In this week’s “It’s Debatable” segment, Rick Rosen and Charles Moster debate whether the nation’s justice system is fair and just. Rosen is the Glenn D. West Endowed Research Professor of Law 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 at 36, it’s unnerving to take the position that our justice system is fundamentally unfair and unfair. However, this has been my experience as a trial attorney who has appeared in state and federal court cases across the country.
Throughout my career I have seen judges and lawyers who are exemplary and live up to the demands and expectations of their profession. Unfortunately, I have met judges who have shown incredible bias, prejudice and abuse of their position. You can add a bevy of lawyers who will play dirty and do anything to win, including lying and cheating. Disgusting doesn’t describe the feeling in the pit of my stomach.
This, of course, contradicts the civic propaganda we learned in elementary school. Clients who are able to pay and place the best attorneys and/or those with prior social or professional ties to sitting judges tend to come out on top. This is how the game is played.
The combination of these toxic conditions can produce a terrible outcome for clients in civil cases where their businesses or life savings are at stake. However, such consequences can be disastrous for those who are unfairly treated in our criminal justice system.
In preparation for this debate, I reviewed a report produced by the Sentencing Project entitled Racial Disparity in Sentencing: A Review of the Literature. This is not a propaganda article produced by a fringe organization, but a substantive, objective report sponsored by the John D. and Catherine T. MacArthur Foundation and other respected donors. His conclusion, based on a nationwide review of sentencing findings, is shocking:
· Blacks and Latinos are punished more severely than whites.
· Blacks and Latinos are punished more severely when committing crimes against whites than other ethnic groups.
· Blacks and Latinos are more likely to get the death penalty.
This is no surprise to minorities. But it is also widespread in all ethnic groups (depending on socio-economic status) and calls for reforms. I have a unique recommendation to follow.
In a speech to the British House of Commons in 1947, Winston Churchill stated that “it has been said that democracy is the worst form of government, apart from all the other forms which have been attempted from time to time…”. The same is true of America’s justice system – it’s not nearly perfect, but it’s better than the alternatives.
In the last 49 years I have worked as a lawyer in my own practice, in the civil service and in jurisprudence. I recognize that our justice system has the flaws that Charles finds, and I don’t entirely agree with Charles’ assessment. In fact, in 1977, four years after graduating from law school, I left my private practice in Florida to work for the armed forces because of some of the problems Charles describes.
For the next 26 years as Army Judge Advocate, I followed the wise guidance of Maj. Gen. (retired) Walter B. Huffman, former Dean of Texas Tech Law School and Army Attorney General, that getting up in the morning is the only thing we have to do , is “doing the right thing”. It was important to me that my colleagues, the civilian attorneys I was litigating and the military and civil judges I appeared before, also follow the same advice. And as I observe the justice system as a law professor and an impartial observer, I firmly believe that most attorneys and judges take the same approach and demonstrate the highest level of honor and integrity. I recognize that there are biased judges and dishonest lawyers, but they make up a small fraction of the legal community.
Charles’ most serious charge against the American legal process is that it is fundamentally unfair to the poor and people of color. I won’t deny that fact and look forward to hearing about Charles’ proposed solution.
I have great respect for Professor Rosen, but I disagree with his conclusion about the level of bias in our justice system. He correctly acknowledges that “biased judges and dishonest lawyers exist”, but wrongly concludes that “they represent a small fraction of the legal community”. Unfortunately, I believe the taint is pervasive, particularly in relation to the injustice inflicted on the poor and racial minorities, as reflected in the inequality report I quoted.
I have a logical and creative solution. Before making my recommendation, I would like to qualify my background as both a lawyer and a software developer. Outside of my law practice, I am the founder of a computer software company dedicated to building sophisticated artificial intelligence (AI) programs based on standard code, machine learning and neural networks. I am therefore well versed in both legal and technical issues.
In civil cases, critical decisions affecting the admissibility of evidence and the application of previous case law are often the subject of overworked judges with insufficient preparation time, inexperience, bias, or worse. Almost every attorney I know has a justice horror story of a case brought on for no other reason than a judge’s unfavorable attitude, blatant bias, or the adverse influence of not being a member of a local court or city where the Neighborhood attorneys are preferred, inexcusably gone bad. Lawyers call this “homemade,” and it happens all the time in small towns across America. A case can be lost simply because a judge wrongly refuses to admit critical evidence. It happens all the time.
A computer program could be developed that applies the objective rules of evidence consistently and impartially to any pattern of fact. So evidence would be fed in by lawyers on both sides of the aisle, and an advanced AI would determine what’s not coming in with us. Once the evidence was presented, factual witnesses could testify in real time, subject to analysis and scoring by software with algorithms to assess relevance and credibility. With the evidence so secured, the principles of law would be applied objectively to arrive at a fair determination of liability and amount of damages. The notion of legal dependence on previous precedent to determine outcome, which lawyers refer to as stare decisis, would apply perfectly in the context of AI.
The use of machine intelligence would allow AI to review and apply every case in Texas ever decided on a given issue, in addition to the papers of experts. These sophisticated programs apply logic that approaches and surpasses human intelligence, eliminating bias and error.
As an added safeguard for the defendants, I would recommend that the use of these AI systems be voluntary but enforceable if included in contracts with the same force of arbitration provisions. The right of appeal could also be preserved should a party wish to bring the matter before a human court at a higher level.
I would similarly grant these AI protections to criminals, but again on a voluntary basis and subject to review by appeal.
The use of sophisticated AI would eliminate all bias and corruption in our judicial process. We must appropriate the existing technology and apply it to a flawed system.
Charles’ proposed solution to the inequalities 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’ll admit that I don’t know much about programming and AI. But I look at the series “Picard” and realize that AI (“Synthetics”) can go haywire even in the 24th century. More specifically, I know that AI in this century depends on the knowledge, skills, and explicit and implicit biases of programmers. Judge Herbert B. Dixon, Jr., noted in the American Bar Association’s Judges’ Journal: “The strengths and weaknesses of AI lie in the software doing exactly what it was programmed to do; A human has to program the AI system at the beginning and check the results of the AI system.”
Still, I think Charles’ approach is brilliant. I would certainly support the use of AI as a tool to support judges, but not as a substitute for judges. As Judge Oliver Wendell Holmes observed: “The life of the law was not logical, it was experience. The perceived necessities of the time, the prevailing moral and political theories, the explained or unconscious intuitions of public policy, even the prejudices that judges share with their fellow men had much more to do than the syllogism in determining the rules of which men should be governed.” In other words, judicial decision-making involves more than simply applying the broad principles of law; it requires judges to assess credibility and weigh the interests and concerns of the parties and society.
Furthermore, Charles’ approach implies very few cases. Between 90% and 95% of federal civil cases are settled by the parties – less than 1% actually go to court; 90% of defendants in federal criminal law plead guilty – only 2% go to trial. In 2020, Texas courts tried about 8% of major civil cases; Juries decided only 0.4%. Similarly, most major crime cases in Texas are solved by guilty pleas, and only 5% ever go to trial – 1% by jury and 4% by judges alone. In terms of the specific AI application Charles is proposing, AI will play an insignificant role in addressing the racial and economic injustices of America’s justice system. For example, it certainly won’t reduce racial differences in judgment.
Finally, I believe that the ever-increasing use of AI can undermine trust in the judiciary and the judicial system. People will no longer see the law as passed down by society, but as the result of mystifying equations and algorithms created by nameless programmers.