    reentry       of    offenders    into       society,    he
cautioned    against     using     risk   assessment         tools     in   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           charges,     convictions,          and




                                              2
                                                          No.   2015AP157-CR.ssa


sentences   befitting   the   conduct      of    each   defendant     and   the

particular crime he or she commits."1

     ¶140 Attorney General Holder's concerns have been echoed in

other    studies.2   Additionally,       studies   differ       regarding   the

accuracy    of   COMPAS's     recidivism        (and    especially     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-holder-
moneyball-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-compas-
recidivism-algorithm; see also Julia Angwin et al., Machine
Bias,       Pro        Publica       (May        23,       2016),
https://www.propublica.org/article/machine-bias-risk-
assessments-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.   2015AP157-CR.ssa


recidivism) scores.3     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.    2015AP157-CR.ssa


utilized.      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        that     most   of    us    have        difficulty

understanding."4        One way of addressing these complexities is

taking a more expansive view toward accepting amicus briefs.

      ¶144 The      court    denied      Northpointe's       motion           to    file    an

amicus brief over my dissent.                   See Attachment A.                  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.                     The court could have

taken      Northpointe's         interests       into   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    have   not       been   consistent.      Perhaps          Northpointe's


      4
          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      persons       wishing     to    file     amicus

briefs in future cases.         The court should, in my opinion, take a
more   expansive     view    toward     granting        motions      to    file    amicus

briefs.

       ¶151 For    the     reasons      set      forth,    I     concur      and     write

separately.




                                           6
               No.   2015AP157-CR.ssa


ATTACHMENT A




     1
    No.   2015AP157-CR.ssa




2
    No.   2015AP157-CR.ssa




3
    No.   2015AP157-CR.ssa




4
               No.   2015AP157-CR.ssa



ATTACHMENT B




     5
    No.   2015AP157-CR.ssa




6
    No.   2015AP157-CR.ssa




7
    No.   2015AP157-CR.ssa




1
