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![handle is hein.journals/jclconl114 and id is 1 raw text is:
0091-4169/23/1 1400nline-0001
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 114 Online
Copyright © 2023 by Kiel Brennan-Marquez & Stephen E. Henderson Printed in U.S.A
ROLE-REVERSIBILITY, Al, AND
EQUITABLE JUSTICE-
OR: WHY MERCY CANNOT BE
AUTOMATED
KIEL BRENNAN-MARQUEZ & STEPHEN E. HENDERSON*
A few years ago, we developed the concept of role-reversibility in Al
governance: the idea that it matters whether a party exercising judgment is
reciprocally vulnerable to the effects of judgment. This idea, we argued,
supplies a deontic reason to maintain certain spheres of human judgment
even if (or when) truly intelligent machines become demonstrably superior
in every utilitarian sense. While computer science remains far from that holy
grail, generative AI is raging through systems as diverse as healthcare,
finance, advertising, law, and academe, making it imperative to further shore
up our claim. We do so by situating role-reversibility within the long arc of
criminal justice philosophy, from Anaximander to Aristotle to Seneca. Simply
put, role-reversibility facilitates mercy. And mercy is both (1) central to the
operation of a humane legal system and (2) impossible, even in principle, to
automate.
[T]he horrible thing about all legal officials, even the best, about alljudges, magistrates,
barristers, detectives, and policemen, is not that they are wicked (some of them are
good), not that they are stupid (several of them are quite intelligent), it is simply that
they got used to it. Strictly they do not see the prisoner in the dock; all they see is the
* Kiel Brennan-Marquez is a Professor of Law, the William T. Golden Scholar, and
Faculty Director of the Center on Community Safety, Policing and Inequality at the University
of Connecticut; Stephen E. Henderson is the Judge Haskell A. Holloman Professor of Law at
the University of Oklahoma. We are grateful to Amin Ebrahimi Afrouzi for engaging with our
work, to The Journal of Criminal Law & Criminology for its continued interest in the same,
to Guha Krishnamurthi and Kelly Sorensen for comments upon drafts, and to Shawnda
Henderson and librarian Jacob Black for exceptional research assistance.
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