AI and Due Process: Can Machines Respect Legal Rights?

By Elizabeth Pelish

The integration of artificial intelligence (AI) into legal decision-making—from predictive policing to sentencing algorithms—has transformed how justice is administered. Proponents argue that AI can improve efficiency, reduce bias, and ensure consistency. However, these innovations raise critical concerns about constitutional guarantees, particularly due process. Due process, enshrined in the Fifth and Fourteenth Amendments of the U.S. Constitution, ensures fair treatment through the judicial system, especially for those accused of crimes. As AI systems become more embedded in legal processes, an urgent question emerges: Can machines truly respect and uphold legal rights?

AI tools such as COMPAS (Correctional Offender Management Profiling for Alternative Sanctions) are increasingly used in criminal sentencing and parole decisions. These tools rely on risk assessments to determine the likelihood of a defendant reoffending. While AI promises objective evaluation, multiple studies have found evidence of racial and socioeconomic bias in these systems. For example, a 2016 investigation by ProPublica found that COMPAS was twice as likely to misclassify Black defendants as high-risk compared to white defendants.

These findings suggest that algorithmic decisions may perpetuate or even exacerbate existing inequalities, challenging the “fairness component” of due process. When a defendant cannot access or understand the algorithm influencing their sentencing, transparency, which is an essential aspect of procedural fairness, is lost.

A major in evaluating AI's compatibility with due process is the “black box” nature of many algorithms. Complex machine learning models generate outcomes without offering human-readable explanations. This opacity makes it difficult for affected individuals to challenge decisions or understand how conclusions are drawn.

Courts have begun grappling with this challenge, and in State v. Loomis (2016), the Wisconsin Supreme Court ruled that the use of COMPAS did not violate due process rights, despite acknowledging its proprietary nature and lack of transparency. The court recommended, rather than required, that judges use such tools cautiously and not as the sole basis for sentencing (State v. Loomis, 881 N.W.2d 749 [Wis. 2016]). This ruling raises concerns about the extent to which legal rights can be protected when the rationale behind decisions remains inaccessible.

Accountability is a cornerstone of any justice system. Traditional legal frameworks allow for appeal, review, and liability when errors occur. However, AI systems complicate accountability. When a wrongful decision stems from an algorithm, who is to blame: the developer, the vendor, or the judge who relied on the tool?

This problem is compounded by the fact that many AI tools used in law enforcement and courts are developed by private companies and protected as trade secrets. Without access to the code or data sets, defendants and their lawyers cannot meaningfully contest the outcomes or verify that their rights were upheld. As Danielle Citron argues, “[d]ue process demands more than the right to be heard—it requires the ability to meaningfully respond to the case against you.”

In order to align AI use with constitutional protections, legal scholars and ethicists propose several reforms including, Explainability Standards in which AI systems must be explainable to allow meaningful review, Open Source Code in which algorithms used in public institutions should be transparent and subject to audit, Fight to Challenge in which individuals should be informed when AI is used in their case and be given the right to challenge its conclusions, and Human Oversight in which final decisions should always rest with a human being, preserving discretion and moral judgment.

AI’s promise of enhancing legal decision-making must not come at the cost of fundamental rights. Due process demands transparency, accountability, and fairness; all of which are jeopardized when opaque algorithms make life-altering decisions. In order for artificial intelligence to effectively support the cause of justice, it is imperative that it functions within frameworks that uphold human dignity and constitutional safeguards. Only then can machines contribute to a legal system that truly respects the rights of all individuals.

Bibliography

Angwin, Julia, Jeff Larson, Surya Mattu, and Lauren Kirchner. “Machine Bias.” ProPublica,

May 23, 2016. https://www.propublica.org/article/machine-bias-risk-assessments-in-criminal-sentencing.

Citron, Danielle Keats. “Technological Due Process.” Washington University Law Review 85,

no. 6 (2008): 1249–1313. https://openscholarship.wustl.edu/law_lawreview/vol85/iss6/1.

State v. Loomis, 881 N.W.2d 749 (Wis. 2016).

https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=171690.