Abstract
The paper focuses on the traditional purpose of pre-trial detention (and other precautionary measures) to prevent specific risks. While liberty is the rule, before conviction, pre-trial detention is an absolute exception, competing with the opposite principle of the presumption of innocence: providing valuable and accurate justification for balancing the interest to prevent risk with the presumption of innocence is an overarching difficulty for judges, in the whole western world. Which the solutions? The paper reflects and compares the traditional solution of legal presumptions with the newer trend of actuarial assessment tools, based on psycho-criminological theories, based on the Italian and the uS federal systems.
Highlights
Come strumento estremo di limitazione della libertà personale – non può che essere l’assoluta eccezione, in costante tensione con la presunzione di innocenza
Mathematical models are meant to represent a phenomenon in descriptive terms, in order to allow a prediction of its future replication2: i.e. Having established how and when, given A, B occurs, a model allows to establish how likely it is that given a specific input, a specific
The idea at the basis of this paper is that the purpose of taking advantage of the recent digital turn to design pre-trial risk assessment tools is just a modern attempt to tackle the same, old problems of justifying pre-trial detention decisions, against the backdrop of the presumption of innocence
Summary
In the recent debate about the use of AI and computational models in the realm of justice, much attention has been paid to the alleged ability of such solutions to predict future events. The difficulty of forecasting an individual’s future behaviour in pre-trial decisions has been tackled with presumptions This should be the object of a specific comparative study, it is possible to argue, with some approximation, that the majority of the western legal orders recur to presumptions to establish the existence of a specific risk justifying detention (or other precautionary measures limiting liberty) before the assessment of guilt beyond any reasonable doubt. Such presumptions are various: They may be established by the law Is it a valuable solution? Let us reflect upon this
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