The quest for certainty: Predictive algorithms, risk and preventive justice

Prof. Bernadette Mcsherry1

1Melbourne Social Equity Institute, University of Melbourne, Carlton, Australia

The term ‘preventive justice’ was first used in the late 18th century and linked to laws aimed at preventing future crime by intervening where, according to Blackstone (1772), there was a ‘probable suspicion, that some crime is intended or likely to happen’. The past few decades have seen preventive justice schemes reinvigorated in association with a focus on risk assessment tools aimed at predicting the risk of future harmful behaviour.

Recently, in the United States, predictive machine learning algorithms have been used to inform judicial decision-making, including sentencing (e.g. Loomis v Wisconsin 2017). These algorithmic assessments may be viewed as an extension of a previous trend toward actuarial prediction tools aimed at assessing the risk of recidivism.

The use of predictive algorithms may be viewed as both a return to the past in focusing on preventive justice as well as a logical extension of the ‘risk society’s’ impact on the quest for both certainty and security in criminal justice policy and practice.

This paper will analyse some of the issues raised by the use of predictive algorithms in predicting the risk of harm, including the lack of transparent algorithmic formulae, automation bias, lack of validity for Indigenous offenders and the allure of scientific reliability. It will argue that there remain serious ethical, legal and human rights concerns with the movement towards predictive algorithms in predicting the risk of future harmful behaviour and that structured professional judgment, with all its faults, may in fact be the least worst option.


Professor Bernadette McSherry is the Foundation Director of the Melbourne Social Equity Institute at the University of Melbourne and an Adjunct Professor in the Melbourne Law School and the Faculty of Law, Monash University. She has a BA(Hons), LLB(Hons), LLM from the University of Melbourne, a PhD from York University in Canada and a Grad Dip Psych from Monash University. She has published widely in the fields of mental health law and criminal law and is the outgoing President of ANZAPPL. In 2016, she was awarded The Mental Health Services (TheMHS) Award for Exceptional Contribution to Mental Health Services.

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