If you are arrested, who would you rather oversee setting your bail – a stern judge in a rotten mood, or a computer program designed by someone you will never meet?

South Carolina courts are not yet using artificial intelligence (AI) to determine sentences in the courtroom, but it may be coming…

Courts in some parts of the U.S. have begun using algorithms to help set bail amounts and determine appropriate sentences by predicting how likely a defendant is to skip bail or commit another crime.  

Supporters of using AI in the courts claim that algorithms decrease human error and biases such as racism.   

Critics counter that such socially – and personally – important decisions demand a level of critical thinking and transparency that data-driven algorithms simply cannot provide.

Artificial Intelligence is Creeping Into Every Aspect of Our Lives

Most of us get a lot of entertainment advice from AI. These algorithms are sometimes shockingly accurate – you really like that movie your streaming service recommended, and that band recommended by your personalized digital radio program turned out to be really groovy.

When that happens, it feels like the software making these recommendations knows more about your tastes than your own friends do.

But not always. Most of us have checked out a tune recommended by a streaming service and thought, “What is this crap? Why would I want to listen to this?”

These algorithms are not really that smart. They are guessing at what you may like by considering factors that were programmed into them by people.

When it comes to movies and music, most of us think the hits outweigh the misses – suffering through a few seconds of a terrible song is worth it if the next recommendation turns us on to the greatest band ever.

But, when it comes to the criminal justice system, these kinds of misses are unacceptable.

AI Is Neither Bias-Free nor Transparent

Proponents argue that using AI in sentencing could eliminate biases like racial prejudice. The problem is – humans create and program the AI. So, biases are inevitably embedded in the very software that is meant to eliminate them.

And, even more importantly, the humans creating algorithms for sentencing are not court officials, government agencies who are accountable to the public, or even persons with a legal education.

These programs are created by private businesses who sell them to governments. They are often proprietary, which means the public – the taxpayers who are paying for them – may not have the right to see how the software works or how the algorithms reach their conclusions.

Supporters of using AI in sentencing point out that judges still have discretion – algorithms are just one tool in the judge’s toolbox. But, will judges still use their discretion?

What Happens When Judges Stop Using Their Own Judgment?

Judges are just people, and over time they are likely to use sentencing AI in the same way music lovers use their streaming service – why spend all that time looking for new music when the algorithm makes it easy?

In the case of judges, why bother engaging in critical thinking when the algorithm just spits out all the information needed?

Not only is it easier to lean on AI, it can feel safer, as well. It can be uncomfortable for judges to defend their own reasoning when it is questioned and criticized. It’s much easier to say, “I followed the objective advice of the data-driven machine!”

Federal mandatory minimum sentencing guidelines, which many federal judges have said “ties their hands” and prevents them from dispensing fair and just sentences, may shed some light on what can go wrong when judges are forced to stop using their critical thinking skills and when humanity is removed from the courtroom…

SC Criminal Defense Attorneys in Myrtle Beach, Conway, Charleston, and Columbia

Our criminal and DUI defense attorneys at Coastal Law represent our clients at all levels of SC’s criminal courts, from speeding tickets to murder charges and criminal appeals. Call your Myrtle Beach criminal defense lawyer now at (843) 488-5000 or fill out our online form to set up a free, confidential consultation.