DILUTED
State v. Loomis
881 N.W.2d 749 (Wis. 2016) · 2016
Sentenced by a black box he was not allowed to inspect.
“A circuit court's consideration of a COMPAS risk assessment at sentencing does not violate a defendant's right to due process.”
The Ruling
The Wisconsin Supreme Court held that a sentencing court's use of the COMPAS risk-assessment algorithm did not violate due process, provided the score was not the determinative factor and the court was given a written advisement disclosing the tool's limitations. The Court acknowledged that COMPAS is proprietary, that defendants cannot inspect its underlying methodology, and that the tool's accuracy has been criticized — yet upheld its use. The U.S. Supreme Court denied certiorari, 137 S. Ct. 2290 (2017).
The Personhood Argument Not Made
Loomis is the cleanest American articulation of algorithmic personhood-displacement. The defendant's juridical personhood at sentencing — his right to confront the evidence against him, to know how the State's risk judgment was constructed, to have his individual circumstances weighed — is partially transferred to a proprietary scoring engine whose internals are protected as a trade secret of a private corporation (Northpointe, now Equivant). The court receives the score; the defendant receives the sentence; neither receives the source code. This is the cloud-fief operating inside the courthouse: the lord's instrument adjudicates, and the sovereign borrows its judgment.
The Execution Gap Created
Pretrial risk-assessment algorithms were in use in jurisdictions covering an estimated 47 states for at least one stage of the criminal process by 2019 (Mapping Pretrial Injustice, MediaJustice & Pretrial Justice Institute, 2020). ProPublica's 2016 analysis of COMPAS in Broward County, Florida, found the tool was nearly twice as likely to falsely flag Black defendants as future criminals than white defendants (Angwin et al., "Machine Bias," ProPublica, May 23, 2016). The formal due-process right to a fair sentencing hearing persists; the operational right to interrogate the algorithm shaping it does not.
Primary sources & research
Related cases
Part of The Personhood Prism, the companion to The Execution Gap by Thomas William Hornig. See all personhood cases →