On Point: 36. Sentencing

Last summer, SCOW held that, if used properly, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. See State v. Loomis and our post. Loomis filed a petition for writ of certiorari which presents this question for review:

State courts increasingly are relying on risk assessment instruments at sentencing. When the risk assessment instrument used is proprietary, as the Correctional Offender Management Profiling for Alternative Sanctions (“COMPAS”) software is, defendants have very little information about how the risk is analyzed. Is it a violation of a defendant’s constitutional right to due process for a trial court to rely on such risk assessment results at sentencing:

a.  because the proprietary nature of COMPAS prevents a defendant from challenging the accuracy and scientific validity of the risk assessment; and

b.  because COMPAS assessments take gender and race into account in formulating the risk assessment?

SCOTUS ordered the State of Wisconsin to respond to the petition, which according to this study, happens in maybe 2-3% of cases. But today SCOTUS took an even more unusual step by issuing a “CVSG”–a call for the views of the acting U.S. Solicitor General, even though the United States is not a party to Loomis v. Wisconsin.

Travis Beckless v. United States, USSC No. 15-8544, 2017 WL 855781 (March 6, 2017), affirming Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that provisions in the federal advisory sentencing guidelines are not subject to vagueness challenges under the Due Process Clause.

Buck v. Davis, USSC No. 15-8049, 2017 WL 685534 (February 22, 2017), reversing and remanding Buck v. Stephens, 623 Fed. Appx. 668 (5th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

Buck was found guilty of capital murder. Under state law, the jury could impose a death sentence only if it found Buck was likely to commit acts of violence in the future. At sentencing Buck’s attorney called Walter Quijano, a psychologist, to give an opinion on that issue. Though the psychologist testified Buck probably would not engage in violent conduct, he also said that race is one factor in assessing a person’s propensity for violence and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death. The Supreme Court, by a 7-to-2 vote, holds Buck’s attorney was ineffective.

State v. Tabitha A. Scruggs, 2017 WI 15, affirming a published court of appeals decision; 2014AP2981-CR, 2/23/2017; case activity (including briefs)

On June 30, 2013, Wisconsin enacted its biennial budget bill. Among its provisions were changes to the DNA surcharge applied to criminal convictions in Wisconsin. The $250 surcharge became mandatory rather than discretionary for all felonies (rather than just a few as previously), and would now be applied on a per-count basis rather than once per case. The bill also created a new, mandatory $200-per-count surcharge for misdemeanors.

Eau Claire County v. Duane D. Collier, 2016AP366, District 3, 2/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Collier’s belated challenge to his 1992 civil forfeiture judgment for OWI 1st offense is foreclosed by City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738.

State v. Charles J. Hartleben, 2016AP1066-CR, District 3, 2/14/17 (not recommended for publication); case activity (including briefs)

A defendant is denied due process at sentencing where the author of his PSI is married to the DA who prosecuted him. State v. Suchocki. Ditto where a counselor who assessed the defendant for his PSI also treated his victim. State v. Stafford.  In these situations, bias on the part of the PSI writer or counselor is implied as a matter of law.  But here the court of appeals found no “implied bias” where the author of Hartleben’s PSI worked with probation agents who were Hartleben’s victims in an earlier case.

State v. Christopher Joseph Allen, 2017 WI 7, affirming a published court of appeals decision, 2014AP2840-CR, 2/9/17 ; case activity (including briefs)

State v. Leitner, 2002 WI 77, 253 Wis. 2d 449, 646 N.W.2d 341 held that a sentencing court may consider all facts underlying an expunged record of conviction provided those facts are not obtained from the expunged court records. This case extends Leitner by holding that a sentencing court may consider a defendant’s successful completion of probation in a prior case where his conviction was expunged pursuant to §973.015.

There is new research to  support a racial bias challenge to COMPAS. You may recall that last spring Pro Publica studied COMPAS scores for some 10,000 people arrested for crimes in Broward County, Florida and published its results. It found that black defendants were twice as likely to be incorrectly labeled as higher risk to reoffend than white defendants. And white defendants labeled low risk were far more likely to end up being charged with new offenses than blacks with comparably low COMPAS risk scores.

State v. Rachel M. Helmbrecht, 2017 WI App 5; case activity (including briefs)

A circuit court’s decision on whether to order expungement under § 973.015 involves the exercise of discretion, and therefore the general rules governing the proper exercise of discretion apply to the expungement decision.