Dartigue urges ‘creative lawyering’ to combat AI bias

Listen to this article

OCEAN CITY — Maryland Public Defender Natasha Dartigue on Wednesday urged “creative lawyering” on behalf of clients who may have faced discrimination by opaque artificial intelligence tools.

Dartigue, who is set to take over as president of the Maryland State Bar Association at the end of the week, gave a presentation at the MSBA‘s annual Legal Summit about how algorithms can discriminate against women and people of color in criminal justice and employment.

At least 10 Maryland jurisdictions use AI tools to set bail and recommend sentences with no oversight, Dartigue said, leading to many people being incarcerated because they were deemed “high-risk.” Many job applicants get rejected, she added, without a human being ever reviewing their applications.

To illustrate the point, she told a fictional story of a Black woman named Shanna; she said the story was a “composite” based on many clients represented by the Office of the Public Defender.

Q&A: Incoming MSBA President Natasha Dartigue

She said Shanna had applied to four dozen jobs, but her applications were denied by the employers’ AI filters despite her 10 years of experience. After six months, her savings had been depleted and she had fallen behind on rent, and she was arrested after shoplifting $73 worth of groceries.

She was denied bail after being scored “high-risk” by an AI tool due to her lack of a job and unstable housing. After 93 days in jail, the charges were dropped.

“The reality is that there is nothing wrong with her,” Dartigue told the lawyers in attendance. “Something is wrong with the systems. I want you to think of that from a disparate-impact point of view.”

Dartigue recommended strategies for attorneys to mitigate harm to their clients and to pursue accountability from tech companies and the employers and governments that use their tools to assess job applicants and criminal defendants.

She urged them, for example, to challenge risk assessments, to demand the right to understand the basis of their clients’ detention and the right to challenge evidence, and to use the “Daubert standard” strategically. She recommended motions in limine to exclude prejudicial evidence as well as actions under the Maryland Fair Employment Practices Act.

“We have to push the envelope,” Dartigue said. “We have to file the motions. We have to ask the questions.”