Algorithms and the criminal justice system

This thesis sought to explore the intersection between the criminal justice system and technology. The research was tailored specifically to the United States of America, its features and the current legal regulation, and the lack thereof, of algorithmic criminal justice. The consequences of this phenomenon have been showcased throughout the thesis, first in chapter two, where the issue of algorithmic discrimination and bias has been presented from multiple points of view, and then in chapter three, where the analysis of two real court cases showcased the downsides of algorithmic tools in the criminal justice context, as well as the concerns for the rights of the parties. Among the cases discussed was indeed the 2016 Loomis v. Wisconsin case, considered one of the first landmark rulings in this field, which, unless the precedent is overturned or a new regulation is approved, is set to influence the outcome of similar cases for years to come. Chapter two also addressed the issue of proprietary algorithms, the procedural and substantive irregularities they may give rise to, and the potential alternatives that are currently available to solve these controversies. The constitutional dimension of algorithmic criminal justice was acknowledged in chapter four, and framed as the wider debate on how due process, enshrined in the Fifth Amendment to the United States Constitution and further bolstered by the Fourteenth Amendment, the right to a fair trial, enshrined in the Sixth Amendment, and algorithmic criminal justice are to co-exist, stemming from the concern that such coevality may come at the expense of either, or both, of these two fundamental rights. Finally, chapter five defines “smart criminal justice” as a phenomenon, this time from a cross-jurisdiction perspective, by discussing both the foundations for a proper regulation that have been laid in the United Stated and some notable initiatives in the Italian justice system. Overall, the object of this thesis is not to demonize or otherwise stigmatize the use of algorithms in the context of criminal law, but rather to caution against improper use of these tools, in light of the manifold fundamental rights at issue and the interests of the many, diverse stakeholders involved.