Sentences of Convicted Criminals Being Determined by Secret Computer Programs

No, It is Not Something Ought of Kafka, It is in the United States

After a person is convicted of a crime they are sentenced to pay fines, go on probation or go to prison, or a combination of all three.  The sentence is determined by a judge using guidelines and experience.  But in America today a new tool, computer analysis of the criminal is being introduced.

Now there is nothing wrong with this except in Wisconsin the computer analysis is secret, its workings and logic and factors unknown to the court and the defendant.  Eric Loomis was convicted and then this happened.

“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.

In March, in a signal that the justices were intrigued by Mr. Loomis’s case, they asked the federal government to file a friend-of-the-court brief offering its views on whether the court should hear his appeal.

The report in Mr. Loomis’s case was produced by a product called Compas, sold by Northpointe Inc. It included a series of bar charts that assessed the risk that Mr. Loomis would commit more crimes.

The Compas report, a prosecutor told the trial judge, showed “a high risk of violence, high risk of recidivism, high pretrial risk.” The judge agreed, telling Mr. Loomis that “you’re identified, through the Compas assessment, as an individual who is a high risk to the community.”

Because the company producing the report was a private company, it argued it did not have to reveal the logic in its program, and the Wisconsin appeals process upheld that thinking.  In arguing against taking the case to the Supreme Court Wisconsin said this.

“He added that Mr. Loomis “was free to question the assessment and explain its possible flaws.” But it is a little hard to see how he could do that without access to the algorithm itself.”

If this sounds like a horror story, it is.  And one would hope that conservatives on the Supreme Court would be true to their calling and strike down this odious perversion of a justice system.  But that would require them to stand with defendants and their principles may not be strong enough for them to do that.