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"Pre-crime' judgment a thing of the future? It's already here

September 15, 2017

Megan Stevenson

Judges around the country are using computer-generated algorithms to predict the likelihood that a person will commit crime in the future, said George Mason University law professor Megan T. Stevenson. Those predictions are used to help determine pretrial custody, sentencing, prison security levels, parole and other judicial decisions.

This “pre-crime” vision of law enforcement was anticipated by science fiction writer Phillip K. Dick in his dystopian 1956 story “Minority Report,” made into a movie in 2002 by Stephen Spielberg. Many thought the story was a cautionary tale of extra-legal excess.

Stevenson, an economist who studies legal policies and teaches at George Mason’s Antonin Scalia Law School, is aware that the use of “predictive risk assessments” is controversial, particularly since they can influence racial bias.

But in the end, she said, “Risk assessments are only tools, built by humans and used by humans. Their impacts depend crucially on the details of implementation.”

And besides, added Stevenson, “we already live in a ‘Minority Report’ state. The practice of grounding criminal justice decisions on predictions about future crime has been around a long time. The recent shift toward adopting risk assessment tools simply formalizes this process—and in doing so, provides an opportunity to shape what this process looks like.”

Andrew Peterson, a professor in the Institute of Philosophy and Public Policy at Mason, cautioned that the use of predictive analytics in criminal justice “could have at least two serious ethical implications.”

One, the data could be wrong.

“They could be wrong in that they could fail to predict the behavior of a would-be criminal, or that they could erroneously predict criminal behavior in a law-abiding citizen,” he said. Those creating the algorithms have to make value judgments about these kinds of errors. “These judgments could be influenced by personal bias, including political and racial,” he said.

Also, “it isn’t clear what amount of data ought to trigger the prediction that an individual is going to commit a crime,” Peterson said. “We can imagine cases in which we might ‘jump the gun.’ In such circumstances, we might run up against the constitutional protections of the accused—and the dubious notion of accusing someone of a crime before it is committed.”

Megan Thorne Stevenson can be reached at 703-993-8535 or

Andrew Peterson can be reached at 703-993-1329 or

For more information, contact Buzz McClain at 703-727-0230 or

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George Mason University is Virginia’s largest public research university. Located near Washington, D.C., Mason enrolls 35,000 students from 130 countries and all 50 states. Mason has grown rapidly over the past half-century and is recognized for its innovation and entrepreneurship, remarkable diversity and commitment to accessibility.