Show Me the Numbers: Due Process and Equal Protection Challenges to the Use of Risk Assessment Algorithms in the Pretrial Context

Abstract

Technology brings great advances; however, in the legal field, technology can become used as a tool to perpetuate racial bias. Risk assessment algorithms provide that threat since judges have come to rely on them in various contexts. However, in the pretrial context, judges face the risk of incarcerating an innocent person based on a numerical risk assessment score, which deprives the defendant of his or her individuality and possibly perpetuates the assumption that people of color commit more crimes. Therefore, incorporating a critical race theory framework, a Due Process challenge to the use of these tools exists in the right to effective assistance of counsel as these tools provide an unfair advantage to the prosecution by hampering the defense counsel’s ability to present a narrative. Furthermore, a potential Equal Protection challenge exists to tools that explicitly use gender as a factor. Although no Equal Protection claim exists for a disparate impact of these tools on minority populations, the disparate impact has important public policy considerations beyond Equal Protection in efforts to reduce crime and foster trust between the police and minority communities. Ultimately, the use of risk assessment algorithms must comply with the Constitution, and the stories of each individual defendant should always have the chance to be heard.

Keywords: law and technology, applied legal storytelling, narrativity, pretrial risk assessment algorithms, race and the law