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CarlaDULACSecondEssay 3 - 11 Jan 2020 - Main.EbenMoglen
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META TOPICPARENT name="SecondEssay"
It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

Should the criminal justice system be governed by algorithms?

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 But in the American criminal justice system, predictive algorithms have been used to predict where crimes will most likely occur, who is most likely to commit a violent crime, who is likely to fail to appear at their court hearing, and who is likely to re-offend at some point in the future. When I heard about it, I was quite surprised since I am French and such tools don’t exist in our judicial system. I didn’t see the purpose and how machines could be “better” than humans. I think I would not rely on such a tool because I am the judge, and machines are flawed since they are made by humans.
What does "rely" mean, and why are we assuming that these are tools for judges? Systems being used to allocate police resources, shift by shift or in real time, may be predicting the need for policing on the basis of patterns in social activity that would not be evidence of any kind in a prosecution, but which would be "better" than other forms of resource management according to some metrics. Models predicting court appearance don't necessarily have to be designed to result in incarceration pending trial. Knowing as we do that there are interventions that will help to bring defendants to court, we can once again use pattern-analyzing software to help improve the allocation of resources for those interventions.

Having to judge-focused a view may be part of the problem. A criminal justice system has many parts, only a small one of which is judges. And making judicial determinations may be the object of the system, but is only one detail of its operation.

"Predictive algorithms," like "artificial intelligence" are pretentious phrases to describe computer programs that do pattern-matching. The form of matching involved is sophisticated, and the patterns exist in approximate and shifting forms in complex data, whether the data represent CAT images of lungs that might have tumors in them or train station crowds that might contain pickpockets, or train operation data that might make commuter rail services a little more efficient. Belaboring the strengths and weaknesses of the algorithms is not the same as making thoughtful public policy, no matter what the algorithms are about, or what their weaknesses are.

 And you, what would you do if you were a United States judge who has to decide bail for a black man, a first-time offender, accused of a non-violent crime. An algorithm just told you there is a 100 percent chance he'll re-offend. With no further context, what do you do? Would you rely on the answer provided by the algorithm, even if your personal thought leads you to another answer? Is the algorithm answer more reliable than your opinion? One could argue that the answer provided by the algorithm is based on 137 question-quiz. The questions are part of a software program called Correctional Offender Management Profiling for Alternative Sanctions: COMPAS.
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You might want to go back and look at Jerome Frank's 1949 argument in Courts on Trial about why computational judging is impossible. He was right then and nothing has changed, even though there were only a couple of digital computers in the world and no software to speak of when he wrote. But as I said, disproving the utility of algorithms for judging is trivial anyway: that's not what we need computer programs for in a justice system. So it would be better either to figure out what computational improvements we can make in the justice system and whether they are worth it, or look for other sources of injustice in the justice system, out of which we are unlikely to run, because—as you say—justice is a human project and we are very fallible.


Revision 3r3 - 11 Jan 2020 - 16:21:04 - EbenMoglen
Revision 2r2 - 06 Dec 2019 - 14:33:07 - CarlaDULAC
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