As with most new things, the big data revolution in criminal justice has historic antecedents—indeed, a 1965 Presidential Commission called for some of the same data analysis that police departments and courts are today developing and implementing. But there is no doubt we are on the precipice of a criminal justice data revolution, and it is a good time to take stock and to begin developing guidelines so that, as much as possible, criminal justice systems might reap the benefits and avoid the pitfalls of this newly data-centric world. In that spirit, I propose nine high-level standards to guide criminal justice big data implementations.

Rule One: Bring Technology to the Problem

Rule Two: Bring Only Credible Technology to the Problem

Rule Three: The Decider Should Be Human

Rule Four: The Code and Decision Algorithm Should Be Accessible (Though Not Necessarily Public) But the Decision Algorithm Need Not Be Humanly Comprehensible

Rule Five: Any Technology Implementation Should Balance Costs and Benefits

Rule Six: Any Proposal for Privacy-Based Restriction on Government Technology Should Consider Non-Government Use

Rule Seven: Any Claim to First Amendment Rights in Consumer Data, Algorithms, or Algorithmic Results Should Be Opposed

Rule Eight: Any Significant Technology Implementation Should Proceed Only With Public Notice and Comment

Rule Nine: Most Decisions Should Be Made by the States

Read the full article – Henderson, Stephen E., A Few Criminal Justice Big Data Rules (2017). Ohio State Journal of Criminal Law, Forthcoming.

Stephen E. Henderson

University of Oklahoma College of Law

Stephen E. Henderson is the Judge Haskell A. Holloman Professor of Law at The University of Oklahoma College of Law. Professor Henderson teaches, writes, and speaks about criminal law, criminal procedure, and privacy. Henderson has been honored to receive teaching and scholarly awards, has served as Reporter for the American Bar Association Criminal Justice Standards on Law Enforcement Access to Third Party Records, and has taught in Batumi, Georgia, in a summer program hosted by that nation’s Constitutional Court.  He is co-editor of The Cambridge Handbook of Surveillance Law, and his personal writing has been argued and utilized in resolving contemporary search and seizure controversies at the state and federal levels.


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