Sentenced by an algorithm — Bias and lack of accuracy in risk-assessment software in the United States criminal justice system

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Sentenced by an algorithm — Bias and lack of accuracy in risk-assessment software in the United States criminal justice system

Author Willem Gravett

ISSN: 1996-2118
Affiliations: BLC LLB (UP) LLM (Notre Dame) LLD (UP), Associate Professor in the Department of Procedural Law, University of Pretoria, Member of the New York State Bar
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 31 – 54
https://doi.org/10.47348/SACJ/v34/i1a2

Abstract

Developments in artificial intelligence and machine learning have caused governments to start outsourcing authority in performing public functions to machines. Indeed, algorithmic decision-making is becoming ubiquitous, from assigning credit scores to people, to identifying the best candidates for an employment position, to ranking applicants for admission to university. Apart from the broader social, ethical and legal considerations, controversies have arisen regarding the inaccuracy of AI systems and their bias against vulnerable populations. The growing use of automated risk-assessment software in criminal sentencing is a cause for both optimism and scepticism. While these tools could potentially increase sentencing accuracy and reduce the risk of human error and bias by providing evidence-based reasons in place of ‘ad-hoc’ decisions by human beings beset with cognitive and implicit biases, they also have the potential to reinforce and exacerbate existing biases, and to undermine certain of the basic constitutional guarantees embedded in the justice system. A 2016 decision in the United States, S v Loomis, exemplifies the threat that the unchecked and unrestrained outsourcing of public power to AI systems might undermine human rights and the rule of law.

Demeanour, credibility and remorse in the criminal trial

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Demeanour, credibility and remorse in the criminal trial

Authors Adebola Olaborede & Lirieka Meintjes-van der Walt

ISSN: 1996-2118
Affiliations: LLB (Nigeria), LLM (Stellenbosch), LLD (Fort Hare), Lecturer, Nelson Mandela School of Law, University of Fort Hare; BJuris LLB (UPE) LLM (Rhodes) DJuris (Leiden), Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 55 – 75
https://doi.org/10.47348/SACJ/v34/i1a3

Abstract

This article, referring to South Africa as well as to selected other common law jurisdictions, proceeds from the premise that it is a well-accepted practice for judges to consider demeanour in assessing the credibility of a witness and in assessing whether the accused shows remorse when decisions regarding sentences are taken. However, the article also takes cognisance of the fact that there is a lack of generally agreed-upon objective methods for the identification of remorse. The article was prompted by recent health precautions regarding the mandatory use of face masks, in order to protect people and to contain the spread of the coronavirus, which provides an opportunity to review demeanour in general and perceptions concerning facial demeanour or facial expressions in the courtroom, in particular. The article explores the validity and reliability of findings on remorse and of making credibility assessments based on demeanour evidence. Part 1 of the article is an introduction. Part 2 of the article provides a brief overview of credibility and demeanour evidence in the courtroom. Part 3 of the article examines remorse and demeanour evidence in criminal trials. Part 4 of the article considers demeanour evidence as a ‘tricky horse to ride’. Part 5 of the article provides a discussion of empirical research studies in the field of social psychology relevant to the reliability of finding credibility and remorse on the basis of demeanour evidence. Part 6 briefly discusses COVID-19 face-covering regulations and demeanour evidence in the criminal trial. The article emphasises that although non-verbal cues could be valuable to judges, such evidence may be unreliable and that courts have cautioned against demeanour evidence being afforded undue importance. The article concludes that even when facial expressions are available to the court, it would be in the interests of justice to exercise great care concerning demeanour in general and facial expressions in particular as a guide to assessing credibility and the existence of remorse.

Rape: An unreasonable belief in consent should not be a defence

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Rape: An unreasonable belief in consent should not be a defence

Author PJ Schwikkard

ISSN: 1996-2118
Affiliations: BA (Witwatersrand) LLB (Natal, Pietermaritzburg) LLM (Natal, Durban) LLD (Stellenbosch), Professor of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 76 – 102
https://doi.org/10.47348/SACJ/v34/i1a4

Abstract

Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines rape in the following terms: ‘Any person (‘A’) who unlawfully and intentionally, commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape.’ This paper focuses on one component of the definition, namely fault. It is argued that a mistaken but unreasonable belief in consent should not be recognised as a defence and that a normative approach could soften the focus on the behaviour of the complainant and send a clear signal that our commitment to constitutional values requires us to take due care in our interactions with others. The argument is made with full awareness that law reform is a very small cog in addressing the scourge of rape.

Comment: Distinguishing between dolus directus and dolus eventualis: Ngobeni v The State (1041/2017) ZASCA 127 (27 September 2018)

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Comment: Distinguishing between dolus directus and dolus eventualis: Ngobeni v The State (1041/2017) ZASCA 127 (27 September 2018)

Author Boyane Tshehla

ISSN: 1996-2118
Affiliations: University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 128 – 136
https://doi.org/10.47348/SACJ/v34/i1a7

Abstract

None.

International Human Rights Law and the Access of Children of Asylum Seekers to Social Assistance in South Africa

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

International Human Rights Law and the Access of Children of Asylum Seekers to Social Assistance in South Africa

Authors Tivoneleni Edmund Lubisi, Puleng Letuka & Ademola Oluborode Jegede

ISSN: 2522-3062
Affiliations: Legal Researcher, Correctional Service Home, South Africa; Senior Lecturer, School of Law, University of Venda; Professor of Law, School of Law, University of Venda
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 3 – 34

Abstract

There is a massive presence of asylum seekers in South Africa. Amongst this population are children who need social assistance from the state distributed as ‘grants’, due to their dependence, vulnerability and developmental requirements. South Africa is a state party to international instruments on human rights and has a regulatory framework including the Constitution which allows for the application of these instruments and guarantees the right to social security for everyone. This article focuses on whether the existing corpus of international instruments on human rights and relevant domestic regulatory frameworks may allow children of asylum seekers the access to social assistance in South Africa. While demonstrating that the access to social assistance for children of asylum seekers is implied under international human rights instruments, the article establishes that this has not found expression in the application of existing legislation on social assistance in South Africa. By deploying an appropriate interpretive approach, courts may respond to this normative gap and thereby assist in guaranteeing the access of these children to social assistance in South Africa.

Emergence of Illegality in the Underlying Contract as an Exception to the Independence Principle of Demand Guarantees

by | Jun 5, 2021 | CILSA, CILSA V53 I3 2020

Emergence of Illegality in the Underlying Contract as an Exception to the Independence Principle of Demand Guarantees

Authors Cayle Lupton & Michelle Kelly-Louw

ISSN: 2522-3062
Affiliations: Assistant Lecturer, Department of Mercantile Law, University of Johannesburg; Professor, Department of Mercantile Law, University of South Africa
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 3, p. 35 – 71

Abstract

It is questionable whether illegality in the underlying contract of a demand guarantee can or should constitute a valid exception to this instrument’s independence (autonomy) principle. From earlier English case law and scholarly discussions it appears that the acceptance of such an exception is contentious and, even if it is recognised, its extent remains uncertain. The English courts have previously indicated that they are open to accepting illegality in the underlying contract as an exception to the principle of independence of demand guarantees, but have not developed the exact parameters of such an exception. In the past, there were no South African court cases where illegality in the underlying contract was accepted, or even considered, as a possible exception to the independence principle of a demand guarantee. In a recent South African case, Mattress House (Proprietary) Ltd v Investec Property Fund Ltd, we find the first evidence of a South African High Court’s willingness to accept the possibility of illegality in the underlying contract as constituting a valid exception. In this article we discuss this South African case, which provides general guidance on the possibility of accepting such an exception under the South African law. South Africa is always persuasively influenced by English law in relation to demand guarantees. Therefore, we also discuss the English law.