Back in February 2020, a court in Sabah, Malaysia made history when it become the first in the country's judiciary to use artificial intelligence (AI) to help mete out a court sentence. It was part of a nationwide pilot program that aimed to determine the efficiency of AI in sentencing recommendations, with the test set to end in April 2022.
It was "the first in Asia", said Chief Justice of Sabah and Sarawak, David Wong at the time. But for lawyer Hamid Ismail – whose two clients were handed prison sentences by the AI system – using it in Malaysia's courts isn't something we should be happy about. Not yet at least.
No proper consultation.
IMAGE: Bernama / Utusan Borneo
Ismail felt uneasy, knowing that the AI software – developed by state government firm Sarawak Information Systems – was being used before judges, lawyers, and the public even got the chance to fully understand it and the way it worked.
“Our Criminal Procedure Code does not provide for use of AI in the courts ... I think it’s unconstitutional,” Ismail said, adding that the AI sentence meted out to one his clients for minor drug possession was too harsh – 12 months jail for possession of 0.01g of methamphetamine.
According to Malaysian authorities, however, using AI in Malaysia's courts will help make sentencing more consistent. It could also help clear backlogs more quickly, and in a more cost-efficient manner.
Ultimately, Malaysian authorities feel that AI-sentencing “can improve the quality of judgement”, despite not being clear as to how exactly it does this.
Other critics of the AI-sentencing pilot say it risks worsening the bias against minorities and marginalized groups, not giving them a fair trial. Responding to this, Sarawak Information Systems says it has removed the 'race' variable from its AI algorithm.
In a 2020 report by policy think tank Khazanah Research Institute (KRI), the mitigating measures put in place in the AI software (like the removal of the 'race' variable) don't necessarily make the system perfect. And because the company only used a dataset of five years from 2014 to 2019 to train the algorithm, KRI says the system is "somewhat limited in comparison with the extensive databases used in global efforts".
The need for a 'human' mind.
IMAGE: Tingey Injury Law Firm / Unsplash
Ismail argues that when deciding on a sentence, judges don't just look at hard facts. They also use their own discretion, something that AI software might not even be capable of doing.
“In sentencing, judges don’t just look at the facts of the case – they also consider mitigating factors, and use their discretion. But AI cannot use discretion,” he told the Thomson Reuters Foundation. “Sentences also vary with changing times and changing public opinion. We need more judges and prosecutors to handle increasing caseloads; AI cannot replace human judges."
According to Simon Chesterman, a professor of law at the National University of Singapore, despite the benefits that technology may have in the criminal justice system, it can only be fully accepted if it makes accurate decisions in an appropriate manner.
“Many decisions might properly be handed over to the machines. (But) a judge should not outsource discretion to an opaque algorithm,” said Chesterman, who also happens to be a senior director at AI Singapore, a government program.
Beyond Sabah, courts in Malaysia's capital, Kuala Lumpur, started testing out the AI-sentencing software in mid-2021, using it against 20 different types of crime. Worryingly, however, Malaysia's Bar Council raised concerns about it, saying Kuala Lumpur courts were “not given guidelines at all, and we had no opportunity to get feedback from criminal law practitioners”.
Thankfully for Ismail, the judge presiding over his client's AI-sentence recommendation followed his appeal. But he worries that younger magistrates may just accept it without question.
“The AI acts like a senior judge. Young magistrates may think it's the best decision, and accept it without question."
Do you agree with using AI to mete out sentences in court?
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