Our criminal justice system is key to our living together well and fairly: it helps set the tone of our streets, affects the strength of our communities, and deeply shapes families. Technology is already starting to transform criminal justice, from virtual hearings to automated transcription and beyond.
The safety, fairness, and functionality of the system that emerges from the current technological revolution will therefore profoundly impact our democracy, our rights, and the quality of all our lives.
The challenge
Technology has the potential to make justice more efficient, put it within more people’s reach, and rewire it for greater transparency and fairness. But it also has the potential to replicate and amplify discrimination and inequalities.
The most notorious example of the latter is the use of a risk assessment tool called COMPAS in the US. Sold as trustworthy, consistent and objective, the details of its calculations have remained proprietary. However, concerns were raised by a team of investigatory journalists after trawling through years of data to reveal that more Black defendants were being wrongly flagged as high risk and more white defendants were wrongly being deemed low risk.
Criminal justice should not be a sandbox for fast and loose experimentation – the human costs of mistakes are far too high. One of the most significant challenges currently facing the sector is therefore how to modernise in ways that tackle discrimination and unjust power imbalances. In other words, how do we harness tech to build a system that treats everyone equitably and is centred around people’s needs?
Guiding principles
The following overarching principles and practices will be key to ensuring technology changes criminal justice for the better:
- Accessibility and ongoing support
In 2020, JUSTICE held what we believe was a world first entirely virtual mock jury trial to assess its feasibility. One of the key lessons this brought home was that users need transparent processes with very clear guidance and expert ongoing support in order to secure their trust.
This support must be both technological and social; justice is a collective community process and its human dimension must not be forgotten. Such ‘user experience’ factors are vital to ensure legitimacy and protect people.
- Data, transparency, and accountability
Without decent data it can be extremely hard to know whether modernisation is making for a fairer system or not, and why. Data is also essential to ensuring technologies do not replicate or amplify current discriminatory thinking, since algorithms fed with discriminatory data tend to yield outputs that reflect or worsen this discrimination.
The digital case management system in the criminal courts, for example, suffers from just such a lack of data. As the National Audit Office found, this means “HMCTS has a limited understanding of whether reformed services are delivering the expected benefits”. Such transformations are far too impactful for policymakers to safely ‘fly blind’ on them.
There is a need for transparency in the tech infrastructure used for justice purposes too. One reason the COMPAS tool was not immediately recognised as problematic was its closed algorithm, for example. Justice tech requires public transparency just as much as judicial appointments or police training practices do.
- Learning lessons internationally
The pace of technological change means we need to learn lessons fast. JUSTICE is working on two projects to help ensure this happens.
First, we are running a multiyear project to ensure the use of data and AI in the justice system improves access to justice, advances human rights, and strengthens the rule of law. Amongst other things, this will draw out lessons on AI use in criminal justice systems around the world.
Second, we are scoping the potential for a JUSTICE data and policy institute – a global centre of excellence for justice data, research, and policy development to improve justice policy and practice. Exciting things to come – watch this space!
Public, private, and the third sector
Some reliance on private companies for tech solutions will be inevitable, making it essential for public-private relationships to be collaborative and centre people’s rights. We have seen the results of a hands-off approach to government outsourcing in scandals like that of human rights abuses at the Brook House immigration detention centre. Soon-to-be-released JUSTICE recommendations on how to centre people’s rights when outsourcing government services to the private sector could prove invaluable here.
For public and private actors to be on the same page also requires clear good practice guidelines for AI in the criminal justice sector - we are developing just such a set of principles to help guide developers, users, and practitioners. The challenge will then be to make those principles reality: to build a tech-enabled justice system in which the rule of law is hardwired into policies, systems and the enabling tech.
Civil society – from think tanks to charities, academics and those with lived experience of the criminal justice system – also have a key role to play. Led by social purpose or knowledge advancement, they can be an important, trusted voice in these conversations. Next month’s conference will be a great opportunity to deepen existing links and make new ones across these three sectors.
JUSTICE is a law reform charity working to build a fairer UK justice system within everyone’s reach. Over our 67-year history they have transformed the legal landscape for the better, led by evidence, expertise, and a focus on practical solutions.
Fiona Rutherford
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