Recall that SCOTUS recently ordered the Solicitor General to file an amicus brief on the question of whether Loomis’ petition for writ of certiorari should be granted or denied. Here is the SG’s amicus brief. It argues that “the use of actuarial risk assessments raises novel constitutional questions that may merit this Court’s attention in a future case.” Amicus Br. at 12. However, says the SG, Loomis is not a good vehicle for addressing th0se issues because, among other things:
(1) The Wisconsin Supreme Court approved the use of COMPAS “for narrow purposes only;” (2) Both the sentencing judge and the Wisconsin Supreme Court concluded that the trial court would have imposed the same sentence absent any consideration of the defendant’s COMPAS scores; and (3) The defendant’s sentence was not based on undisclosed information.
What would make a good test case? The SG says:
Although the use of actuarial risk assessments might raise issues of gender or racial bias, this case presents no occasion for the Court to address them . . . Petitioner argues, and the United States agrees, that principles of due process (and equal protection) protect a defendant from being sentenced based on an impermissible use of considerations such as race or gender. Pet. 17 (citing United States v. Traxler, 477 F.3d 1243, 1248 (10th Cir.), cert. denied, 552 U.S. 909 (2007)); see, e.g., Buck v. Davis, 137 S. Ct. 759, 775 (2017) (citing Zant v. Stephens, 462 U.S. 862, 885 (1983)); Pepper v. United States, 562 U.S. 476, 489 n.8 (2011). It is a serious constitutional question, however, the extent to which actuarial assessments considered at sentencing may take account of statistical differences for male and female offenders, such as, for example, in recidivism rates. That question may warrant the Court’s attention in the future in an appropriate case. This case, however, is not a suitable vehicle.
