Criminal Defendant Rights Getting Trampled By “Trade Secrets”

The fate of criminal defendants is increasingly being determined by algorithms brought to bear at various stages of the process, including sentencing and parole. When defense attorneys want to challenge these computer-generated decisions in the obvious way, by challenging the logic that was employed to arrive at them, they are often being told that’s a trade secret. “This is a new and troubling feature of the criminal justice system,” writes Rebecca Wexler, in a New York Times oped. “Property interests do not usually shield relevant evidence from the accused. And it’s not how trade secrets law is supposed to work, either.” The Supreme Court, she points out, is now considering hearing a case, Wisconsin v. Loomis, that would address this issue. “If it hears the case,” she writes, “the court will have the opportunity to rule on whether it violates due process to sentence someone based on a risk-assessment instrument whose workings are protected as a trade secret. If the court declines the case or rules that this is constitutional, legislatures should step in and pass laws limiting trade-secret safeguards in criminal proceedings to a protective order and nothing more.”