Abstract

Excerpted From: Jessica M. Eaglin, Racializing Algorithms, 111 California Law Review 753 (June, 2023) (214 Footnotes) (Full Document)

It is as if I had been looking at a fishbowl--the glide and flick of the golden scales, the green tip, the bolt of the white careening back from the gills; the castles at the bottom, surrounded by pebbles and tiny, intricate fronds of green; the barely disturbed water and the flecks of waste and food, the tranquil bubbles traveling to the surface--and suddenly I saw the bowl, the structure that transparently (and invisibly) permits the ordered life it contains to exist in the larger world. --Toni Morrison

The institutionalization of algorithms throughout the criminal legal process is both popular and controversial. Algorithmic risk assessments standardize the prediction of an individual engaging in criminal behavior in the future based upon statistical analyses of large historical data on past offenders' behavior. Recently, these tools have emerged as a common legal practice intended to guide the exercise of discretion within criminal law's administration. Much of the law and policy debate around these tools arises from the potential impact that algorithms impose on marginalized Black and Brown people already disproportionately affected by criminal law enforcement in the United States. This Article treats the advance of the tools as a foundation to examine historically contingent racial assumptions expressed in the law that produce whiteness and white supremacy in the digital age. In revealing the deep connection between racial assumptions, this technology, and the law, this Article provides a theoretical foundation to expand critical approaches to race and racial hierarchy in legal scholarship going forward.

Existing legal scholarship considers the effect of algorithms in criminal law's administration on racially marginalized people from diverging perspectives. On one hand, scholars contend that algorithms can improve criminal law's administration by increasing objectivity and transparency, reducing incarceration, increasing public safety, and reducing the threat of racial bias by individual actors in decision-making. These scholars explore the role of law and policy in facilitating or hindering the potential for algorithms to achieve these normative ends. On the other hand, scholars and activists question whether algorithmic risk assessments will actually reduce incarceration and punitive surveillance, particularly for Black and Brown people disproportionately impacted by the criminal legal apparatus. These scholars propose a variety of legal interventions, including the abolition of algorithms as criminal legal practice. Though there is no consensus on how to conceptualize mass incarceration, both bodies of legal scholarship attend to the impact of algorithms on racial minorities.

This scholarship helps illuminate how algorithms in criminal law's administration shape the material conditions of Black people's lives. Yet, from a perspective oriented towards racial justice, the existing legal perspectives are insufficient. The question underlying existing legal scholarship tends to address the intersection of technology and criminal law in light of extant racial disparities in the criminal legal apparatus. But concern with racial disparities is not the same as critically questioning race and racial hierarchies in law. The latter stance recognizes race is socially produced and powerfully shapes society in various ways. From this stance, the key underlying question is different: how can law be a tool to destabilize the production of racial hierarchies in society? This inquiry demands attention to the co-productive dimensions of race in law. Law creates subordinating material conditions for Black people; it also legitimates and creates historically contingent ways of thinking that normalize these conditions in society. In the context of criminal legal reform, less attention is paid to the intellectual component of producing race and racial hierarchy in law. Failure to attend to transitory racial assumptions expressed in the law is perilous. Following the Toni Morrison quotation above, the existing perspectives on algorithms as criminal legal practice can easily center on the fish--here, marginalized Black and Brown people--while making the fishbowl, or the ways of thinking in society that produce race and sustain racial hierarchy through law.

This Article examines the intersection of racism and law as an intellectual foundation that allows algorithms to expand in society. It illuminates and critiques deeply embedded racial assumptions in society expressed through the law around algorithms as criminal legal reform. Unpacking these assumptions demonstrates the contemporary, intersectional production of race and racial hierarchy in the United States. Socially constructed and historically contingent racial assumptions expressed in the law stabilize algorithms as criminal legal practice. These same racial assumptions normalize and legitimate the production of whiteness and white supremacy in society through law. Normatively, this Article shifts the grammar of racial justice at the intersection of law, technology, and society. It proposes a legal perspective to expand the normative horizons of legal critiques of algorithms going forward.

This Article analyzes three embedded social assumptions about race that are expressed in the law around algorithms. First, I consider the conceptualization of the algorithm as an inevitable criminal legal reform. In part, this claim relies upon the notion that the algorithm can resolve a pernicious threat that criminal legal actors cannot make individual decisions independent of permanent racial prejudices. This notion relies upon a belief about racism that constitutes whiteness as a race. The idea that racism is too difficult to overcome without nonhuman intervention legitimates race as a nonhuman, rather than social, phenomenon. It also depoliticizes algorithms as a legal response to mass incarceration. Second, I examine the conceptualization of the algorithm as imposing de minimis social costs in criminal law's administration. Yet algorithms pose significant material and epistemic costs facilitated by law. Assumptions about the morality of the algorithm as an antiracist intervention shape normative judgments about which costs are bearable, and which costs are politicized. Depoliticizing certain costs make whiteness a basis to exit criminal law's disciplinary function in society. Third, I consider assumptions about the nature of race itself. Legal scholarship debates whether and how law can address racial disparities produced by algorithms used in the criminal legal process. These debates are race-constructing. In questioning whether and how law should permit consideration of race in the construction of algorithms, this discourse produces a specific racial assumption through law: the notion that race is fixed in society. This assumption gives race social and political meaning; it makes structural marginalization distributed along racial lines appear natural and beyond redress.

In short, racial assumptions expressed in the law are fundamental to the expansion of algorithms as criminal legal practice while algorithms sustain ways of thinking in society that legitimate race and racial hierarchy in the information age. Recognizing these connections among race, this technology, and the law sets a foundation to expand and reframe the emerging legal scholarship around algorithms as criminal legal reform. Unlike existing scholarship, which tends to question whether and how algorithms can be applied rigorously under the law, this Article does not proscribe a “fix” to the algorithm or the law around it. To the contrary, this Article demonstrates that such an approach leaves untouched the transitory racial assumptions legitimated through the intersection of this technology and law. Yet, to interrupt the production of race and racial hierarchy, legal scholarship must destabilize contemporary racial assumptions, not just technology or law. I propose a legal perspective on algorithms as criminal legal practice that decenters the social phenomenon of mass incarceration to instead critically center racial assumptions in the law. While this approach may leave a reader seeking a legal fix to algorithms and criminal law's administration unsatisfied, it expands the foundation for legal scholars to engage with racism through the law going forward. Whether urging regulation or abolition of algorithms, legal scholars can better structure their interventions to make visible social assumptions about race in the law. Such an approach reminds us that racism in society remains complex. Our responses to it in law should be as well.

This Article enhances at least three burgeoning areas of legal scholarship. First, it illuminates mass incarceration as a social concept that facilitates legal transformation. Much scholarship urges specific legal transformations based on divergent conceptualizations of mass incarceration. In contrast, this Article demonstrates that it is because mass incarceration is a racialized phenomenon that we choose to change the law in particular ways. Thus, our responses to mass incarceration reveal contemporary racial assumptions present in society. Second, this Article provides a theoretical foundation to expand critiques of algorithms on the basis of race. Existing critiques of algorithms emphasize the carceral supervision component to race production, while critical race interventions underscore the problematic connections between race, prediction, and criminality in relation to algorithms in criminal law. This Article treats algorithms as a technical process that standardizes ways of thinking in criminal law's administration. Through this perspective on the technology, I bring to the fore a separate set of underlying contemporary racial assumptions expressed in the law that function to normalize racial hierarchy in society. Third, by centering racism as an intellectual foundation for algorithms, this Article begins to imagine a more expansive approach to scholarship at the intersection of law and technology. Though this Article examines the production of race and the expansion of algorithms in the context of criminal law, the methodological approach proposed here can be applied in legal scholarship across many spaces in society where algorithms and other technological interventions are deployed. Accordingly, this contribution expands the ways in which legal scholars can destabilize constitutive power embedded within, and represented by, technological practices going forward.

The Article proceeds in four parts. Part I describes the state of legal scholarship around algorithmic risk assessments as criminal legal practice. Part I situates dominant critiques within two diverging perspectives on mass incarceration. Part II demonstrates that, through both perspectives, legal scholarship on mass incarceration tends to treat race as a social fact that already exists in the social world upon which algorithms in criminal law act. Drawing insights from critical race scholars, I argue that this assumption must be challenged in law. Part III theorizes on the production of race and racial hierarchy at the intersection of technology and law. I bring to the fore, and critique, specific racial assumptions that facilitate both the expansion of algorithms as a response to mass incarceration and the social production of whiteness and white supremacy through law. Part IV reflects on the implications of this theoretical critique for legal scholarship going forward.

A note about terminology is important before moving forward. By “racism,” I refer to a mode of thought shaped by racial assumptions and a set of human practices influenced by that mode of thought. This Article foregrounds racial assumptions in the law around algorithms that facilitate the social production of racial hierarchy and race, together referred to as “racial difference.” These assumptions combine to demonstrate how the law around algorithms contributes to the hierarchical production of human difference through assumptions about race expressed in law. I invoke the “deeper normative, critical thrust” of the term “racialization” in my prescription. That is, this Article urges legal scholars to approach algorithms in a way that promotes critical reflections on the complex ways racism continues to structure society at the intersection of technology and law going forward.

[. . .]

This Article proposes a major shift in conceptualizing the problems algorithms present in society at the intersection of race and law. It reveals deep-seated racial assumptions embedded in society that propel the expansion of algorithms as criminal legal reform. These same racial assumptions function to normalize race as a salient social category, while justifying the distribution of resources in society along racial lines through law. Though existing legal scholarship recognizes algorithms as a controversial criminal legal practice, it fails to consider how racism structures legal discourse. Said differently and following the Toni Morrison quotation at the opening of this Article, existing legal scholarship captures the fish; it may even encompass the pebbles and the castles. However, it does not begin to conceptualize the fishbowl. Yet, to begin imagining fully a different, more equitable world, this Article reminds us that we must see racism as a fishbowl that “transparently (and invisibly)” structures our lives through law.

Normatively, this Article urges a structural change in legal scholarship to help render visible otherwise-invisible structures of thought functioning at the intersection of technology, society, and law. The theoretical analysis set forth in this Article reveals how law operates as a tool to express racial assumptions through collective social action concerning algorithms as criminal legal reform. But while law may facilitate this social process, it can also destabilize it. Currently, legal scholarship tends to destabilize technology, the law, or both. It leaves untouched racial assumptions expressed at the intersection of technology, the law, and society. This Article proposes a legal perspective that critically centers race and racism at its intersection with technology and criminal legal reform going forward. One need not imagine that such a discursive shift will immediately end the production of racial difference through law. It is enough that racializing the legal discourse differently can challenge the complacency within which we all live socially and historically contingent racisms. In so doing, legal scholars can contribute to the important project of searching for “the words to say it.”

Professor of Law, Indiana University Maurer School of Law.