Does the use of risk assessments in sentences respect the right to due process? A critical analysis of the Wisconsin v. Loomis ruling – 2018

On 13 July 2016, the Supreme Court of Wisconsin published a crucial decision which ruled for the first time ever about the constitutionality of using algorithms in sentencing. The ruling accepted their use, arguing that defendants’ right to due process was not violated by the mere fact that they could not gain access to an adequate explanation of the algorithm. To support this position, the Court stated that the accuracy of the tools and the capacity of the judges to understand their possible malfunctioning were enough to ensure the defendants’ rights. This article criticizes this ruling by unveiling the contradictions and misunderstandings involved in the rationale embedded in the sentence. As a consequence, it advocates the use of open source algorithms in our justice systems or, at least, in sentencing.

Iñigo De Miguel Beriain
Law, Probability and Risk, Volume 17, Issue 1, 1 March 2018