Algorithms versus Court Judges: One is a Black Box, the Other Isn’t

[written by Glenn Rodriguez, Program Director at the Horizon Juvenile Center, featured image credit: MotherJones.com]

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Professor Richard Berk. Photo Credit: Jessica Kourkounis for The New York Times

In the recent New York Times article, “An Algorithm That Grants Freedom, Or Takes It Away,” co-authored by Cade Metz and Adam Satariano, Dr. Richard Berk, a professor of criminology and statistics at the University of Pennsylvania, extended the “black box” analogy, commonly used to describe the use of algorithms in the criminal justice system, to include judges.

Dr. Berk, who has created various algorithms currently employed in Pennsylvania’s criminal justice system, argued that “If a judge decides they are going to put you away for 20 years, that is a black box.” Dr. Berk’s comparison is deeply flawed insofar as it fails to account for the state’s statutory requirement that judges “shall state on the record the reasons for the sentence imposed” (Pennsylvania Administrative Code, Title 234, Chapter 7, Code Rule 704, subdivision C, 2).

In Pennsylvania, as in many states, sentencing judges are statutorily required to provide a rationale for a given sentence. The judge’s rationale, in instances where the sentence is challenged as unnecessarily harsh, illegal, or inconsistent with established sentencing procedures, can be appealed by a criminal defendant and is subject to appellate review. Unlike a judge’s decision, decisions rendered by an algorithm are not reviewable by an appellate court as the algorithm’s findings do not include a narrative that explains the factors it considered in arriving at its decision.

The notion that an algorithmic model can draw conclusions to inform a criminal defendant’s sentence and the findings are beyond the scope of appellate review, flies in the face of a criminal defendant’s right to Due Process. The increasing reliance on predictive technology in the context of criminal justice serves to erode the protections of fairness, accountability, and transparency originally intended for criminal defendants by the framers of the Due Process Clause in the 14th Amendment.

 

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About Glenn Rodriguez

Glenn Rodriguez, Program Director at the Horizon Juvenile Center, is an innovative leader and advocate for criminal justice reform and a broad array of social justice issues whose inspiring story of redemption and fight for freedom have captured mainstream media attention and facilitated debate on responsible and ethical use of technology in the correctional system.

Glenn began his professional career as a Case Manager working with justice-involved youth who were court-mandated to participate in CCA’s Youth Advocacy Project, an alternative to incarceration program. In his role as case manager, Glenn was instrumental in helping court-involved teens navigate the complexities of their day-to-day lives. Glenn conducted intake interviews, psychosocial evaluations, needs assessments, and weekly individual counseling sessions necessary to develop client-centered treatment plans and make referrals to community-based resources. 

Through his public speaking engagements across the country, and his writings, Glenn aims to humanize, and give a voice to, incarcerated men and women adversely affected by technology by sharing his story and engaging in meaningful discourse and problem-solving with all stakeholders. Glenn’s story is a compelling tale of courage and perseverance in the face of adversity; a testament to the resilience of the human spirit and the transformative power of education and introspection. Glenn’s experience highlights the unintended consequences of using predictive technology and its limitations.

Glenn’s story has been featured in articles in the Washington Monthly, The New York Times, The Sydney Morning Herald, NPR Radio, and ABC News. Glenn story also appears in the VPRO documentary entitled “Algorithms Rule Us All,” and the podcast series entitled “The Watchmen: Sleepwalkers,” episode 3. Glenn has presented at the 2019 National Conference on Fairness, Accountability and Transparency, and at the New York City School of Data. He has co-authored a chapter entitled “The Coming of the Super-Predators: Race, Policing, and Resistance to the Criminalization of Youth,” with Marsha Weissman, Ph.D., Social Science, Adjunct Professor, Sociology, Maxwell School of Citizenship and Public Affairs of Syracuse University, and Evan Weissman, Ph.D., Geography, Assistant Professor, Department of Public Health, Food Studies and Nutrition, Syracuse University. The chapter will be published in New Thinking in Community Corrections: Community-Based Responses to Justice-Involved Young Adults, later this year.

Read more about Glenn's work below. Follow Glenn in social media on Twitter at @GlennRodNYC. Contact Glenn directly at glenn@glennrodriguez.com.

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