Should a Court Rely on the Proprietary Algorithm of an Artificial Intelligence System to Make a Sentencing Decision?
Authors: Effoduh Jake Okechukwu 
Published: October 2023

<p>[First paragraph]: "The State contends that Loomis was the driver in a drive-by shooting. It charged him with five counts, all as a repeater: (1) First-degree recklessly endangering safety (PTAC); (2) Attempting to flee or elude a traffic officer (PTAC); (3) Operating a motor vehicle without the owner’s consent; (4) Possession of a firearm by a felon (PTAC); (5) Possession of a short-barreled shotgun or rifle (PTAC). Loomis denies involvement in the drive-by shooting. He waived his right to trial and entered a guilty plea to only two of the less severe charges, attempting to flee a traffic officer and operating a motor vehicle without the owner’s consent. The plea agreement stated that the other counts would be dismissed but read in. After accepting Loomis’s plea, the circuit court ordered a presentence investigation. The Presentence Investigation Report (“PSI”) included an attached COMPAS risk assessment. Loomis’s COMPAS risk scores indicated that he presented a high risk of recidivism on all three bar charts. His PSI included a description of how the COMPAS risk assessment should be used and cautioned against its misuse, instructing that it is to be used to identify offenders who could benefit from interventions and to target risk factors that should be addressed during supervision. The PSI also cautions that a COMPAS risk assessment should not be used to determine the severity of a sentence or whether an offender is incarcerated. At sentencing, the State argued that the circuit court should use the COMPAS report when determining an appropriate sentence. Ultimately, the circuit court referenced the COMPAS risk score along with other sentencing factors in ruling out probation. In addition to the COMPAS assessment, the circuit court considered the read-in charges at sentencing. 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. This Loomis said he understood. 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. Loomis filed a motion for post-conviction relief requesting a new sentencing hearing. He argued that the circuit court’s consideration of the COMPAS risk assessment at sentencing violated his due process rights. Loomis further asserted that the circuit court erroneously exercised its discretion by improperly assuming that the factual bases for the read-in charges were true. The circuit court held two hearings on the post-conviction motion. At the second hearing, the circuit court addressed the due process issues. The defendant offered the testimony of an expert witness, Dr. David Thompson, regarding the use at sentencing of a COMPAS risk assessment. Dr. Thompson opined that a COMPAS risk assessment should not be used for decisions regarding incarceration because a COMPAS risk assessment was not designed for such use. According to Dr. Thompson, a circuit court’s consideration at sentencing of the risk assessment portions of COMPAS runs a “tremendous risk of over estimating an individual’s risk and… mistakenly sentencing them or basing their sentence on factors that may not apply…” Dr. Thompson further testified that sentencing courts have very little information about how a COMPAS assessment analyzes the risk. 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 the Supreme Court of Wisconsin."</p>