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Jurisdictions are increasingly turning to pretrial risk assessment algorithms as part of a cost-saving and viable solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from that tendency, examining these algorithms from a democratization of criminal justice perspective. Using this framework, it argues that currently employed pretrial algorithms operate to reinforce the democratic exclusion of low income racially marginalized communities in the creation and implementation of pretrial law, policy and practice, since the adoption, design, implementation and oversight of these algorithms often occur without these communities’ input. This exclusion contributes to these communities’ inability to contest the political, social, and economic costs that overincarceration has had on their communities and how these costs hamper their exercise of full citizenship in this country. Ultimately, it stresses that resolving this democratic exclusion and its racially stratifying effects is possible, but requires a shifting of power over pretrial algorithms downward toward low income racially marginalized communities, a prescription which may or may not be reconcilable with the aims sought by proponents of pretrial algorithms.
Ngozi Okidegbe is an Assistant Professor of Law at Yeshiva University Cardozo School of Law, where she researches and writes on issues concerning criminal procedure, critical race theory, and technology. Her current research focuses on identifying and remediating the racial effects associated with the use of risk assessment algorithms. Prior to joining Cardozo School of Law, she served as a judicial clerk at the Constitutional Court of South Africa and at the Court of Appeal for Ontario.