Because plea bargaining is usually about disposition rather than guilt or innocence, the discussion in Chapter 8 transitions nicely into Part III, which is mostly about sentencing. People on both the left and the right acknowledge that our current punishment system is overly dependent on prolonged incarceration and that our astounding imprisonment rates need to be reduced. Chapter 9 argues that the antidote to our hyper-punitiveness is preventive justice, which relies heavily on empirical assessments of recidivism risk and intervention needs. While this type of regime would still depend on retributive criteria to set (broad) sentencing ranges, it replaces the current emphasis on calibrating sanctions according to the culpability of offenders with a focus on whether imprisonment is needed to protect the public. After describing preventive justice in skeletal form, the chapter explains why this approach to sentencing could become a critical tool for reducing incarceration and the harms it causes, without increasing the threat to public safety. The chapter also addresses constitutional and philosophical concerns about a regime focused on prevention. Most importantly, it explains why preventive justice is not Minority Report in disguise.

Although proponents of online dispute resolution systems proclaim that their innovations will expand access to justice for so-called “simple cases,” evidence of how the technology actually operates and who is benefitting from it demonstrates just the opposite. Resolution of some disputes may be more expeditious and user interface more intuitive. But in order to achieve this, parties generally do not receive meaningful information about their rights and defenses. The opacity of the technology (ODR code is not public and unlike court appearance its proceedings are private) means that due process defects and systemic biases are difficult to identify and address. Worse still, the “simple cases” argument for ODR assumes that the dollar value of a dispute is a reasonable proxy for its complexity and significance to the parties. This assumption is contradicted by well established research on procedural justice. Moreover, recent empirical studies show that low money value cases, which dominate state court dockets, are for the most part debt collection proceedings brought by well-represented private creditors or public creditors (including courts themselves, which increasingly depend on fines and fees for their operating budget). Defendants in these proceedings are overwhelmingly unrepresented individuals. What ODR offers in these settings is not access to justice for ordinary people, but rather a powerful accelerated collection and compliance technology for private creditors and the state. This chapter examines the design features of ODR and connects them to the ideology of tech evangelism that drives deregulation and market capture, the aspirations of the alternative dispute resolution movement, and hostility to the adversary system that has made strange bedfellows of traditional proponents of access to justice and tech profiteers. The chapter closes with an analysis of front-end standards for courts and bar regulators to consider to ensure that technology marketed in the name of access to justice actually serves the legal needs of ordinary people.

Advocates for wide sentence ranges based on retributive principles, with particular sentences presumptively set at the minimum of the range unless an individual is determined to be high risk based on a valid risk assessment, and explains how this regime would reduce the plea bargaining power of prosecutors

Describes the four purposes of the book: to explain how risk algorithms work, to engage criticisms of those algorithms, to develop principles governing their use, and to describe a sentencing regime that optimizes their benefits