This short story is a work of fiction originally submitted for the Legal Tech Fictional Writing Competition hosted by the American Bar Association’s Young Lawyers Division and the Access to Justice Tech Fellows and sponsored in part by LexBlog. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the author and the American Bar Association. Copyright 2021.
by Hema Lochan, Fordham University School of Law
Melanie was so frustrated that her hands started to shake, causing the coffee to spurt out of the small opening at the top of her to-go cup. Luckily, none of it landed on her. “Are you serious right now?”, she said to no one in particular who could understand her, but her anger was directed at the small scanner right in front of her.
“No Attorney detected,” an emotionless voice announced once again, for what felt like the hundredth time.
“Hey, you want me to help?” Melanie turned around and Jason Smith was walking through the door. He was dressed in his Giorgio Armani suit that he constantly made sure everyone knew was Giorgio Armani. He stood next to Melanie and the blue light of the scanner moved down his face.
“Attorney detected”. Melanie heard the click of the small turnstile unlock. Jason turned to Melanie with a smirk, “You can just go in with me if you want, Mel”. That was the last thing on earth Melanie wanted to do, and she hated when Jason called her Mel. He never asked her if it was alright to shorten her name, he just started doing it. For a brief second, Melanie contemplated “accidentally” spilling her coffee on his Armani suit, but took a deep inhale and refrained. “It’s fine. I’ll just take the civilian entrance. Again.”
“I do not understand why this keeps happening to you. It is probably all of that makeup. I keep telling you, Mel, you don’t need to wear so much. Maybe then the scanners would start recognizing you.” Melanie hurried away before she flung the coffee cup at Jason’s head. Of course Jason wouldn’t understand. He had more issues of his suit not being detected as designer than him not being detected as a person.
As Melanie exited the building to walk around to the general entrance that had a human-staffed security station, she started to have flashbacks of taking the Bar exam. She remembered looking into her bathroom mirror and applying a thin layer of baby powder on her face before walking into her room and logging into her computer. “Just pat it on your face so it raises your skin tone just a little,” her mentor had told her. In 2021, during the prolonged midst of the COVID-19 pandemic, the Bar exam was officially moved online, which annoyed Melanie to no end. She was one of the students at her school advocating for the Bar exam to be abolished altogether, but it seemed to go through one ear and out the other of the Bar Exam Administrators. Even though it was made remote a few years ago, it still had many technical issues that still hadn’t been worked out despite the numerous complaints by law students, professors and recent graduates, mostly those of color. Melanie’s mentor, who was also a Black woman, failed her first attempt because the online server could not detect darker skin tones, and so she was marked as absent and could not be admitted to take the test.
Melanie passed the Bar exam on her first try but was not a fan of facial recognition technology ever since. When she found out the Court she worked in was switching to scanners to admit attorneys, she went out and bought foundation that was two shades lighter, just because she knew it was going to happen again. But makeup was expensive, especially on a Public Defender’s salary, and she had ran out of it a few days ago, when the scanner started to give her problems. She even tried to compensate with different types of makeup, but it still would not recognize her and let her in. But it had no issue with Jason, a white man, who constantly strolled in. “Why did we need to install these scanners?” she had asked one of the Court clerks during the first few weeks of the new transition. “It makes this more efficient,” was their reply. Melanie thought to herself, Efficient only for certain people.
“Just like the law,” Melanie mumbled under her breath.
“I am sorry, did you say something, Miss?”
“Oh! No sorry, it was nothing.” Melanie had gotten so lost in her thoughts that she didn’t realize she had been on autopilot and joined the line to get scanned for entry.
“Melanie, what are you doing here again? Miss Attorney this entrance isn’t for you!” Bennie, the security guard teased. Melanie smiled, “Just wanted to say hi to my favorite officer – Hi Carol” she said leaning over to the Bennie’s partner. All three of them started to laugh.
“Have a nice day, you two!” Melanie said as she scurried off to the waiting area to meet her client.
“Stay out of trouble, Miss Attorney!”
Melanie light jogged into the hallway where clients were waiting. “Mr. Jones! So sorry I am late!”.
“No worries, Melanie”. Mr. Jones smiled and slowly got up. He was an elderly man who wore both his worries and his joys in his eyes. Melanie waved weakly at the probation officer. “Mr. Jones, let’s go into one of these rooms and speak.”
Melanie tried to find an empty room – she accidentally walked into a room with Jason and one of his clients. Jason look flustered reading through documents and his client looked annoyed. Melanie never understood how or why he chose to become a public defender.
They went into another one of the empty dim-lit rooms that only had one chair. Mr. Jones looked up at Melanie and gestured towards the chair. “Oh no, please sit Mr. Jones, I am fine. I have my coffee, that’s all I need.”
“Well if you insist,” Mr. Jones sat gingerly down on the chair.
“How are you doing, Mr. Jones?”
“Honestly, Melanie, I just want to get this over with. I want to get my time over with.”
“Time? Mr. Jones, you shouldn’t be getting time. You accidentally used someone else’s credit card. That’s it. You may have to pay a fine, but that doesn’t warrant jail time.”
“Do you think the judge will think so?”
Melanie paused. Judge Wilkins, who was assigned to their case, was her least favorite judge and Melanie’s track record with him was less than ideal. Most of her clients were men of color, which Judge Wilkins did not seem sympathetic to at all. But this elderly man accidentally using a credit card that he found for groceries could no way get turned into jail time, even if he was Black. It wasn’t possible – any reasonable person could see that. Melanie was hopeful she’d also be able to waive any financial penalties and give Mr. Jones peace of mind.
Melanie could hardly believe what Judge Wilkins had said. “So it is ordered.”
“W-what? How?” Melanie stuttered.
“I had my clerk upload Mr. Jones’ data to our new program, and six months was the correct sentence.”
“Correct sentence? New program?” Melanie’s brain was still processing.
Judge Wilkins nodded to the notice that was on the form table near the court reporter’s desk.
NOTICE: As of 12/10/2023, sentences will be determined by sentA.I.ncing, a new program backed by artificial intelligence that delivers unbiased calculations of sentences for misdemeanors and felony charges.
“What data?” Melanie asked, looking up from the notice.
“What data regarding Mr. Jones was uploaded?” Melanie could not help the fact that her voice rose. She was trying everything possible to stay composed. She already knew the answer to her question, but wanted to hear it from the judge.
“I do not know what you are suggesting, but this program is unbiased and predicts probability of repeating offenses and uses a multitude of demographic data and previous court decisions. You should be happy this new program is so equitable, and you should think twice before you raise your voice in my courtroom again. Court is in recess, please get out.”
Melanie bit her tongue and shifted focus to Mr. Jones, who she could barely look in the eyes, but when she did she saw him smiling at her. “You didn’t fail us, Melanie, they did. You did what you could.” The officer escorted him out.
Melanie went numb and walked to the restroom to splash water on her face.
“SentA.I.ncing.” She felt anger.
How could people just blindly trust this program? Didn’t they see how it just continued the already biased patterns of court decisions? Melanie had no doubt that if Mr. Jones was white or came from a wealthier background, jail time would have never been considered. To some people A.I. is “efficient” but to Melanie, A.I. was just as bad as racist judges. No, it was worse, because A.I. could claim to be unbiased. It wasn’t.
Melanie exited the restroom just as Bennie was walking by.
“Miss Attorney, are you alright?” Melanie looked up at Bennie with Mr. Jones’s words playing over in her mind. “They failed us,” she said shaking her head.
“They failed us.”