BEYOND MORE ACCURATE ALGORITHMS: TAKEAWAYS FROM MCCLESKEY REVISITED.

• Author: Okidegbe, Ngozi

McCleskey v. Kemp. By Mario Barnes, in CRITICAL RACE JUDGMENTS: REWRITTEN U.S. COURT OPINIONS ON RACE AND THE LAW 557, 581. Edited by Bennett Capers, Devon W. Carbado, RA. Lenhardt and Angela Onwuachi-Willig. Cambridge: Cambridge University Press. 2022. Pp. xxx, 694. Cloth, $84.75; paper, $39.19.

INTRODUCTION

McCleskey v. Kemp (1) operates as a barrier to using the Equal Protection Clause to achieve racial justice in criminal administration. (2) By restricting the use of statistical evidence in equal protection challenges, McCleskey stifled the power of the discriminatory intent doctrine to combat the colorblind racism emanating from facially neutral criminal law statutes and governmental actions. (3) But what if McCleskey had been decided differently? Given that Washington v. Davis (4) held that the challenged law or governmental action had to be "traced to a discriminatory racial purpose," (5) could McCleskey have articulated an approach to equal protection doctrine that would have been capable of addressing the sophisticated and sometimes technologically advanced methods by which racial hierarchy is reinforced and protected in criminal administration today?

It is with this question in mind that I read Professor Mario Barnes's (6) rewritten McCleskey decision, which appears as a chapter in Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law, edited by Professors Bennett Capers, Devon W. Carbado, RA Lenhardt, and Dean Angela Onwuachi-Willig. Using critical race theory, Professor Barnes shows us a different way forward. Critical race theory is an intellectual movement that provides a lens to study the relationship between law and racism. As Professor Capers explains, its aim is to confront and "transform[] the relationship between law and white supremacy to reshape American jurisprudence in a project of racial emancipation and anti-subordination." (7) When critical race theory enters the frame, it brings with it a distinct way of knowing about race, as well as racial discrimination, its effects, and potential avenues for its amelioration. (8) For this reason, Professor Barnes offers us more than just an alternative world where Warren McCleskey prevails. He puts forth a framework that would have equipped courts with a set of interdisciplinary and empirical tools to identify and abolish the power of colorblind ideology to encase racially inequitable systems. (9)

To highlight the importance of Professor Barnes's contribution, this Review will apply Professor Barnes's framework to a current racial justice challenge: the use of racially biased risk-assessment algorithms within criminal administration. (10) I start by contextualizing how McCleskey foreclosed the possibility of using the discriminatory intent doctrine to address the challenge posed by these algorithms. (11) I then introduce Professor Barnes's framework and imagine how it could be deployed in a current setting. I conclude by addressing implications.

1. CONTEXTUALIZING MCCLESKEY

   In order to contextualize the impact of McCleskey, it is important to briefly lay out terminology. For clarity, I use the term "algorithm" to refer only to risk-assessment algorithms that employ an actuarial method, big data, and information about an individual to produce a forecast about that individual's future conduct. (12) Jurisdictions are turning to these algorithms in bail, sentencing, and parole as a means to reduce existing racial inequities and reduce incarceration in criminal administration. (13) The optimistic idea is that decisionmakers will rely on this information to make release, detention, sentencing, and parole decisions without resorting to the racial heuristics that have fueled mass incarceration. (14)

   Even though these algorithms do not explicitly factor in race or use race as an input, they produce racially biased outcomes. I use the term "racially biased algorithm" in two senses. First, I use the term to refer to algorithmic systems that produce inaccurate (15) and inflated predictions of riskiness in regard to racially marginalized individuals as compared to non-racially-marginalized individuals. (16) Second, I use the term to refer to algorithmic systems that produce predictions that justify and support the continuation of racial stratification in criminal administration and beyond. (17) Though these two problems tend to intersect, they are distinct. Both senses of "racially biased algorithm" operate in tandem to continue the concentration of carceral control and its physical, psychological, and socioeconomic consequences on people from racially marginalized communities, particularly poor Black communities. (18)

   McCleskey is a substantial impediment (19) to challenging racially biased algorithmic systems under current discriminatory intent doctrine. (20) One reason why is that McCleskey restricts the use of statistical evidence, which is typically the only available evidence to show discriminatory intent in the algorithmic context. Another is that, in affirming the judgment, Justice Powell wrote that the discriminatory intent standard could not be satisfied by evidence demonstrating that a facially neutral criminal statute produced racial disparities within a state system that itself had a long history of explicit racial discrimination. (21) Rather, a claimant must show that a jurisdiction "enacted or maintained [the challenged law] because of an anticipated racially discriminatory effect." (22) Otherwise, courts will assume that there is a legitimate and nondiscriminatory explanation for the racial disparities identified. (23) This requirement is insurmountable for a claimant in the algorithmic context for two reasons. First, adopting jurisdictions can claim to rely on these algorithms to redress racial inequities in spite of their racial effects as opposed to because of them. (24) Second, those jurisdictions can always point to a nondiscriminatory, yet circular, explanation as to why an algorithm predicted a racially marginalized person as at high risk for future misconduct: the individual has traits that are considered risk factors by the algorithm.

2. MCCLESKEY REWRITTEN

   This brings us to McCleskey rewritten. Writing as a justice, Professor Barnes takes a radically different approach to the discriminatory intent doctrine. First, he rejects a narrow interpretation of discriminatory intent for the reason that the doctrine must be able to account for "the complex ways in which racism operates" (p. 560). This purposive approach to discriminatory intent frees the doctrine from its current preoccupation with conscious discrimination, (25) allowing the doctrine to take account of unconscious discrimination, (26) systemic...