It has long been the tradition of the American criminal justice system to value the rights of the accused throughout the criminal process, even to the point of placing the burden on the state to show “beyond a reasonable doubt” that the accused is guilty of the crime that they stand accused of. Sir William Blackstone once famously said, “It is better that ten guilty persons escape than that one innocent suffer”. this presumption of innocence makes up one of the fundamental principles of our legal system as it pertains to the treatment of crime and how it is prosecuted. Inherent in this protection is that each defendant will be judged based solely on the merits of his or her case as seen through the lens of the judicial system. this individual assessment and subsequent prosecution by the state helps to ensure that enough focus is given to the variables and facts surrounding a crime to ensure that justice is done, not just in the aggregate, but on the individual level where it is most important to the average American citizen.
However, with the advent of greater technology becoming a part of our every day lives a movement has begun to replace human description with the analytic of a machine to increase efficiency and create an illusion of “equity” By using an algorithm, or mathematical equation to determine the likelihood of events based on a probability assessment of certain factors related to the accused. Anyone who has ever seen the movie Minority Report knows that this is a bad idea and can tell you why in simple terms: the message of the movie is that “pre-crime” as portrayed in the film was all about playing the averages. While it was true that in most cases the minority report division was correct in predicting events, there was a percentage where the psychics in the movie simply got it wrong. There was a cover-up by the government because the decision was made to sacrifice the individuals right on the altar of judicial economy.
While this motion picture was a clever and thought-provoking fiction, it’s a known fact that life often imitates art and it would appear that there are those that saw this film and decided they were watching the future of criminal justice play out on the big screen. By using this mathematical formula they think that they have become some form of modern-day Anubis, weighing the souls of the accused to decide who is worthy of salvation and damnation. The is clear in the fact that in most cases the formula doesn’t even bother to factor in the crime of which the person stands accused, merely other factors about their present lifestyle and past criminal history. This movement is gaining traction both as a means to determine pretrial detention status, but also to hand out sentences and determine who qualifies for early reentry after incarceration.
This theory of Criminal justice through a computer has been largely implemented in the state of New Jersey where attorney general Anne Milgram decided that she wanted to “money bail criminal justice”. It is hard to believe that someone with so much formal education would forget that the cornerstone of the American justice system is “liberty & Justice for all” not “justice for most”. The entire concept of the “money bail” approach was to play the odds and try to come out ahead with limited resources. What the state of NJ was essentially said to its citizens is: “Close enough, we’ll get it right most of the time”. This plan of crime control on a budget runs contrary to the very fabric of our core beliefs. No longer is each man judged on their merits or lack thereof. Instead, they are thrown into the pot with every other offender in the state and they are shaken out into layers based on the law of averages. Mitigating circumstances or outside variables are of no concern to the equation, the calculations take place in a vacuum absent of any factors but the ones preprogrammed into the formula. I don’t know about you but I don’t want to be evaluated by my government with the same basic formula that the Cleveland Browns used to build their organization. You’re going to end up with the same result in both cases, disappointing to horrible.
Even former US Attorney General Eric Holder, a proponent of criminal justice reform warned against the use of math to substitute common sense and due process stating: “static factors and immutable characteristics, like the defendant’s education level, socioeconomic background or neighborhood” to determine the length of a person’s sentence could have unintended consequences. He also goes on further to elaborate his point by stating: “Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice,”
What Mr. Holder realizes is that what these proposed changes would represent is a shift to a “Summary Justice” approach to crime. In Civil litigation there exist a concept known as “summary judgment” whereby a court rules that no factual issues remain to be tried and therefore a cause of action in a complaint can be decided upon certain facts without trial. Also known as judgment as a matter of law, simply put this practice is used to circumvent a trial because it is determined that there are no issues on the merits of the case worth litigating. Sound familiar? It’s more or less the idea that a case is so weak on its face that it cannot prevail and therefore isn’t worth wasting the resources of a trial on. In civil litigation that is acceptable because no one’s freedom is at stake and the appeals process is used to judge the merits of any such judgment. However, in the criminal justice system, the burden is on the state to prove their case “beyond a reasonable doubt” not by “preponderance of the evidence” that the civil system uses.
Introducing the concept of “justice by the law of averages” might be the single most irresponsible and disastrous idea of the 21at century. It essentially paves the way for the criminal system in the United States to become an assembly line system where every piece looks the same regardless of the facts of a case. This would slowly destroy not only due process rights but eventually judicial desertion and the presumption of innocence. If the computer starts doing all the heavy lifting in bail decisions and sentencing recommendations, it will become the norm. Everytime the computer gets it wrong it will be chalked up to the greater good. It is at this point that the fatal flaw of summary justice is exposed, it’s not about equality of rights or equity of access to said rights; it’s about equity of outcome. Those that advocate for so-called “bail reform” or “criminal justice reform” are more concerned with making sure that everyone receives the same result that they forget that no two cases are alike and that each case deserves individual attention and individual solutions, not cookie-cutter results that make no sense in the bigger or smaller picture. It is at the very essence of our basic American rights that we not be painted with the brush of others and that we be able to assert our rights as individuals, requiring individual focus be given to all the nuisances of each case. No two cases should be the same because no two defendants are the same. To try to make them the same or treats then alike based on a misguided desire for equality is a violation of their rights. To simply “play the odds” on all of Americas criminal defendants might be the most American thing we have seen since the McCarthy hearings.