State v. Loomis

Decision Date13 July 2016
Docket NumberNo. 2015AP157–CR.,2015AP157–CR.
PartiesSTATE of Wisconsin, Plaintiff–Respondent, v. Eric L. LOOMIS, Defendant–Appellant.
CourtWisconsin Supreme Court

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.

ON CERTIFICATION FROM THE COURT OF APPEALS

ANN WALSH BRADLEY

, J.

¶ 1 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 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 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 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 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 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 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 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, 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...

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