Justifying intrusive measures in policing, prison, and administrative detention - between theory and practice

Session Submission Type: Pre-arranged Panel

Abstract

In the interaction between state authorities and citizens, justifications for executive decisions are a basic rule of law requirement. They help the addressees of the decisions to understand them and challenge those decisions they believe to be unjustified. Additionally, a duty to give reasons helps public authorities scrutinize and monitor their own decisions for patterns of discrimination, racial profiling and harassment. This is the theory, reaffirmed by the Charter of Fundamental Rights of the European Union in 2000. In practice, the implementation of the theory causes numerous difficulties, particularly in policing and carceral contexts. This may be because decision-makers are not trained to distinguish between case-specific justifications and universally applicable ones; or because, the selection of individuals to be subjected to measures is based on common discriminatory stereotypes, that cannot be revealed in the statement of reasons; or because adequate justification standards have yet to be developed as this is the case for AI applications, which are increasingly replacing conscious decision-making. This panel investigates the described discrepancy between theory and practice referring to four case studies that explore police stop practice in England, administrative detention decisions in Germany, decisions taken in Belgian prisons and the seemingly intractable problem of justifying AI decision making in law enforcement contexts.

Subtopic

• Topic 5: Social Control and Criminal Justice / Policing and Law enforcement (Policing WG)

Chair

• Beate Kutschke, Paris Lodron University Salzburg

Individual Presentations

• Individual justifications for police stop and search: a range of inadequate options from England & Wales - Estelle Marks, University of Sussex

• Justifying Decisions supported by Artificial Intelligence: Approaches and Limitations of the Accountability Settings foreseen by the European Union’s “Artificial Intelligence Act” - Hartmut Aden, Berlin School of Economics and Law, Berlin Intitute for Safety and Security Research (FÖPS Berlin); Steven Kleemann, Berlin Institute for Safety and Security Research (FÖPS Berlin)

• The power of transparency: the importance of justifications in the prison context - Pieter Houbey, CTRG/CCSP; Sonja Meijer, Radboud University

• Empty formulas to justify detention pending deportation - the justification practice of the Federal Police under scrutiny by the German Federal Court of Justice - Beate Kutschke, Paris Lodron University Salzburg