Algorithms in the Criminal Justice System: Assessing the Use of Risk Assessments in Sentencing
"In the summer of 2016, some unusual headlines began appearing in news
outlets across the United States. 'Secret Algorithms That Predict
Future Criminals Get a Thumbs Up From the Wisconsin Supreme Court,' read
one. Another declared: 'There’s software used across the country to
predict future criminals. And it’s biased against blacks.' These news
stories (and others like them) drew attention to a previously obscure
but fast-growing area in the field of criminal justice: the use of risk
assessment software, powered by sophisticated and sometimes proprietary
algorithms, to predict whether individual criminals are likely
candidates for recidivism. In recent years, these programs have spread
like wildfire throughout the American judicial system. They are now
being used in a broad capacity, in areas ranging from pre-trial risk
assessment to sentencing and probation hearings.
This paper focuses on the latest—and perhaps most concerning—use of
these risk assessment tools: their incorporation into the criminal
sentencing process, a development which raises fundamental legal and
ethical questions about fairness, accountability, and transparency. The
goal is to provide an overview of these issues and offer a set of key
considerations and questions for further research that can help local
policymakers who are currently implementing or considering implementing
similar systems. We start by putting this trend in context: the history
of actuarial risk in the American legal system and the evolution of
algorithmic risk assessments as the latest incarnation of a much broader
trend. We go on to discuss how these tools are used in sentencing
specifically and how that differs from other contexts like pre-trial
risk assessment. We then delve into the legal and policy questions
raised by the use of risk assessment software in sentencing decisions,
including the potential for constitutional challenges under the Due
Process and Equal Protection clauses of the Fourteenth Amendment.
Finally, we summarize the challenges that these systems create for law
and policymakers in the United States, and outline a series of possible
best practices to ensure that these systems are deployed in a manner
that promotes fairness, transparency, and accountability in the criminal
justice system."
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