The impact of algorithms on legitimacy in sentencing

Abstract

This paper explores current and future possible uses of algorithms in sentencing and assesses the likely impact of their use on penal legitimacy. The focus is on sentencing in England and Wales, although examples from the United States, where the use of algorithms in sentencing is more extensive, are also considered. An understanding of legitimacy grounded in procedural fairness is used, with a particular focus on two key factors affecting fairness: bias and transparency. It is concluded that the use of algorithms in sentencing increases bias and decreases transparency, adversely affecting the fairness of the sentencing process and weakening penal legitimacy. The paper is intended to contribute to wider discussions on sentencing and the use of algorithms in criminal justice and may therefore appeal to academics in these areas, criminal justice practitioners and policymakers considering further development of algorithmic tools in sentencing.