Research On Algorithmic Decision-making Intervention In Sentencing Under Big Data

As early as the 1980 s,Chinese scholars began to study how to use computers for sentencing.However,due to the technical level,no significant results have been achieved.For many years thereafter,scholars continued to dig deep in this field and developed several sentencing assistance systems with the characteristics of the times.However,most of these systems have not been promoted due to poor use effects.With the rapid development of computer science and big data technology,as well as the need for the construction of "smart courts",once again,algorithmic decision-making interventions in sentencing research have provided possibilities and opportunities.At present,the courts of some economically developed provinces and cities in my country have independently developed a number of sentencing auxiliary systems and are trying to substantively intervene in sentencing.The latest sentencing aid systems developed by legal technology companies and universities have been developed at the level of international standards.In the context of the fourth technological revolution,the combination of algorithms and justice has become a general trend.Algorithmic decision-making intervention in sentencing under big data has the value of improving judicial efficiency,finding the optimal sentencing result from judicial precedents,reducing the subjective arbitrariness of sentencing,and realizing the same sentence in the same case.Although my country’s research on algorithmic decision-making intervention in sentencing and judicial practice is developing well,due to the late start of the research on algorithmic intervention in justice in my country and the immature development,there are still some legal issues that need to be improved by our scholars,such as the auxiliary status of algorithmic decision-making.Unclear connotation,low quality of data based on decision-making,opaque algorithms,algorithm discrimination,and algorithmic decision-making may not always lead to a legitimate conclusion.In this regard,this article believes that the connotation of the auxiliary status of algorithmic decision-making should be clarified from the three perspectives of the degree of algorithmic decision-making involved in sentencing,the scope of use and the way of use,strengthen the judge’s reasoning obligation,and timely perform data cleaning to ensure the quality of legal big data..To solve the problem of algorithm opacity,it is necessary for algorithm developers and users to distinguish between stages,and explain the algorithms for different interpretation objects in a concise and easy-to-understand manner.In addition,algorithmic monitoring and accountability mechanisms must also be implemented.Before decision-making,the government’s science and technology department will conduct algorithmic impact assessment on the algorithmic decision-making system to clarify the possible impact of the system and the existing risks and levels to realize the legality,transparency and legitimacy of the algorithm;the decision-making process is given the right to know and correct the decision.Right,erasure,etc.,to correct and erase erroneous data and irrelevant data related to the person concerned,to protect the basic rights of the decision-maker;after the decision is made,three situations of decision-making errors are distinguished-the fault of the developer and the use of the algorithm The malicious collusion between developers and developers leads to unfair decision-making systems and limited technical levels.Algorithm developers and users bear different types of responsibilities.For the first two cases,no-fault liability applies.The algorithm developer and user shall bear unreal joint liability,and the algorithm user,the court,shall bear the responsibility first,and then the court shall hold the algorithm developer accountable;for the third case,Due to the public nature of algorithmic decision-making,algorithm users must exercise more care and use algorithmic decision-making cautiously.Therefore,even if the algorithm is unfair due to technical limitations,the court should still bear the corresponding responsibility.