Behavioral Sciences and the Law
Behav. Sci. Law 23: 367–386 (2005)
Published online 17 November 2004 in Wiley InterScience (www.interscience.wiley.com). DOI: 10.1002/bsl.619
From Discretion to
Disagreement: Explaining
Disparities in Judges’ Pretrial
Decisions
Mandeep K. Dhami, Ph.D.*
Judges are afforded considerable discretion in decisionmaking. Through their exercise of discretion, judges construct society’s notion of crime and justice. This study
examined 61 lay judges’ bail decision-making in the
English criminal justice system. The law states that in
particular cases decisions to grant bail or remand in
custody should be based on the risk of a defendant absconding, offending, or obstructing justice while on bail.
However, there is little guidance on how these judgments
should be made and how they should affect decisions. It
was found that judges varied (disagreed) in their risk
judgments and decisions on the same set of simulated
cases. The extent of judicial disagreement differed across
cases, and the source of disagreement in decisions lay in
the variability of judges’ earlier risk judgments. The paper
discusses how judicial disagreement may be reduced.
Copyright # 2004 John Wiley & Sons, Ltd.
Disparity in judicial decisions has been studied in the context of how cases that vary
in their ‘‘extra-legal’’ characteristics are treated (see, e.g., Bushway & Piehl, 2001;
Thomson & Zingraff, 1981), and how different judges treat cases with identical
‘‘legal’’ characteristics. This paper focuses on the latter form of disparity (also called
disagreement). Studies have found disagreement among judges’ sentencing decisions (e.g. Brantingham, 1985; Doob & Beaulieu, 1992; McFatter, 1986; Palys &
Divorski, 1986). There is also evidence of disagreement in pretrial decisions. An
example is that observed in English magistrates’ (most are lay judges) bail decisions
(Bottomley, 1970; Dhami, 2002; Dhami & Ayton, 2001; Hucklesby, 1996; Jones,
1985; King, 1971; Raine & Willson, 1994). This is a cause for concern because
pretrial decisions may affect later decisions to plead guilty, convict, and sentence
(see, e.g., Clarke & Kurtz, 1983; Davies, 1971; Kellough & Wortley, 2002; Rankin,
*Correspondence to: Mandeep K. Dhami, Department of Psychology, City University, Northampton
Square, London, ECIV OHB, UK. E-mail: [email protected]
I thank Peter Ayton, David Mandel, and Richard Wiener for their comments on an early draft of the
manuscript.
Contract/grant sponsor: Department of Psychology, City University, London, UK.
Copyright # 2004 John Wiley & Sons, Ltd.
368
M. K. Dhami
1964; Williams, 2003). Furthermore, judicial disagreement may lead to concerns
about the equitable treatment of cases and the accuracy of judges’ decisions (see,
e.g., Goldkamp, 1993).1
The differential exercise of judicial discretion may promote disagreement in
decisions. Indeed, judges are afforded considerable discretion by legal guidelines
that govern their decision-making (see Gottfredson & Gottfredson, 1988). It is
possible for the same judge to make different decisions on identical cases, or for
different judges to differ (disagree) in their decisions on identical cases. The former
captures unsystematic variability that reflects inconsistency due to random fluctuations in attention, perception, mood, and so on. The latter captures systematic
variability that reflects disagreement due to principled individual differences among
judges in addition to unsystematic variability (for a review, see Casey & Wilson,
1998). The study presented in this paper examines how English lay judges exercise
their discretion when making bail decisions, measures the extent of disagreement
among judges, and explains disagreement in decisions by variability in earlier bail
risk judgments. As will be noted in the Discussion section, the English bail system is
not too dissimilar from that of other jurisdictions such as America, Canada, and
Australia, and so the present findings have implications for the study of disagreement in various jurisdictions.
BAIL IN THE ENGLISH CRIMINAL
JUSTICE SYSTEM
In England and Wales, judges must decide whether to (a) bail (release) a defendant
unconditionally; (b) bail with non-financial conditions such as curfew or financial
conditions such as surety or security; or (c) remand a defendant in custody until the
next court hearing.2 This decision arises whenever a case is adjourned for trial,
sentence, or appeal. Thus, it is one of the most frequent legal decisions made. Most
bail decisions (and over 98% of all decisions in criminal cases) are made by lay
judges who are given legal training, but who are not necessarily legally qualified.
Importance of Bail Decision
The bail decision has serious ramifications. It can influence later decisions to convict
and sentence (Davies, 1971). Furthermore, compared to their bailed counterparts,
remanded defendants are more likely to lose their homes, jobs, and contact with
their families (Hammond, 1988). Remand prisoners place a financial burden on the
penal system (White, 1999), and pose a practical challenge in terms of finding
accommodation and regimes, which in turn may explain their increased likelihood
of committing suicide in prison compared to other prison populations (HM
1
The relationship between agreement and accuracy is less clear. Although agreement may be necessary for
accuracy, it is not sufficient. Judges can agree 100% and still be inaccurate. Similarly, agreement does not
imply fairness.
2
This is similar to the Canadian system. There is no monetary bail similar to that in other jurisdictions
such as America and Australia.
Copyright # 2004 John Wiley & Sons, Ltd.
Behav. Sci. Law 23: 367–386 (2005)
Disagreement in pretrial decisions
369
Inspectorate of Prisons, 1999). Attaching conditions to bail curtails a defendant’s
liberty and interferes with his/her daily life (Raine & Willson, 1994). On the other
hand, if more defendants were bailed, the public might be at increased risk of being
victimized by those who offend on bail (Brown, 1998).
Law on Bail
The Bail Act 1976 and its subsequent revisions offer guidelines for making bail
decisions.3 Section 4 of the Act provides a general right to bail for unconvicted and
convicted defendants awaiting a pre-sentence report. There are, however, several
statutory exceptions to this right. Part 1 of Schedule 1 to the 1976 Act sets out
grounds for denying bail to defendants accused or convicted of imprisonable
offences. For instance, it is stated that bail may be denied if the court is ‘‘satisfied
that there are substantial grounds for believing’’ that the defendant would fail to
surrender, offend, or interfere with witnesses/obstruct justice, if released on bail
(part 1, Schedule 1, paragraph 2 of the Bail Act 1976). In order to judge the risks of
absconding, offending or obstructing justice while on bail, part 1, Schedule 1,
paragraph 9 of the Act states
the court shall have regard to such of the following considerations as appear to it to be
relevant, . . .
(a) the nature and seriousness of the offence or default (and the probable method of
dealing with the defendant for it),
(b) the character, antecedents, associations and community ties of the defendant,
(c) the defendant’s record as respects the fulfillment of his obligations under previous
grants of bail in criminal proceedings,
(d) except in the case of a defendant whose case is adjourned for inquiries or a report,
the strength of the evidence of his having committed the offence or having
defaulted, as well as to any others which appear to be relevant.
The bail decision-making task described above is depicted in Figure 1. In sum,
the law affords judges considerable discretion when making their bail risk judgments
and subsequent bail decisions. Although the law states that the court should ‘‘have
regard to’’ specific information (hereafter called ‘‘specified legal’’ factors) it allows
the court to use ‘‘any others which appear to be relevant’’ (hereafter called
‘‘unspecified’’ factors, some of which may be considered ‘‘extra-legal,’’ e.g.,
defendant’s race, age, and gender). There is no guidance as to how factors should
be weighted, the direction in which they should be used, and how they should be
integrated to form a bail risk judgment. There is also no guidance as to how risk
judgments should be converted into decisions. Importantly, such discretion is not
structured by the training provided to judges (see, e.g., Judicial Studies Board,
1996; Miles & Thomson, 1992). Therefore, it is likely that different judges will
3
Revisions were made by sections 153–155 of the Criminal Justice Act 1988, Bail (Amendment) Act
1993, sections 25–30 and Schedule 3 to the Criminal Justice and Public Order Act 1994, sections 54–56
of the Crime and Disorder Act 1998, part 6 of the Criminal Justice and Police Act 2001, and section 58 of
the Criminal Justice and Courts Services Act 2000.
Copyright # 2004 John Wiley & Sons, Ltd.
Behav. Sci. Law 23: 367–386 (2005)
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M. K. Dhami
Figure 1. Model of bail decision-making in the English criminal justice system.
exercise their discretion differently. Hayes (1981) states that the bail decision
‘‘involves an intertwining of fact with opinion, and the whole reasoning process,
and linking together of the various strands of argument, is a highly subjective,
evaluative exercise’’ (p. 22).
Past Research on Bail in the English System
Judges’ bail decision-making processes have been studied by criminologists and
psychologists. Criminologists have mostly conducted observations of bail hearings
in the courtroom, analyses of court registers and criminal statistics, and questionnaire and interview surveys of judges (see, e.g., Hucklesby, 1996). Psychologists
have mostly employed experimental methods where judges are presented with
simulated cases (see, e.g., Dhami & Ayton, 2001).
Bail Risk Judgments
In the only published study of bail risk judgments, Morgan and Henderson (1998)
asked judges to identify the relevant information for judging risks in simulated cases.
Although more information was deemed necessary for judging the risk of offending
Copyright # 2004 John Wiley & Sons, Ltd.
Behav. Sci. Law 23: 367–386 (2005)
Disagreement in pretrial decisions
371
on bail, many of the same factors were viewed as necessary for judging different
types of risk. The relevant factors for judging the risk of absconding were likely
sentence if convicted, current offence and the harm inflicted, housing situation,
family ties, criminal record (related to likely sentence), bail record, employment
status, and substance abuse. These factors, plus the defendant’s community or
criminal ties, were also considered relevant for judging the risk of offending on bail.
The study, however, did not yield sufficient information regarding the factors
deemed relevant for judging the risk of obstructing justice.
Bail Decision-Making
Most research has examined the factors influencing judges’ decisions, thus
bypassing the risk judgment stage. To date, both criminological and psychological
research has found that judges’ decisions are influenced by a host of factors. Judges
use ‘‘legal’’ factors such as the nature and seriousness of the defendant’s offence,
the defendant’s previous convictions and past bail record, the strength of the
defendant’s community ties, and the prosecution request (see, e.g., Dhami, 2003;
Dhami & Ayton, 2001; Doherty & East, 1985; Hucklesby, 1996; Jones, 1985;
Morgan & Henderson, 1998). Judges also appear to use ‘‘extra-legal’’ factors
including the defendant’s age, gender, and race (see, e.g., Dhami & Ayton, 2001;
Doherty & East, 1985; Jones, 1985; Morgan & Henderson, 1998). Importantly,
Dhami and Ayton (2001) found that different judges use different factors, and that
judges’ self-reports of the factors they use do not correspond with those implied by
the models that predict their behavior. Typically, judges over-report the use of
socially desirable factors such as offence and under-report the use of factors such as
gender.
In addition, psychological research has examined the cognitive processes involved
in making a bail decision (Dhami, 2003; Dhami & Ayton, 2001). It has been found
that the decisions of both judges responding to simulated cases and judges
responding to real cases in the courtroom are better predicted by a simple heuristic
called the matching heuristic than by more complex strategies. According to the
heuristic, judges search through only a small subset of the available case information, and then base their decision on the level of one factor alone (ignoring all other
factors). Finally, most judges are inconsistent in their decision-making because they
make different decisions on identical cases (Dhami, 2002; Dhami & Ayton, 2001).
Nevertheless, all judges report being highly confident in their decisions.
Disagreement in Bail Decisions
As evidence of disagreement, criminologists have pointed to the disparities in bail
and custody rates among courts. Hucklesby (1996) contrasted a 9% custody rate in
two courts with a 25% rate in a third court. Others have reported wide variability in
the custody rates of courts in different geographical (Bottomley, 1970; King, 1971)
and police force (Jones, 1985) areas. Raine and Willson (1994) found variability in
the frequency with which conditional bail was granted across five courts (i.e. from
46.3 to 61.7%). However, the fact that these studies were based on decisions made
Copyright # 2004 John Wiley & Sons, Ltd.
Behav. Sci. Law 23: 367–386 (2005)
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M. K. Dhami
on real cases precludes a conclusive finding of judicial disagreement because the
cases were similar, but not the same.
Recent psychological research has employed a stronger test of judicial disagreement by presenting different judges with the same set of simulated cases and then
measuring disagreement from the modal decision. This approach has yielded
evidence of disagreement in the bail decisions made by individual judges sitting in
the same courts (Dhami, unpublished Ph.D. thesis) and sitting in different courts
(Dhami, 2002; Dhami & Ayton, 2001). In one study, judges disagreed with the
modal decision in on average half of the cases presented, and in another study judges
showed disagreement in on average a third of cases. Different cases elicited different
levels of disagreement. For instance, from 5 to 50% of judges disagreed with the
modal decision on a set of 27 cases. To date, no published study has measured the
extent of disagreement among judges’ bail risk judgments, or explained why some
cases elicit greater disagreement than others.
Researchers examining inter-personal conflict in the field of judgment and
decision-making have shown how disagreement in decisions may arise due to
systematic and non-systematic variability in cognitive processing (see Brehmer,
1976; Mumpower & Stewart, 1996). Here, systematic variability refers to how
individuals select, weight, and combine information to form a decision. Nonsystematic variability refers to how consistently individuals make decisions. Stewart
(1991) has hypothesized that judgments made at earlier stages of the decisionmaking process can account for differences in decisions made at the final stage.
There is some evidence to support this hypothesis. For example, Palys and Divorski
(1986) revealed that disparity in sentencing decisions on simulated cases among
Canadian provincial court judges could be attributed to differential subscription to
legal objectives and to the weight given to case factors. McFatter (1986) found that
disparity in US state district judges’ sentencing decisions on simulated cases
presented twice could be accounted for by unsystematic rather than systematic
variability. Thus, disagreement among English judges’ bail decisions may be
explained by variability in their earlier judgments of a defendant absconding,
offending, and obstructing justice while on bail, which in turn may be influenced
by case factors.
THE PRESENT STUDY
The present study examined how lay judges in the English system exercise their
discretion when making bail decisions (see Figure 1). The aims were to measure the
extent of judicial disagreement that emerged and explain such disagreement.
Specific objectives were to (a) examine the effect of specified and unspecified
‘‘legal’’ factors and ‘‘extra-legal’’ factors on bail risk judgments, (b) examine the
effect of risk judgments on bail decisions, (c) measure disagreement among judges’
risk judgments and their decisions, and (d) examine whether variability in risk
judgments explains disagreement among judges’ decisions. In addition, the study
(e) examined judges’ confidence in their decision-making. According to Zakay
(1997), post-decisional confidence can indicate decision-makers’ amenability to
interventions into their decision-making. This measure may be useful for policymakers who plan to change judicial behavior.
Copyright # 2004 John Wiley & Sons, Ltd.
Behav. Sci. Law 23: 367–386 (2005)
Disagreement in pretrial decisions
373
METHOD
Judges
Sixty-one lay judges from 47 randomly sampled adult courts (where defendants are
aged 18 and over) in England and Wales volunteered to participate in the present
study. Judges’ mean experience on the bench was 16.97 years (SD ¼ 7.41). Fortyseven judges sat in courts located in metropolitan areas and 13 sat in provincial courts.
Simulated Cases
Judges were presented with 27 simulated cases. The simulated case approach has
been recommended to unambiguously demonstrate disparity in judicial decisions
(see, e.g., McFatter, 1986; Palys & Divorski, 1986). To examine the potential role of
case factors in affecting bail risk judgments and subsequent judicial disagreement in
bail decisions, the cases were made up of eight factors (see the first column of
Table 1). These were selected on the basis of the above review of bail law and past
research. In addition, a victim factor was included as it might aid judgments of the
risk of defendants interfering with witnesses/obstructing justice.
A full factorial combination of the eight factors would yield an unmanageable
number of cases, thus a fractional factorial design was employed as in previous
research (e.g. Dhami & Ayton, 2001). The smallest subset of possible cases was
elicited whilst simultaneously retaining the orthogonality of the factors using the
‘‘orthogonal design’’ option in SPSS version 7.5 for Windows. This yielded a set of
27 cases and created a main-effect design. The levels of the factors were equally
distributed among the 27 cases for factors with three levels, and were distributed
according to approximate real world distributions for the other factors (see the
second column of Table 1). For example, there were an equal number of levels of
seriousness of offence, and there were more males than female defendants, respectively. The factors were placed in the order shown in Table 1. This reflects the order
in which most of the factors are commonly presented in the courtroom. The
properties of such simulated cases are representative of those appearing in English
courts, and their construct and face validity have been confirmed by seven judges
(Dhami, unpublished Ph.D. thesis).
Measurement of Responses
On each case, judges were first asked to make three bail risk judgments. They judged
the risk of a defendant (a) failing to surrender while on bail, (b) offending while on
bail, and (c) interfering with witnesses/obstructing justice while on bail, by marking a
cross anywhere along a scale anchored from 0 to 100%, with 10% intervals. Next,
judges were asked to make a decision on each case. They selected one of three
options: unconditional bail, conditional bail, or remand in custody. After each
decision was made on a case, judges were asked to indicate how certain they were
that they had made the appropriate decision based on the information provided,
using an 11-point scale, ranging from absolutely uncertain (0) to absolutely certain (10).
Copyright # 2004 John Wiley & Sons, Ltd.
Behav. Sci. Law 23: 367–386 (2005)
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M. K. Dhami
Table 1. Levels and distributions of case factors
Factors* and Levels**
Distribution
Gender
Male
Female
Race
White
Asian
Black
Age
18–20
21þ
Seriousness of offence
Summary
Triable either way
Indictable
Victim
None
Unknown
Known
Previous convictions and bail record
None–none
None–good
Yes, dissimilar–good
Yes, similar–good
Yes, dissimilar–poor
Yes, similar–poor
Strength of prosecution case
Strong
Weak
Strength of community ties
Strong
Weak
18
9
9
9
9
18
9
9
9
9
9
9
9
6
6
6
3
3
3
18
9
18
9
*In the English system, defendants aged under 21 who are remanded in custody
are sent to young offenders’ prisons, while those aged over 21 are sent to adult
prisons. Summary offences are mostly minor offences (e.g. driving after
consuming alcohol) that are dealt with in the magistrates’ court; indictable
offences are mostly serious offences (e.g. robbery) dealt with in crown court by a
jury, and triable either-way offences (e.g. inflicting grievous bodily harm) fall in
between. A poor bail record is one where the defendant has absconded, offended,
or obstructed justice while on bail in the past. The prosecution case against the
defendant is strong where details of witnesses and/or material evidence are
presented at the bail hearing. Finally, a defendant has weak community ties if he is
unemployed and does not have a fixed address or any family ties.
**Factors with more than two levels were dichotomized before analysis, so nonitalicized levels indicate the first level and italicized levels together indicate the
second level.
Procedure
The cases were placed in a booklet that contained information describing the tasks.
Background information was also provided to the cases. These ‘‘constant’’ factors
were the following: it is the defendant’s first appearance at court, he/she has been
arrested and charged by the police, pleaded not guilty, consented to trial, the length
of adjournment is 6 weeks, the defendant is legally represented, the defense has
made a bail application, and a surety is available. Judges were instructed not to
return to cases they had completed. Judges’ years of experience on the bench and
location of court were also requested. The booklets were mailed to court managers
Copyright # 2004 John Wiley & Sons, Ltd.
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Disagreement in pretrial decisions
375
who were asked to distribute them to judges sitting in their courts. A cover letter was
included for judges that introduced the study, guaranteed anonymity, and asked
them to return the completed cases directly to the researcher within 4 weeks using
the stamped, addressed envelope provided.
RESULTS
Bail risk judgments, bail decisions, and post-decisional confidence ratings were
averaged across cases for each judge, and the grand means across judges are reported
in Table 2. The results are presented in order of the objectives listed earlier.
Effect of Case Factors on Bail Risk Judgments
As noted earlier, past research has shown that judges’ bail decisions are influenced
by both legal and extra-legal factors, that judges rely on a small number of factors,
and that different judges use different factors. A similar pattern of findings was thus
predicted with regard to judges’ bail risk judgments. In order to examine the effect of
case factors on judges’ risk judgments, multiple linear regression analyses were
computed for each judge with risk of absconding, offending, and obstructing justice
while on bail as the dependent variables, respectively. The eight factors were entered
as predictor variables using the stepwise method (factors with more than two levels
were first dichotomized; see the note to Table 1).
A summary of the results of the regression analyses across judges is presented in
Table 3. Statistically significant models could be constructed for 52 (out of 61)
judges ( p < 0.05 for 52 judges and p > 0.05 for 9 judges).4 On average, 27% of the
Table 2. Mean risk judgments, decisions, and confidence across judges and cases
Bail risk judgments (%)
Absconding on bail
Offending on bail
Obstructing justice on bail
Number of decisions (out of 27)
Unconditional bail
Conditional bail
Remand in custody
Post-decisional confidence (on 0–10 scale)
Unconditional bail
Conditional bail
Remand in custody
M
SD
25.90
24.03
26.26
13.10
11.58
11.51
9.77
12.64
4.59
4.15
3.61
3.22
8.05
7.69
8.02
1.16
1.25
1.11
4
There are several possible explanations for the inability to model nine judges’ risk judgments. First,
judges may have used case factors in a non-linear way, although research in other fields has found little
evidence of non-linearity in judgment policies, and non-linearity usually accounts for a small proportion
of the variability in judgments (see Brehmer & Brehmer, 1988). Second, judges may not have used the
case factors at all, although it is unclear on what other basis they could have made their judgments.
Finally, judges may have used the factors inconsistently, and this seems plausible considering evidence
that judges (see, e.g., Dhami & Ayton, 2001; McFatter, 1986) and other decision-makers (see Brehmer &
Brehmer, 1988) are often inconsistent.
Copyright # 2004 John Wiley & Sons, Ltd.
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M. K. Dhami
Table 3. Summary of multiple linear regression analyses across judges predicting risk judgments from
case factors
Absconding
(N ¼ 35, mean
R2 ¼ 0.27, SD ¼ 0.13)
Case factors
Gender
Race
Age
Offence
Victim
Prev. convict.
and bail record
Prosecution case
Community ties
Judges (%)
(M, SD)
0.20 (0.29)
0.43 (0.00)
Offending on bail
(N ¼ 41, mean
R2 ¼ 0.23, SD ¼ 0.07)
Obstructing justice
(N ¼ 23, mean
R2 ¼ 0.21, SD ¼ 0.06)
Judges (%)
(M, SD)
1.28 (1.23)
0.42 (0.05)
0.39 (0.00)
0.41 (0.00)
0.39 (0.00)
4.35
0.00
0.00
60.87
21.74
0.47 (0.07)
21.74
0.00
4.35
11.43
2.86
0.00
20.00
2.86
0.39 (0.03)
0.36 (0.00)
4.88
4.88
2.44
2.44
2.44
48.57
2.86
60.00
0.44 (0.03)
0.31 (0.00)
0.44 (0.08)
85.37
0.00
7.32
1.60 (0.93)
Judges (%)
(M, SD)
0.40 (0.00)
0.93 (0.99)
0.42 (0.02)
0.34 (0.17)
0.39 (0.00)
The percentage of judges for whom a case factor was a significant predictor in their models will not sum to
100% because some judges’ models contained more than one case factor.
variability in judgments of absconding, 23% of the variability in judgments
of offending on bail, and 21% of the variability in judgments of obstructing
justice could be predicted by case factors, respectively. The factors used by judges
to make their risk judgments differed for each type of risk, and also varied
across judges.
When predicting risk of absconding, the models included only one case factor for
66% of judges, two case factors for 23% of judges, three case factors for 9% of
judges, and four case factors for one judge. The most commonly used factors were
strength of community ties, previous convictions and bail record, and seriousness of
offence. Specifically, defendants with weak community ties, defendants with previous convictions and a poor bail record, defendants charged with a serious offence,
male defendants, ethnic minority defendants, defendants charged with crimes
involving a visible victim, and defendants facing a strong prosecution case were all
judged to pose a greater risk of absconding on bail.
When predicting risk of offending on bail, the models included only one case
factor for 90% of judges and two case factors for the remaining judges. The most
commonly used factor was previous convictions and bail record. Defendants with
previous convictions and a poor bail record, defendants with weak community ties,
male defendants, ethnic minority defendants, younger defendants, defendants
charged with a serious offence, and defendants with a visible victim were all judged
to pose a greater risk of offending on bail.
Finally, risk of obstructing justice was predicted by one case factor for 87% of
judges and by two case factors for the remaining judges. The most commonly used
factors were seriousness of offence, victim, and previous convictions and bail record.
Defendants charged with a serious offence, defendants with a visible victim,
defendants with previous convictions and a poor bail record, male defendants,
and defendants with weak community ties were all judged to pose a greater risk of
obstructing justice on bail.
Copyright # 2004 John Wiley & Sons, Ltd.
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Disagreement in pretrial decisions
377
Effect of Bail Risk Judgments on Bail Decisions
According to the Bail Act 1976, bail can be denied based on any one of the judgments
of the risk of absconding, offending, or obstructing justice reaching a high level rather
than an integration of all three risk judgments. Furthermore, before bail is denied
judges should consider whether any conditions could be attached to bail that may reduce the risk. Therefore, it was predicted that high risk judgments would lead to more
punitive decisions (i.e. conditional bail or remand in custody), and that bail decisions
would be influenced by one risk judgment rather than an integration of all three.
In order to examine the effect of bail risk judgments on bail decisions, the
decision was first dichotomized into unconditional bail versus conditional bail and
remand in custody. This reflects the idea that, unlike unconditional bail, conditional
bail and remand in custody are both punitive options. One judge was excluded from
the analyses because the decision was constant across the 27 cases (i.e. only made
punitive decisions). Separate logistic regression analyses were then computed for
judges that predicted their decisions from their three risk judgments, which were
entered using a stepwise method. A statistically significant model was constructed
for 46 (out of 60) judges ( p < 0.05 for 46 judges and p > 0.05 for 10 judges).5
Across these judges, the models containing judges’ risk judgments predicted
on average 80.62% (SD ¼ 9.50) of their decisions correctly. The models of 74%
of judges contained only one risk judgment, and two risk judgments in the remaining
judges’ models. For judgment of absconding mean ¼ 0.67 (SD ¼ 1.51, n ¼ 25), for
judgment of offending on bail mean ¼ 0.69 (SD ¼ 1.04, n ¼ 5), and for judgment
of obstructing justice mean ¼ 0.65 (SD ¼ 1.14, n ¼ 29). Thus, higher judgments of
risk were predictive of punitive decisions.
Judicial Disagreement
Based on past research on bail in the English system, it was predicted that there
would be evidence of judicial disagreement in risk judgments as well as decisions.
Some researchers studying judicial disagreement in the American system have
reported that the extent of disagreement varies from case to case (e.g. McFatter,
1986; Palys & Divorski, 1986). Thus, it was predicted that the extent of judicial
disagreement in bail risk judgments and bail decisions would vary across cases.
Bail Risk Judgments
Figure 2(a)–(c) illustrates the mean risk judgments of absconding, offending, and
obstructing justice while on bail, across judges on each case, respectively. The
standard error represents the measure of variability among judges’ risk judgments.
As can be seen, the extent of variability (disagreement) differed across cases.
Specifically, there was less variability among judges on those cases where the
mean risk posed by the defendant was judged as relatively low—there were
moderate positive correlations between the mean and standard error for risk of
5
The inability to reliably predict 14 judges’ bail decisions using their bail risk judgments may be explained
in terms of these judges’ inconsistency. There is evidence suggesting that English judges are inconsistent
in their bail decision-making (see, e.g., Dhami & Ayton, 2001).
Copyright # 2004 John Wiley & Sons, Ltd.
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M. K. Dhami
absconding, offending, and obstructing justice (r ¼ 0.69, r ¼ 0.72, r ¼ 0.64, respectively, all p ¼ 0.001).
Bail Decisions
In order to measure disagreement in bail decisions, the modal decision made on
each case was calculated. Then, whether or not each judge agreed with the mode on
each case was recorded. The percentage of judges disagreeing with the modal
Figure 2. (a) Mean risk judgment and standard error of absconding on bail across judges per case. (b)
Mean risk judgment and standard error of offending on bail across judges per case. (c) Mean risk
judgment and standard error of obstructing justice on bail across judges per case.
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Disagreement in pretrial decisions
379
Figure 2. Continued.
decision on each case is presented in Table 4. As can be seen, some cases yielded
greater disagreement than others. There was a significant positive Kendall tau-b
correlation of 0.35 between the percentage of judges disagreeing with the mode and
the type of modal decision ( p ¼ 0.046; the case with multiple modes was excluded).
Thus, cases that resulted in a more punitive decision elicited greater disagreement.
Explaining Disagreement
Disagreement in Decisions as a Function of Risk Judgments
As noted, some cases elicited greater disagreement from the modal decision among
judges than did other cases. According to Stewart (1991), judgments made at earlier
Table 4. Percentage of judges disagreeing with modal decision and 95% confidence interval in each case
Case number
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Judges (%)
39.3
16.4
18.0
26.2
14.8
8.2
54.1
45.9
34.4
11.5
59.0
45.9
24.6
24.6
95% CI
Case number
12.26
9.29
9.64
11.03
8.91
6.89
12.51
12.51
11.92
8.01
12.34
12.51
10.81
10.81
15
16
17
18
19
20
21
22
23
24
25
26
27
Judges (%)
31.1
29.5
13.1
11.5
29.5
13.1
24.6
41.0
57.4
14.8
19.7
19.7
47.5
95% CI
11.62
11.44
8.47
8.01
11.44
8.47
10.81
12.34
12.41
8.91
9.98
9.98
12.53
The modal decision was unconditional bail in eight cases, conditional bail in 16 cases, and remand in
custody in two cases. Multiple modes existed for case 21 (i.e. unconditional bail and conditional bail).
Copyright # 2004 John Wiley & Sons, Ltd.
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M. K. Dhami
stages of the decision-making process can explain disagreement in final decisions.
Therefore, it was predicted that variability in risk judgments across cases would
account for variability in judicial disagreement in decisions across cases.
A multiple linear regression analysis was computed to predict the percentage of
judges disagreeing from the modal decision. The variability (standard error) of risk
judgments of absconding, offending, and obstructing justice while on bail were
entered as predictors using the stepwise method. The model was statistically
significant (F[1, 26] ¼ 20.70, p ¼ 0.001), and predicted 45% of the variability in
the percentage of judges disagreeing with the modal decision across cases using only
the variability in judgments of absconding ( ¼ 0.67, t ¼ 4.55, p ¼ 0.001). Greater
variability in these risk judgments were predictive of a greater percentage of judges
disagreeing with the modal decision.
Variability in Risk Judgments as a Function of Case Factors
Can the variability in judgments of absconding be predicted by case factors? A
hierarchical multiple linear regression analysis was computed to predict variability in
judgments of absconding from the eight case factors which were entered in the order
shown in Table 1. The model at step three was significant (F[3, 26] ¼ 10.36,
p ¼ 0.001, R2 ¼ 0.52; also with a significant increase in R2) and contained three
predictors. These predictors were strength of defendant’s community ties ( ¼ 0.52,
t ¼ 3.81, p ¼ 0.001), seriousness of offence ( ¼ 0.40, t ¼ 2.92, p ¼ 0.008), and
defendant’s previous convictions and bail record ( ¼ 0.39, t ¼ 2.84, p ¼ 0.009).
Thus, 52% of the variability in the standard error of judgments of absconding could
be explained by these three factors. Cases in which defendants had weak community
ties, were charged with a serious offence, and had previous convictions and a poor
bail record were predictive of greater variability in judgments of absconding.
DISCUSSION
The present study represents the first systematic investigation into how judges make
bail risk judgments, how risk judgments affect bail decisions, and how judicial
disagreement in decisions can be explained by variability in risk judgments. I shall
review the present findings in relation to past literature before discussing their
generalizability and implications.
Bail Decision-Making Process
As the model of bail-decision making in Figure 1 shows, judges’ bail decisions on
cases in which defendants are accused or convicted of imprisonable offences are
informed by their bail risk judgments, which in turn are based on case factors. The
law on bail affords judges considerable discretion as to how they should make their
risk judgments and subsequent decisions. It was clear in the present study that
different judges exercised their discretion differently.
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381
Bail Risk Judgments
Morgan and Henderson (1998) reported that judges considered eight or nine factors
when judging the risk of offending and absconding on bail, and that the same case
factors were deemed relevant for judging both types of risk. The present study,
however, demonstrated that a considerable proportion of the variability in judges’
risk judgments could be accounted for by only one or two factors. This corresponds
to research showing that judges’ bail decisions are well predicted by simple decisionmaking strategies that use only one case factor (Dhami, 2003; Dhami & Ayton,
2001).
The present study also demonstrated that different factors were used to judge
different types of risk. This is consistent with past theorizing on the importance of
case factors in judging bail risks (Home Office, 1974; King, 1971; Simon &
Weatheritt, 1974). Overall, the majority of judges’ risk judgments were predicted
by legal factors (i.e. those specified and unspecified in the Bail Act 1976), and only a
minority of judges relied on extra-legal factors. Importantly, different judges used
different factors when judging the same type of risk.
Although the present study did not ask about judges’ reasons for using specific
factors, all factors were used in a manner consistent with past theorizing and
research. For instance, judges in the study by Morgan and Henderson (1998)
reasoned that defendants with previous convictions might continue to offend if
released on bail and might abscond as they would receive a harsh penalty if
convicted. Correspondingly, judges in the present study perceived defendants
with previous convictions as posing a greater risk of absconding and offending
compared with defendants without previous convictions.
Bail Decisions
The proportion of cases bailed versus remanded in custody by judges in the present
study reflected the distribution of decisions made in the English criminal justice
system (Home Office, 2001). Judges’ bail risk judgments were predictive of their
subsequent bail decisions, and for the majority of judges the decision was driven by
only one of the three risk judgments. The idea that judges are not integrating their
judgments of the three types of risk is compatible with the procedure suggested by
the law on bail. Few judges’ decisions were influenced by the risk of offending on
bail, which suggests that judges may not be sufficiently emphasizing society’s right to
be protected against defendants who may offend on bail.
Finally, judges were highly certain they had made the appropriate decision based
upon the information provided. Such high levels of post-decisional confidence are
consistent with that reported previously (Dhami, 2002; Dhami & Ayton, 2001), and
may reflect the confidence that others place in judges’ decision-making abilities.
Judicial Disagreement
In the present study, judges presented with identical cases varied in their risk
judgments and decisions. This represents the first empirical demonstration of
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M. K. Dhami
disagreement among judges’ bail risk judgments. Greater disagreement was observed on cases that were judged to pose a greater risk of absconding, offending, or
obstructing justice while on bail. The extent of disagreement among judges’
decisions is similar to that reported earlier (Dhami, 2002; Dhami & Ayton,
2001). From 8 to 59% of judges in the present study disagreed with the modal
decision across cases, and greater disagreement was observed when the modal
decision was more punitive. Similarly, Dhami (2004) found that, on average, more
judges tended to disagree with the modal decision if it was conditional than
unconditional bail.
The extent of judicial disagreement in decisions across cases in the present study
could be reliably explained by variability in judges’ risk judgments on these cases. In
turn, the variability in risk judgments was predicted by three case factors: strength of
defendant’s community ties, seriousness of the offence the defendant was charged
with, and defendant’s previous convictions and bail record.
Generalizability
Although there are differences in bail laws across jurisdictions, the English bail
system shares several important features with the bail systems of other jurisdictions
such as Canada, America, and Australia (for Canada see Trotter, 1999; for America
see Clark & Henry, 1996, and Federal Judicial Center, 1993; and for Australia see
Devine, 1989). The guidelines contained in the Bail Act 1976 that were studied in
the present paper are comparable to the bail legislation in America, Canada, and
Australia.6 In the federal jurisdictions of these countries, as well as many of the state
or provincial jurisdictions, there is some form of right to liberty pretrial, and the
primary goal of the decision is to assure that a defendant returns to court for the next
hearing of the case. Other important goals include that a defendant does not
threaten community safety (e.g. offend or interfere with witnesses) while released
on bail. Furthermore, in most jurisdictions, the law requires judges to consider a
similar list of factors (e.g. defendant’s community ties and criminal history) when
judging the risk of absconding or offending on bail. Moreover, as with the English
bail law, many of the factors listed in the bail legislation of other jurisdictions are
vague, and there is no guidance as to how the factors should be used.
In fact, research into the bail decision-making practices in other jurisdictions has
revealed findings similar to research on bail in the English system. Much of the
published work has focused on the American system, and this demonstrates the
influence of legal and extra-legal factors in the decision to release on recognizance
and the amount of money bail (e.g. Albonetti, 1989; Frazier, Bock, & Henretta,
1980; Goldkamp, Gottfredson, Jones, & Weiland, 1995, chapter 7; Katz & Spohn,
1995; Petee, 1994). There is also evidence of wide disparities in pretrial release
decisions across states in America and in the Federal system where the same
law prevails in all Federal districts (see Clark & Henry, 1996). Goldkamp and
6
In America, see the Federal Bail Reform Act 1966 and its amendment in 1984. No federal bail procedure
exists in Australia separate from that of the states, thus for representative examples see Bail Act 1978 of
New South Wales, Bail Act 1977 of Victoria, Bail Act 1985 of South Australia, and Justices Act 1974 of
Tasmania. In Canada, see Bail Reform Act 1970–71–72.
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Gottfredson (1985) reported that judges disagreed in their bail decisions in a
Philadelphia court.
Therefore, although there are also differences in the bail system across jurisdictions, the similarities regarding the goals of bail decision-making, and the vague nature
of bail legislation that affords decision-makers discretion, suggest that the findings of
the present study on judicial disagreement in the English bail system may be useful to
those studying disparities in pretrial decision-making in other jurisdictions.
Implications for Reducing Judicial Disagreement
As a measurement of performance, judicial disagreement may fuel concerns over the
equitable treatment of cases with similar legal characteristics, and the accuracy of
some judges’ decisions. For instance, it is a reasonable requirement that a defendant
be treated similarly by two different judges, and it is apparent that if two judges make
different decisions on the same case, one must be erroneous (when the decision
option is binary; see also footnote 1). Furthermore, the fact that the bail decision has
serious implications for defendants, their families, the penal system, and the general
public emphasizes the need to improve judicial performance at this task. The fact
that the pretrial decision can influence later decisions suggests that reducing judicial
disagreement at the pretrial stage may help to reduce disparities observed at later
stages of the justice system.
There are two main implications for reducing judicial disagreement that emerge
from the findings of the present study. First, judges could be trained to deal with the
types of case that elicit greater disagreement. The present study revealed that these
are cases where defendants have weak community ties, are charged with serious
offences, or have previous convictions and poor bail records.
Second, the discretion afforded to judges by the law on bail could be reduced by
the development and implementation of well defined and structured guidelines.
There have been calls for a reduction in judicial discretion in pretrial (e.g.
Goldkamp, 1993), conviction (e.g. Kagehiro, 1990), sentencing (e.g. Nash,
1992), and parole decisions (e.g. Carroll, Wiener, Coates, Galegher, & Alibrio,
1982) (see also Gottfredson & Gottfredson, 1988). Guidelines can also increase the
accountability and transparency of pretrial decisions (see, e.g., Galligan, 1987;
Goldkamp & Gottfredson, 1985; Goldkamp et al., 1995; Stanfiel, 1983).
Guidelines for bail decision-making could more precisely specify the factors
judges should use when making their bail risk judgments, how each factor should be
weighted, and how risk judgments should inform bail decisions. Development of
such guidelines should be informed by research aimed at determining the factors
that predict different bail risks. Although there are difficulties in predicting outcomes (see Gottfredson, 1987), some headway has been made on this issue in the
American system (see, e.g., Clarke, Freeman, & Koch, 1976; Goldkamp &
Gottfredson, 1985; Goldkamp et al., 1995, chapter 10; Nagel, 1983; Nussbaum,
Lang, Chan, & Riviere, 1994; Visher & Linster, 1990), the Australian system (see,
e.g., Weatherburn, Quinn, & Rich, 1987), and English systems (see, e.g., Brown,
1998; Morgan & Henderson, 1998). For instance, Goldkamp et al. (1995) reported
that factors such as the nature of the offence, defendant’s community ties, previous
convictions, and past bail record were all predictive of defendants absconding and
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M. K. Dhami
offending on bail. However, further research is needed before these findings are
considered conclusive.
Guidelines appear to be effective. For instance, there is evidence that ethnic and
gender biases in sentencing (see, e.g., Meeker, Jesilow, & Aranda, 1992) and the
disparities in sentence length (see, e.g., Anderson, Kling, & Stith, 1999) are reduced
when judges’ discretion is limited by guidelines. Thus, guidelines at the pretrial
stage could also reduce judicial disagreement, and might help improve the equity,
effectiveness, and transparency of judges’ decisions (see Goldkamp & Gottfredson,
1985; Goldkamp et al., 1995, chapter 15). However, the development and implementation of guidelines has many theoretical and practical hurdles, and researchers and policy-makers should beware that judges may be reluctant to change their
behavior, or use guidelines (see Goldkamp et al., 1995, chapters 16–17).
Methodological Issue: Simulated Case Approach
The present study used simulated cases to examine judicial disagreement. While
studies based on real cases have external validity, they suffer from limitations that
threaten their internal validity. For example, there may be inter-correlations among
case factors, so the effect of one factor such as race on decisions cannot be discerned
independently of the effect of another factor such as offence. The amount and type
of information available to judges may vary, and so we can only speculate about the
factors judges attend to when making their decisions. Finally, studies based on selfreports of decisions made on real cases may be susceptible to social desirability
response bias. By contrast, experimental research using simulated cases can overcome these limitations by controlling for the inter-correlations among case factors
and the amount and type of information available to judges, and then inferring the
factors that influence judges’ decisions from their decision-making behavior rather
than from self-reports. Furthermore, the simulated case approach enables precise
measurement of intra-judge consistency in decision-making by presenting a judge
the same cases on two separate occasions, and enables study of inter-judge
agreement by presenting different judges with identical cases.
The simulated case approach is thus recommended in the study of judicial
disagreement (see, e.g., McFatter, 1986; Palys & Divorski, 1986). In the present
study, care was taken to ensure that the factors that may be used to judge bail risks
were included in the simulated cases. The validity of using simulated cases to study
disagreement has been documented periodically. For instance, Diamond and Zeisel
(1975) found that the disparity in sentencing decisions observed on simulated cases
was similar to that observed on real cases. Finally, as McFatter (1986) points out, ‘‘it
may be reasonable to suppose that the effect (if any) of using simulated cases would
be to decrease the likelihood of disagreements over sentences’’ (p. 161). Thus, the
simulated case approach represents a conservative measure of judicial disagreement.
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