The Intersection of Race and Algorithmic Tools in the Criminal Legal System

Abstract

A growing portion of the American public—including policymakers, advocates, and institutional stakeholders—have generally come to accept the fact that racism endemic to the United States infects every stage of the criminal legal system. Acceptance of that fact has led to efforts to address and remedy pervasive and readily observable systemic bias. Chief among those efforts is a turn toward technology—specifically algorithmic decision-making and actuarial tools. Many have welcomed the embrace of technology, confident that technological tools can solve a problem—race-based inequity—that has bedeviled humans for generations. This article engages that embrace by probing the adoption of technological tools at various sites throughout the criminal legal system and exploring their efficacy as a remedy to racial inequality. Then, by applying a racial justice lens, this article develops and offers a set of prescriptions designed to address the design, implementation, and oversight of algorithmic tools in spaces where the promise offered by technological tools has not been met. Adherence to that lens may draw us closer to what this article terms a pragmatic abolitionist ethos regarding the use of technological tools in the criminal legal system. Such an ethos does not mean the immediate absence of a criminal legal system altogether. It instead means a criminal system that ultimately operates in ways dramatically different from the current regime by divesting from incarceration and investing in community well-being, human welfare, and rehabilitation.

Keywords: algorithm, risk assessment, criminal justice, race, critical race theory