Beyond More Accurate Algorithms: Takeaways from McCleskey Revisited
11 Pages Posted: 1 Sep 2023
Date Written: October 17, 2022
McCleskey v. Kemp operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration. But what if McCleskey had been decided differently? Could McCleskey have articulated an approach to equal protection doctrine that would have been capable of addressing the sophisticated and sometimes technologically advanced methods by which racial hierarchy is reinforced and protected in criminal administration today? It is with this question in mind that I reviewed Professor Mario Barnes’s rewritten McCleskey decision, which appears as a chapter in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law, edited by Professors Bennett Capers, Devon W. Carbado, R.A. Lenhardt, and Dean Angela Onwuachi-Willig. In this Review, I apply Professor Barnes’s framework to the current racial justice challenge of biased criminal legal risk-assessment algorithms. In so doing, I show how critical race theory, if taken seriously, provides a viable path toward addressing how algorithms uphold racism within criminal administration.
Keywords: Critical Race Theory, law and technology, race, criminal administration, criminal procedure,
JEL Classification: K19, K14, K42
Suggested Citation: Suggested Citation