From discretion to disagreement: explaining disparities in judges' pretrial decisions


  • I thank Peter Ayton, David Mandel, and Richard Wiener for their comments on an early draft of the manuscript.


Judges are afforded considerable discretion in decision-making. 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.