Proctor : February 2018
33 PROCTOR | February 2018 by Richard Gifford, The Legal Forecast Notes 1 Hamilton, M. (2017). ‘We use big data to sentence criminals. But can the algorithms really tell us what we need to know?’ [online] The Conversation. Available at theconversation.com/we-use-big-data- to-sentence-criminals-but-can-the-algorithms- really-tell-us-what-we-need-to-know-77931 [Accessed 10 Nov. 2017]. 2 Watney, C. (2017). ‘It’s time for our justice system to embrace artificial intelligence.’ [online] Brookings. Available at brookings.edu/blog/ techtank/2017/07/20/its-time-for-our-justice- system-to-embrace-artificial-intelligence/ [Accessed 9 Nov. 2017]. 3 Ibid. 4 881 N.W.2d 749 (Wis. 2016). 5 Tashea, J. (2017). ‘Courts Are Using AI to Sentence Criminals. That Must Stop Now.’ [online] WIRED. Available at wired.com/2017/04/courts-using-ai- sentence-criminals-must-stop-now/ [Accessed 8 Nov. 2017]. 6 Above n1. 7 Angwin, J., Mattu, S., Larson, J. and Kirchner, L. (2017). ‘Machine Bias’. [online] ProPublica. Available at propublica.org/article/machine-bias- risk-assessments-in-criminal-sentencing [Accessed 8 Nov. 2017]. 8 Ibid. 9 See for example Alexander, M. (2010). The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press. 10 Danziger, S., Levav, J. and Avnaim-Pesso, L. (2011). Extraneous factors in judicial decisions. Proceedings of the National Academy of Sciences, 108(17), pp6889-6892. 11 Kleinberg, J., Lakkaraju, H., Leskovec, J., Ludwig, J. and Mullainathan, S. (2017). Human Decisions and Machine Predictions. The Quarterly Journal of Economics, 27. 12 ZDNet. (2017). ‘NSW Police targeting shows the ethical dangers of secret algorithms’, ZDNet. [online] Available at zdnet.com/article/nsw-police- targeting-shows-the-ethical-dangers-of-secret- algorithms/ [Accessed 13 Dec. 2017]. Richard Gifford is a national director of The Legal Forecast. Special thanks to Michael Bidwell and Benjamin Teng of The Legal Forecast for technical advice and editing. The Legal Forecast (thelegalforecast.com) aims to advance legal practice through technology and innovation. TLF is a not-for-profit run by early career professionals passionate about disruptive thinking and access to justice. Legal technology LRAU_XCL17_RET1541_MBA_JAN_QLS_PROCTOR_w185x80mm_v1_OUTLINED_FA.indd 1 5/12/2017 3:10 PM Foremost, in the interests of transparency and due process, the software needs to be capable of being appealed. Legislation ought to be drafted in anticipation of the software’s implementation in order to protect the rule of law and the transparency of legal decisions. As former US Attorney-General Eric Holder advised, thorough studies into the software’s utility, accuracy and bias must be conducted prior to implementation. These are only some suggestions and plenty of thought will need to be put into how to successfully employ AI in the courtroom. When the day comes for our jurisdiction, we must make sure we are prepared to ensure that the rule of law and due process are protected.