It’s debatable Is the nation’s judicial system fair and just?
In this week’s “It’s Debatable” segment, Rick Rosen and Charles Moster debate whether the country’s justice system is fair and just. Rosen is the Glenn D. West Professor of Law Research at Texas Tech University School of Law and a retired U.S. Army Colonel. Moster is the founder of the Lubbock-based law firm Moster with seven offices including Austin, Dallas and Houston.
As a lawyer for 36 years, it is troubling to say that our justice system is fundamentally unfair and unjust. However, that has been my experience as a trial attorney having appeared in state and federal courts nationwide.
During my career, I have seen exemplary judges and lawyers who live up to the demands and expectations of their profession. Unfortunately, I have encountered judges who have exhibited incredible bias, prejudice and abuse of position. You can add a multitude of lawyers who play badly and will do anything to win, including lying and cheating. Disgusting doesn’t describe the feeling in the pit of my stomach.
Of course, this goes against the civic propaganda we learned in elementary school. Clients able to pay and hire the best lawyers and/or those who have previous social or professional relationships with practicing judges generally come out on top. This is how the game is played.
The interaction of these toxic conditions can deliver a horrific outcome to clients in civil cases where their businesses or savings are at stake. However, such consequences can be catastrophic for defendants who are unfairly treated in our criminal justice system.
In preparation for this debate, I reviewed a report compiled by the Sentencing Project titled “Racial Disparity in Sentencing: A Review of the Literature.” This is not a propaganda piece produced by a fringe organization, but an objective, substantive report sponsored by the John D. and Catherine T. MacArthur Foundation and other reputable donors. His conclusion based on examining sentencing results across the country is shocking:
· Blacks and Latinos receive harsher penalties than whites.
· Blacks and Latinos receive harsher penalties when crimes are committed against whites than other ethnic populations.
· Blacks and Latinos are more likely to be sentenced to death.
This is not a surprise for minority populations. However, it also plagues all ethnic groups (according to socio-economic status) and calls for reforms. I have a single recommendation to follow.
In a speech to the British House of Commons in 1947, Winston Churchill said that “Democracy has been said to be the worst form of government, except all other forms which have been tried from time to time. other…”. The same can be said of the US justice system – it’s not nearly perfect, but it’s better than the alternatives.
For the past 49 years, I have been an attorney in private practice, government service, and law school. I recognize that our justice system has the flaws noted by Charles, and I do not totally disagree with Charles’ assessment. Indeed, in 1977, four years after graduating from law school, I left private practice in Florida for the armed forces because of some of the problems Charles described.
Over the next 26 years as an Army Judge Advocate, I followed the sage advice of Major General (Retired) Walter B. Huffman, former Dean of Texas Tech Law School and Judge -advocate general of the army, that when we get up in the morning, the only thing we have to do is “do the right thing”. Importantly, I have found that those I have worked with, the civilian attorneys I have argued against, and the military and civilian judges I have appeared before have also followed the same advice. And observing the judicial system as a professor of law and an impartial observer, I firmly believe that most lawyers and judges exercise the same approach, demonstrating the highest level of honor and integrity. I recognize that there are biased judges and dishonest lawyers, but they constitute a small fraction of the legal community.
Charles’s gravest accusation against the American judicial process is that it is fundamentally unfair to the poor and people of color. I won’t deny that fact and I’m looking forward to Charles’s proposed solution.
I have great respect for Professor Rosen, but I disagree with his conclusion about the extent of bias in our justice system. He rightly acknowledges that “biased judges and dishonest lawyers exist” but wrongly concludes that “they constitute a small fraction of the legal community”. Sadly, I believe the taint is pervasive, especially when it comes to the injustice inflicted on the poor and racial minorities, as evidenced by the disparities report I cited.
I have a logical and creative solution. Before articulating my recommendation, I would like to qualify my background as a lawyer and software developer. In addition to my law firm, I am the founder of a computer software company that is involved in the creation of sophisticated artificial intelligence (AI) programs based on standard code, machine learning and networks of neurons. I therefore master both legal and technological issues.
When it comes to civil cases, critical decisions affecting the admissibility of evidence and the application of prior case law are often submitted to overburdened judges with insufficient preparation time, inexperience, bias or worse. Almost every lawyer I know has a court horror story of a case that went inexcusably bad for no reason other than a judge’s adverse disposition, overt bias, or detrimental influence of not being a member. from a local or city court where neighborhood attorneys are favored. Lawyers call it being “homemade” and it happens all the time in small towns across America. A case can be lost simply because a judge wrongly denies the admission of essential evidence. It happens all the time.
A computer program could be developed which applies the objective rules of evidence to any type of facts in a uniform and unbiased way. Evidence would thus be grabbed by lawyers on both sides of the aisle and an advanced AI would determine what gets in our way. Once evidence is presented, fact witnesses could testify in real time subject to evaluation and assessment by software with algorithms to judge relevance and credibility. Once the proof is established, legal principles would be applied objectively to arrive at a just verdict as to liability and amount of damages. The very notion of legal recourse to precedent to determine the outcome, which lawyers call stare decisis, would apply perfectly in the context of AI.
The use of artificial intelligence would allow AI to review and apply every case in Texas that has already been decided on a particular issue in addition to expert treatises. These sophisticated programs apply logic that approaches and exceeds human intelligence by eliminating bias and error.
As an added protection for defendants, I would recommend that the use of these AI systems be voluntary but enforceable if written into contracts with the same force of arbitration provisions. Appeal rights could also be preserved if either party wished to take the matter to a higher human court.
I would similarly grant these AI protections to defendants, but again on a voluntary basis and subject to appellate review.
The use of sophisticated artificial intelligence would eliminate bias and corruption within our judicial process. We need to take existing technology and apply it to a broken system.
The solution Charles proposes to inequities and corruption in the justice system is surprising: artificial intelligence (“AI”). Although I’ve owned a computer for almost 40 years (starting with the Commodore 64), I confess that I don’t understand much about programming and AI. However, I watch the “Picard” series and recognize that the AI (“Synthetic”) can go haywire even in the 24th century. Specifically, I know that in this century, AI depends on the explicit and implicit knowledge, skills, and biases of programmers. Judge Herbert B. Dixon, Jr., observed in the Judges’ Journal of the American Bar Association: “The strengths and weaknesses of AI are that the software does exactly what it is programmed to do; a human must program the AI system from the start and review the results produced by the AI system.
Nevertheless, I think Charles’ approach is ingenious. I would certainly support the use of AI as a tool to help members of the judiciary, but not to substitute for judges. As Justice Oliver Wendell Holmes noted: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the predominant moral and political theories, the intuitions of public order, avowed or unconscious, down to the prejudices that judges share with their fellows, had much more to do than the syllogism to determine the rules. by which men are to be governed. In other words, judicial decision-making involves more than the simple application of black-letter legal principles; it requires judges to assess credibility and balance the interests and concerns of the parties and society.
Also, Charles’ approach involves very few cases. Between 90% and 95% of federal civil cases are settled by the parties – less than 1% actually go to trial; 90% of federal criminal defendants plead guilty – only 2% go to trial. In 2020, Texas courts adjudicated approximately 8% of major civil cases; juries judged only 0.4%. Similarly, most serious criminal cases in Texas are resolved by guilty pleas, and only 5% are tried, 1% by a jury and 4% by a judge alone. With regard to the specific application of AI proposed by Charles, AI will play an insignificant role in addressing the racial and economic inequalities present in the American justice system. For example, it will certainly not reduce racial disparities in sentencing.
Finally, I think the increasing use of AI can erode trust in the judiciary and the justice system. People will no longer see the law as handed down by society, but as the result of mystifying equations and algorithms created by anonymous programmers.