What should be the role of Computer Algorithms in Sentencing?
Sent to Prison by a Software Program’s Secret Algorithms
By ADAM LIPTAK MAY 1, 2017
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.
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.”
The Wisconsin Supreme Court ruled against Mr. Loomis. The report added valuable information, it said, and Mr. Loomis would have gotten the same sentence based solely on the usual factors, including his crime — fleeing the police in a car — and his criminal history.
At the same time, the court seemed uneasy with using a secret algorithm to send a man to prison. Justice Ann Walsh Bradley, writing for the court, discussed, for instance, a report from ProPublica about Compas that concluded that black defendants in Broward County, Fla., “were far more likely than white defendants to be incorrectly judged to be at a higher rate of recidivism.”
Justice Bradley noted that Northpointe had disputed the analysis. Still, she wrote, “this study and others raise concerns regarding how a Compas assessment’s risk factors correlate with race.”
In the end, though, Justice Bradley allowed sentencing judges to use Compas. They must take account of the algorithm’s limitations and the secrecy surrounding it, she wrote, but said the software could be helpful “in providing the sentencing court with as much information as possible in order to arrive at an individualized sentence.”
Justice Bradley made Compas’s role in sentencing sound like the consideration of race in a selective university’s holistic admissions program. It could be one factor among many, she wrote, but not the determinative one.
In urging the United States Supreme Court not to hear the case, Wisconsin’s attorney general, Brad D. Schimel, seemed to acknowledge that the questions in the case were substantial ones. But he said the justices should not move too fast.
“The use of risk assessments by sentencing courts is a novel issue, which needs time for further percolation,” Mr. Schimel wrote.
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.
The company that markets Compas says its formula is a trade secret.
“The key to our product is the algorithms, and they’re proprietary,” one of its executives said last year. “We’ve created them, and we don’t release them because it’s certainly a core piece of our business.”
Compas and other products with similar algorithms play a role in many states’ criminal justice systems. “These proprietary techniques are used to set bail, determine sentences, and even contribute to determinations about guilt or innocence,” a report from the Electronic Privacy Information Center found. “Yet the inner workings of these tools are largely hidden from public view.”
In 1977, the Supreme Court ruled that a Florida man could not be condemned to die based on a sentencing report that contained confidential passages he was not allowed to see. The Supreme Court’s decision was fractured, and the controlling opinion appeared to say that the principle applied only in capital cases.
Mr. Schimel echoed that point and added that Mr. Loomis knew everything the court knew. Judges do not have access to the algorithm, either, he wrote.
There are good reasons to use data to ensure uniformity in sentencing. It is less clear that uniformity must come at the price of secrecy, particularly when the justification for secrecy is the protection of a private company’s profits. The government can surely develop its own algorithms and allow defense lawyers to evaluate them.
At Rensselaer last month, Chief Justice Roberts said that judges had work to do in an era of rapid change.
“The impact of technology has been across the board,” he said, “and we haven’t yet really absorbed how it’s going to change the way we do business.”