The Right To A Human Judge In Criminal Justice Settings

• In Event: Data and Risk Assessments in Courts

Abstract

This paper critically examines the integration of artificial intelligence (AI) in criminal justice (CJ) decisions through a defendant’s rights perspective. It argues that the growing use of AI in CJ challenges the normative legitimacy of judicial decisions and significantly impacts their empirical legitimacy. The latter, crucial for public acceptance and compliance with the law, hinges on the alignment of the justice system with the community's values and expectations. This paper posits that automating decision-making processes risks eroding this empirical legitimacy by compromising transparency, consistency, and effective communication—three pillars essential for CJ to be perceived as legitimate. Furthermore, the paper underscores the importance of contemporary procedural justice and restorative justice considerations, highlighting the intrinsic human qualities necessary for fair and empathetic decision-making, which AI cannot replicate. Mimicking human compassion may also infringe on the right to a fair trial. While AI can offer support in handling the volume and complexity of data in criminal justice, it should not replace human decision-makers entirely. Due to the severity of CJ’s potential impact on individuals’ lives, the right to a human decision/judge, already under development in the context of personal data protection, seems even more relevant here.

Authors

• Ales Zavrsnik, Institute of Criminology at the Faculty of Law Ljubljana

• Mojca M. Plesnicar, Institute of Criminology at the Faculty of Law Ljubljana