Is Europe prepared for Risk Assessment Technologies in criminal justice? Lessons from the US experience
| Published date | 01 March 2024 |
| DOI | http://doi.org/10.1177/20322844241228676 |
| Author | Georgios Bouchagiar |
| Date | 01 March 2024 |
Article
New Journal of European Criminal Law
2024, Vol. 15(1) 72–98
© The Author(s) 2024
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DOI: 10.1177/20322844241228676
journals.sagepub.com/home/nje
Is Europe prepared for Risk
Assessment Technologies in
criminal justice? Lessons from
the US experience
Georgios Bouchagiar
Aristotle University of Thessaloniki, Greece
Abstract
Risk Assessment Technologies (‘RAT’) are currently used by criminal courts to evaluate defendants:
their risk to reoffend. Despite critique on opacity, complexity, non-contestability or discriminative
impact, some courts have favoured RAT-considerations, in light of alleged accuracy, effectiveness
and efficiency. This contribution assesses whether and the degree to which RAT can complywith
evidence-related rules and fundamental human rights. After detecting key legal challenges in the
United States (US), it makes recommendations for the proper regulation and consideration of RAT.
It then moves on to the European regime with a view to assessing whether and how it can better
tackle RAT-implementations in the criminal justice system.
Keywords
risk assessment, criminal procedure, evidence, human rights, trade secrecy
Introduction to RAT
A smart map-app works like this: the user gives destination and location data (input); the map-app
processes the input and considers relevant factors possibly affecting the trip (weather conditions or
traffic, for example); and it gives an output, an optimal route that the user can follow. Which factors
are considered by the map-app, whether all relevant factors are properly taken into account, how
they are weighed, how the output is reached, how reliable/accurate the map-app is (compared with
other map-apps) or with whom the user’s location or other data might be shared by the map-app may
not be known by the user.
Corresponding author:
Georgios Bouchagiar, Aristotle University of Thessaloniki, University Campus, Biology Building, Thessaloniki 54124,
Greece.
Email: georgebouchagiar@csd.auth.gr
Do we want this decision-making-rationale in criminal justice settings?
In many criminal justice systems, judges must consider and evaluate evidential materials that are
relevant and sufficiently reliable, often in conjunction with other corroborating elements, that they
properly weigh. On this basis, they make decisions that need be adequately transparent, fair,
justifiable and challengeable. These important dimensions of judicial decision-making can be
affected today, where judges consider ‘Risk Assessment Technologies’(‘RAT’), whose relevance
and reliability may be questionable and whose legal status and technological modus operandi can
resist transparency, fairness and justifiability.
Trained on group data and applied to individual defendants, RAT input various items of in-
formation (like education, gender or criminal history), analyse these items through an algorithmic
process and give an output, a score, labelling the defendant as being at a certain (low/high) risk-level
to reoffend. In the US, RAThave long been used at various stages of the criminal process, including
pretrial-, parole-, prison-, probation- and sentence-related contexts.
1
In Europe, RAT may, in the
near future, be actually introduced, since national lawmakers have recently been urged to take
measures to regulate artificial intelligence in criminal justice.
2
This contribution analyses the US experience on RATwith a view to identifying key legal
challenges and, ultimately, assessing whether and the extent to which Europe is prepared to im-
plement such technologies. More concretely, this paper considers the current (US) legal regime on
RATinadequate. The overarching narrative is this: most regulators have not yet expressly rec-
ognised the legal status of RATas integral part of the criminal procedure (via introducing specific
legal provisions in, for example, codes of criminal procedure or rules on evidence); as a result, they
have failed to guarantee, first, thatjudgescan fullyaccessand comprehendhowRATworkandthus
properly consider/review them and, second, that the defence can fully access and effectively
challenge RAT. To overcome these failures, this contribution recommends the recognition by law of
the legal statusof RAT and, inparticular, their subjectionto evidencerules andrigorous human
rights-compliance scrutiny. It further proposes: to make the RAT-source code visible to and re-
viewable by the judge, the defence and its expert; to exclude certain insufficientlyreliableRAT and
scrutinise all RAT; to set standards on relevant risk factors to avoid undue discrimination; and to
make concrete laws regulating RAT-implementations.
The discussion proceeds as follows. After analysing key functions of RAT, their promises and
their limitations, this paper addresses whether and the degree to which RAT may comply with US
evidence-related rules.Thereafter,itexamineswhetherandhowRAT can respect fundamental
human rights and, in particular, due process, equal protection and privacy; and it makes recom-
mendations to regulators. Moreover, it analyses the European legal scheme (vis-`
a-vis the US-
discussion and findings) and makes comments that might be useful for European audiences, who
may in the near future see RAT-implementations in national criminal courts. Last, this paper
summarises and draws conclusions.
1.See, among others: DA Andrews and James Bonta, The Psychology of Criminal Conduct (5th edn, Matthew Bender and
Company 2010); Richard Berk, Machine Learning Risk Assessments in Criminal Justice Settings (Springer 2019).
2.Parliamentary As sembly, ‘Justice by Algorithm –The Role of Artificial Intelligence in Policing and Crimin al Justice
Systems’(Recommendation 2182 (2020)); ‘Justice by Algorithm –TheRoleofArtificial Intelligence in Policing
and Crimi nal Justice Systems’(Resolution 2342 (2020)); Justice by Algorithm –The Role of Artificial Intelligence in
Policing and Criminal Justice Systems (Doc 15156, 1 October 2020, Report of Committee on Legal Affairs and
Human Rights); Justice by algorithm –Theroleofartificial intelligence in policing and criminal justice systems –
Reply to Recommendation1: Recommendation 2182 (2020)(Doc 15395, 25 October 2021, Committee of Ministers).
Bouchagiar 73
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