The Perils of Objectivity: Towards a Normative Framework for Fair Judicial Decision-Making

Abstract

Fair decision-making in criminal justice relies on the recognition and incorporation of infinite shades of grey. In this paper, we detail how algorithmic risk assessment tools are counteractive to fair legal proceedings in social institutions where desired states of the world are contested ethically and practically. We provide a normative framework for assessing fair judicial decision-making, one that does not seek the elimination of human bias from decision-making as algorithmic fairness efforts currently focus on, but instead centers on sophisticating the incorporation of individualized or discretionary bias--a process that is requisitely human. Through analysis of a case study on social disadvantage, we use this framework to provide an assessment of potential features of consideration, such as political disempowerment and demographic exclusion, that are irreconcilable by current algorithmic efforts and recommend their incorporation in future reform.