You can't teach computers empathy and empathy is part of our legal system for better or for worse.
Why?
Your argument seems to be that without empathy in the legal system people would go to prison for stealing a loaf of bread. That doesn't really make sense,
My argument would be that with empathy in the legal system, unlikeable people from the wrong minority with an unhappy judge would go to prison for stealing a loaf of bread.
There is so much disproportionality in the legal system that has arisen from gut feelings and a lack of objectivity - not just obvious things like racism but even just some crimes having far harsher punishments than more damaging ones because they're easier to get angry about.
Formalizing things like reduced punishments for crimes with lower damage (aka. bread is cheap) or born of necessity (aka. the thief can't afford food) seems so trivial a concern in comparison. Obviously formalizing more complex issues is also hard, but the bar to beat isn't set particularly high.
And what about other things, how about a father who killed the man who raped his daughter? Or a woman who hired some one to kill her abusive partner? How would you estimate damage? it's easy to do with itemised goods but how do you estimate the damage of being abused, raped, how do you put a value on someone's life?
These are things we haven't even managed to fully grasp and defined yet, and you want us to define that to a computer? How are you going to form a legal argument that can lead to a new precedent to a computer?
Of course what I just said is kind of comical at first glance, but in all honesty, and to absolutely agree with and add to your point, the exploits related to Ethereum are great examples of how something seemingly infallible that is set in stone can easily turn out to be an Achilles' heel, which then, just like in the case of Ethereum, requires human intervention, bringing it back full circle.
Also, to add to this, as @hackuser mentions[1], the system, even if set perfectly in stone, will still be based on somebody's biases.
Yes but these are going to be "fixed" biases, where a judge's ones are not.
A judge can be argued with, it can be presented with the case in a different manner, it can be given precedents which might be relevant for this case because of it's unique circumstances.
Overall a system that has a fixed set of "biases" is still "impartial" it's just utterly static, it would have it's penal code and some large list of if this then that's in regards to how to execute it's judgment.
So while it might have if (crime.type = theft && crime.subject = food && crime.offender = parent.single) { return show.sympathy(); } you won't be able to change that by arguing for or against it and that's what our legal system is based on.
This is why we have defense and prosecution rather than simply running the crime through some flow chart to figure out if you are guilty and if so what the punishment should be.
> And what about other things, how about a father who killed the man who raped his daughter? Or a woman who hired some one to kill her abusive partner?
I don't get what makes these particularly hard questions. You have a motive and a crime. There will be some prior on how much a motive adjusts for a crime.
Obviously there is no "correct" answer, as it's a philosophical question. The important thing is that it's a decision made consistently and detached from the specific biases of each case.
> How would you estimate damage? it's easy to do with itemised goods but how do you estimate the damage of being abused, raped, how do you put a value on someone's life?
People already put a value on people's lives. The problem isn't that such a value is inherent to law, it's that it's applied neither consistently or reasonably.
A simple approach to this is to decide upon some general conversions - how much a life is worth, for instance - and when it comes to specific instantiations one can relatively straightforwardly make reasoned deductions about how much suffering a given instantiation of a crime (aka. a specific class of rape) causes in the general case. This would be born of largely of research into the long-term quality-of-life effects of these events, plus a heuristic measure of how much short-term suffering is inflicted.
The difference here isn't that this deduction has to be done. The difference is that this deduction won't change because you're black, because you're rich or because your judge had a leg cramp when they woke up. The difference is that rather than being based on how bad a crime sounds, there is at least some attempt to measure the impact of the damage done.
> How are you going to form a legal argument that can lead to a new precedent to a computer?
Most crimes that we should care about are uninteresting crimes. These are things like violence, property crime and drug offenses and make the vast majority of crimes. New precedents can still be handled on a case-by-case basis (albeit with more regularization to fit the prescribed bases for punishment).
I found out this actually happens recently (if you have a record in Canada). A recent client of my lawyer partner had a past record ( domestic abuse and one more minor crime) and went to prison for stealing about $15-20 of food because he was hungry.
Regardless I know what you're saying. But there may still be the potential for a computer in the future which can analyze the context of the past thousands and thousands of human judge cases with machine learning algorithms. So it's not just a literal interpretation of law.
The challenge is establishing parameters such as previous record, age, grievousness of crime, etc. The goal is to provide a balance to human emotion. Maybe the solution here is providing that to judges, prosecutors, and defense attorneys through technology.
But if we were going to go that route eventually, perhaps a system where a judge is provided the "impartial" judgment as additional information or where the decisions are reviewed by a judge before sentencing and could be lessened/cancelled but not increased?
That is basically what we do in the federal system. Judges have to calculate sentences using a mechanical, point-based system called the U.S. Sentencing Guidelines. The judge has discretion to depart from the calculated sentence, but in practice the guideline sentence has a powerful anchoring effect.
And it's terrible. Turns out that its much easier to formulate a system with inhumanely long sentences when you're a committee developing an abstract point-scoring system than when you're an individual judge faced with deciding the fate of a living, breathing human in front of you.
However we do take account for both the letter and the spirit of the law when making a judgment, and we take account of the circumstances and the nature of the crime, the offenders and the offended parties.
We also make arguments based on the spirit of the law that do appeal to our human nature and empathy at large and this is a very important part of our legal system.
You would not want to see a judicial system where this isn't possible, you see this usually under martial law and other authoritative regimes were all crimes and all offenders are equal to the law and receive the same and often harsh punishment.
Even tho in the US the execution of the legal system might not be perfect, or quite far from it depending on how you look at it the principles of it are pretty important, if was pretty much the first legal system where we said we will not throw people to jail for being in debt, it was one of the few legal systems that did hold itself to higher standards of justice and equality.
And you can't have that with computers, not only because you can't teach them those things but because a legal system isn't some static list, it isn't the 10 commandments.
Our legal system is a living and breeding organism and judges, arbiters and lawyers are it's organs without them debating and arguing the legal system would "die". You won't have new arguments, you won't have new precedents for the most part the entire legal system would grind to a halt and the only thing you'll have remaining is a penal code.
And trust me you do not want to live under a legal system which is in a effect a static and impartial penal code.
Empathy in the end comes from knowing about the person's background and, assuming it's possible to provide this information to a software program, it could make a decision as good, and maybe better, than a judge (if anything, that will allow the judge to spend time on more complicated cases). Also it's well known that, for instance, less attractive people get harsher sentences, and machines will be completely immune to this kind of bias.
Anyway, an algorithm judgement should not be blindly trusted, and there should be plenty of checks to make sure someone doesn't accidentally get NaN years of detention, but it could have its use.
I don't see evidence of much empathy in the US justice system.
My experiences have been pretty positive in that I was able to avoid jail time or anything going on my record that I would have to explain to a potential employer.
For the minor stuff I've been to court on that I handled myself, I've always gone in a suit and tie and been very respectful to the DA. Both times, he basically put me on probation and then told me to get out of his court.
The other times I've been to court and required an attorney, I took the financial hit in order to avoid having to go through the system. Again, every time I was able to get out unscathed. I had decent attorneys that were able to make deals with the DA's for reduced sentencing, longer probation, etc. Everything was usually done before I actually had to appear in court.
So shy of being incarcerated and having to go through the system (arrest, posting bail, court appearance, and having to serve jail time) I've had fairly positive experiences.
You?
It would be just as partial, but instead of the judge's biases it would reflect the preferences of other humans, the software developers and whoever controls them.
I think there's a great risk in misrepresenting to the public that computers are somehow impartial, and not representative and under the control of human interests. It's like saying a legal contract is impartial.