The Imperishable Record, Forgiveness, and the Future of Criminal Justice

Mark Fenwick, Paulius Jurcys, Sebastian Porsdam Mann

Digital technologies can preserve records of wrongdoing indefinitely, and AI can give those records continuing influence over a person's future. We describe this condition as the eternal data present and argue that it threatens the possibility of forgiveness. In criminal justice, formal punishment has an end, whereas the harms caused by the continued use of criminal records may not. Drawing on Hegel's account of the "hard heart" and Arendt's account of the irreversibility of action, we distinguish two dangers that digital systems can combine. People may be permanently identified with what they have done, and acts that cannot be undone may continue to determine what happens to them. We propose a right to remain unfinished, supported by rights to limits on the weight given to older records, to re-evaluation in light of personal change, to reassessment of inferences that affect their lives, and to time limits on the use of records in specified decisions. These proposals extend the ethics of AI beyond accuracy, transparency, and non-discrimination to address how long past wrongdoing should be allowed to govern a person's life.