eDiscovery Daily Blog

• July 19, 2016

Score one for big data analytics.  According to The Wall Street Journal Law Blog, the Wisconsin Supreme Court ruled last week that sentencing judges may take into account algorithms that score offenders based on their risk of committing future crimes.

As noted in Court: Judges Can Consider Predictive Algorithms in Sentencing (written by Joe Palazzolo), the Wisconsin Supreme Court, in a unanimous ruling, upheld a six-year prison sentence for 34-year-old Eric Loomis, who was deemed a high risk of re-offending by a popular tool known as COMPAS (Correctional Offender  Management Profiling for Alternative Sanctions), a 137-question test that covers criminal and parole history, age, employment status, social life, education level, community ties, drug use and beliefs.

“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,” wrote Justice Ann Walsh Bradley of the Wisconsin Supreme Court.

During his appeal in April after pleading guilty to eluding an officer and no contest to operating a vehicle without the owner’s consent, Loomis challenged the use of the test’s score, saying it violated his right to due process of law because he was unable to review the algorithm and raise questions about it.  Loomis, a registered sex offender, had been then sentenced to six years in prison because his score on the COMPAS test noted he was a “high risk” to the community.

As part of the ruling, Justice Bradley ordered state officials to inform the sentencing court about several 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 crossvalidation 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.

And, the court also had guidance for how the scores should be used, as well:

“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.”

So, while the sentencing judge may take COMPAS scores into consideration, they can’t use it to justify making a sentence longer or shorter, or serve as the sole factor in determining whether someone should be sentenced to prison or released into the community.  As Judge Bradley wrote in her opinion, “Using a risk assessment tool to determine the length and severity of a sentence is a poor fit”.

So, what do you think?  Should algorithms that have a significant effect on people’s lives be secret?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.