AI's Invisible Hand on the Scales of Justice

Guest: Judge Katherine Forrest

It may come as a surprise to learn that state court judges use AI tools to help them assess the risk of granting bail – and liberty – to an accused defendant before trial.

State court judges also use these AI tools when determining the sentence to impose on a convicted criminal.

Federal Court judges do NOT use AI tools for bail or sentencing, but do use them after conviction.  Federal Court judges use AI tools for post-conviction risk assessments, essentially to determine what services to provide and supervised release times.

Judges have been relying on these AI tools to provide these types of risk assessment for over a decade.  However, evidence shows that the AI-guided decisions do not treat all defendants equally and fairly, which raises important questions about how to appropriately use these tools.

Judge Katherine Forrest, a former federal court judge and our guest today, observed in her 2021 book, “When Machines Can Be Judge, Jury, and Executioner – Justice in the Age of Artificial Intelligence,” that machine learning systems build models from historical behavior that can reflect structural bias or discrimination.  She noted that the inclusion of flawed data in AI models has serious implications for personal liberty, with particular consequences for Black defendants.

Judge Forrest reasons that even judges who may be more aware of structural inequities are using a risk score that cannot and does not take any of that growing awareness into consideration. She cautions that continued use of unremediated AI tools by judges “cannot continue in their current … forms if we want the American ideal of justice to survive.”

On this episode of our podcast series, we have the wonderful opportunity to discuss with Judge Forrest her observations on AI and what she thinks can be done to help ensure that these tools can lead to fair and just results.

Judge Forrest served as a U.S. district judge in the Southern District of New York from 2011 to 2018.  She is a prolific writer on issues of AI and the law and recently completed a forthcoming book entitled, “Is Justice Real when ‘Reality’ Is Not: The Construction of Ethical systems in Virtual Worlds.”  She is a partner in the litigation department at Paul Weiss, working on, among other things, advisory work, investigations, and litigation relating to AI.

Recorded: 2023-03-06