Esprii Chapman – Notes on The Rule of Law and Automation of Government Decision-Making – 11/27/20 (Article 9 of 10)

One of the best-known aspects of the rule of law is that governments must be transparent and accountable in respect of the rules and decisions they make. Transparency requires publicity about the operation of the state and that individuals can access legal rules and administrative decisions. This is important so that individuals can understand the reasons for decisions affecting them and learn how future decisions might affect them. In democratic systems, some awareness as to the principles underlying the operation of the law (albeit not necessarily the specific details of decisions affecting others) is also useful for people seeking to understand and hence evaluate the performance of government. Accountability further requires that government be subject to the law and answerable for its actions (for example, that executive action can be overturned where it transgresses the law). Transparency and accountability are related because the transparency of a decision-making process or system is necessary (but not sufficient) for making that process or system accountable. This includes accountability as to compliance with other rule of law principles, such as equality before the law. (429-430)

On the other hand, there is no requirement that defence counsel be able to challenge the accuracy of the COMPAS tool or the algorithms upon which it is based, both of which remain a trade secret. (436)

a ProPublica investigation found that African Americans are more likely than whites to be given a false positive score by COMPAS. This is not necessarily because race is used as a variable in modelling relative dangerousness of the offender population; differential impact can result where race correlates with variables that are themselves correlated with risk classification. (436)

While racial discrimination was not an issue in Loomis, gender discrimination was raised. Data on gender was included in the set on which the algorithm was trained, the reason being that rates of re-offending, particularly violent re-offending, differ statistically between men and women. The Supreme Court of Wisconsin held that this kind of differential treatment did not offend the defendant’s due process right not to be sentenced based on his male sex. Its reason was that because men and women have different rates of recidivism, ignoring gender would ‘provide less accurate results’. (436-437)

Zalnieriute, Monika. Moses, Lyria Bennett. Williams, George. “The Rule of Law and Automation of Government Decision‐Making.” Modern Law Review, Vol. 82, No. 3, May 2019, pp. 425-455.

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