Artificial Intelligence, Criminal Justice, and Risk Assessment:

The Right to An Explanation Objection to Opaque Recidivism Prediction Algorithms

Risk assessment tools like COMPAS (Correctional Offender Management Profiling for Alternative Sanction) use sophisticated algorithms to calculate the probability that an offender will commit an additional crime within a certain number of years of the date of the assessment. These calculations are based on information about the offender and their past conduct. Courts and parole boards frequently use such algorithms when making decisions about parole, probation, bail, and even sentencing. The inner workings of these tools remain inaccessible to the defendants whose fate is in part determined by them when the algorithms in question belong to a private corporation (as is the case with COMPAS) or are driven by advanced forms of machine learning that generate unfathomably complex predictive models. In such cases, it seems plausible to conclude that using the algorithms in these ways is morally objectionable because it seems plausible to suppose that defendants have a moral right to receive an explanation of the reasoning that led to the decisions that were made in their cases and that the opacity of such algorithms prevents them from receiving one.

In this talk, I will discuss two arguments that have been offered in defense of this right to an explanation objection to using opaque risk assessment tools in these ways. The first maintains that using them for these purposes is analogous to other practices that clearly violate a defendant’s due process rights. The second maintains that using them in these ways violates a requirement of state transparency that is a necessary condition for political legitimacy. I will try to show that both arguments are unsuccessful. In addition, I will offer what I believe to be a novel argument in defense of the claim that defendants do not have a right to an explanation of the reasoning that led to the decisions that were made in their cases about parole, probation, bail, and sentencing. The argument is based on the claim that offenders do not have a right to have jurors explain the reasoning that led to their decision to vote to convict them and that if this is so, then they also lack the right to have courts and parole boards explain the reasoning that led to their decisions about parole, probation, bail, and sentencing. This conclusion about the merits of the right to an explanation objection may prove disturbing, but I will argue that the implications of the alternative position are even harder to accept.