There are a plethora of computer programs that drive the quest for “evidenced based sentencing.” Given what we know about implicit bias, it is hard to ague that judges cannot benefit from checks on or aids to their judgment. Yet there are pitfalls, not the least of which is that the aide to judgment becomes a substitute for judgment.
When Chief Justice John G. Roberts Jr. visited Rensselaer Polytechnic Institute last month, he was asked a startling question, one with overtones of science fiction. “Can you foresee a day,” asked Shirley Ann Jackson, president of the college in upstate New York, “when smart machines, driven with artificial intelligences, will assist with courtroom fact-finding or, more controversially even, judicial decision-making?” The chief justice’s answer was more surprising than the question. “It’s a day that’s here,” he said, “and it’s putting a significant strain on how the judiciary goes about doing things.” He may have been thinking about the case of a Wisconsin man, Eric L. Loomis, who was sentenced to six years in prison based in part on a private company’s proprietary software. Mr. Loomis says his right to due process was violated by a judge’s consideration of a report generated by the software’s secret algorithm, one Mr. Loomis was unable to inspect or challenge.