The Wisconsin Supreme Court held yesterday that the use of risk assessment measures in sentencing decisions does not violate due process as long as certain precautions are undertaken. The case involves the use of COMPAS, a common measure used in many states to help guide sentencing decisions.
There's much to mull on in this decision and plenty of commentary will likely be forthcoming, but one aspect deserves consideration. The defendant, Eric Loomis, challenged the measure based on its use of gender in arriving at its conclusion that he posed a high risk of recidivism. As the decision highlights, it is not apparent how gender is calculated by COMPAS because the calculations are considered proprietary and are not disclosed. The parties disagree whether gender is used as a criminogenic factor or merely for statistical norming, yet both agree that it is well known that men commit a disproportionate amount of crime.
There's much to mull on in this decision and plenty of commentary will likely be forthcoming, but one aspect deserves consideration. The defendant, Eric Loomis, challenged the measure based on its use of gender in arriving at its conclusion that he posed a high risk of recidivism. As the decision highlights, it is not apparent how gender is calculated by COMPAS because the calculations are considered proprietary and are not disclosed. The parties disagree whether gender is used as a criminogenic factor or merely for statistical norming, yet both agree that it is well known that men commit a disproportionate amount of crime.
In reaching its conclusion that COMPAS does not violate due process by using gender (NB: Loomis did not bring an Equal Protection claim) the court highlights its previous decision in State v. Harris, 786 N.W. 2d 409 (2010) alluding to the holding there that a factual basis besides gender may justify a sentence when gender is considered. It then states:
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. (at 35).There is no question that including gender in a risk assessment improves its accuracy but it does so solely because being a man places one in a group that is statistically more likely to commit crime. Gender is a criminogenic factor, although obviously not all men commit crimes. If you are scrutinized as part of a risk assessment and you are a man, you have a "ding" against you and rightfully so. Whether that is impermissible constitutional discrimination is above this reader's pay grade for today.
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