Tired Judges? An Examination of the Effect of Decision Fatigue in Bail Proceedings

• Author: Luis C. Torres,Joshua H. Williams
• DOI: http://doi.org/10.1177/00938548221081072
• Published date: 01 August 2022
• Date: 01 August 2022
• Subject Matter: Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2022, Vol. 49, No. 8, August 2022, 1233 –1251.

DOI: https://doi.org/10.1177/00938548221081072

Article reuse guidelines: sagepub.com/journals-permissions

© 2022 International Association for Correctional and Forensic Psychology

1233

TIRED JUDGES?

An Examination of the Effect of Decision Fatigue in

Bail Proceedings

LUIS C. TORRES

University of Missouri–St. Louis

JOSHUA H. WILLIAMS

University of North Carolina Wilmington

The current study begins to answer the recent call for scholars to reinvigorate the use of observational data to understand

courtroom decisions. Drawing on the psychological effects of decision fatigue, the current study examines 284 bail hearing

cases from two New Jersey jurisdictions to explore the role of decision fatigue on judges’ engagement, judicial deviations from

prosecutors’ recommendations, and set bail amounts. The results suggest that judicial fatigue, measured as case order and ses-

sion duration, limited the engagement for one judge, affected set bail amounts for both judges, and that proceeding modality

may play some role in fatigue and engagement. Findings also suggest that observational data can work in tandem with admin-

istrative data to give better insight into the court process and decisions. Limitations and future research are discussed.

Keywords: decision fatigue; judicial decision-making; judicial engagement; bail decisions

INTRODUCTION

Psychological literatures suggest that repeated acts of decision-making contribute to

depleted quantities of available mental energy, or decision fatigue, which then affects sub-

sequent decisions (Baumeister et al., 1998; Baumeister & Tierney, 2012; Muraven et al.,

1998). For many outside of the psychology discipline, however, the phenomenon itself and

its effects on decision-making sparked interest as a result of the dramatic findings of one

Israeli study by Danziger and colleagues (2011a) examining judicial parole decisions,

which finds that judges become increasingly punitive when having to make multitudes of

legal decisions in subsequent order, an effect consequently referred to as the “irrational

hungry judge effect” (Glöckner, 2016, p. 602).1 Following Danziger et al.’s (2011a) study

AUTHORS’ NOTE: We would like to thank Andres F. Rengifo, Lee A. Slocum, Beth B. Huebner, Marisa

Omori, and Kristina Thompson for their assistance in the completion of this manuscript. Correspondence con-

cerning this article should be addressed to Luis C. Torres, Department of Criminology and Criminal Justice,

University of Missouri–St. Louis, 1 University Boulevard, St. Louis, MO 63121; e-mail: lctmxr@umsystem.edu.

1081072CJBXXX10.1177/00938548221081072Criminal Justice and BehaviorTorres, Williams / TIRED JUDGES?

research-article2022

1234 CRIMINAL JUSTICE AND BEHAVIOR

and subsequent critiques, no other study has reexamined the effects of decision fatigue on

judicial decisions. In addition, no research has explored how, aside from the case decisions

themselves, decision fatigue influences other actions and behaviors displayed by judges

during case proceedings and before making case decisions.

Within the court literature specifically, researchers have yet to cultivate a more nuanced

understanding of the decisions stemming from judicial processes and, perhaps even more

so, the court process itself (Jones, 2013). Ethnographic and observational studies have

explored the decision-making process within courts from a theory-building approach (see

Clair, 2020; Feeley, 1979; Kohler-Hausmann, 2018; Van Cleve, 2016). However, influential

theories (e.g., focal concerns) are often loosely and/or inaccurately tested by empirical stud-

ies that oversimplify the propositions set forth by those theories (Albonetti, 1991;

Steffensmeier et al., 1998; Ulmer, 2019). For instance, most empirical research examining

court decisions primarily utilizes large administrative datasets and adopts similar method-

ologies (Baumer, 2013; Ulmer, 2019). Specifically, and while using regression analysis,

these studies typically employ factors readily available in the data—for example, legal

(e.g., types of charges and the total number of charges) and nonlegal (e.g., age, race/ethnic-

ity, and gender of defendants) relevant factors—to predict their effects on case decisions

(e.g., bail amount & sentence length) and generally yield mixed results (Albonetti, 1991;

Baumer, 2013; Steffensmeier et al., 1998; Ulmer, 2012).

Such inquiries, although informative in the way of identifying single or groups of factors

that influence case decisions, largely ignore and “dehumaniz[e] complex social systems” by

devoting minimal attention to surrounding factors, such as courtroom occurrences preced-

ing case decisions, decision-makers, time of hearing throughout a judge’s caseload, mode

of proceedings (in-person and video conference), and their individual and effects on case

decisions (Lynch, 2019, p. 1165; Ulmer, 2019). As described by Ulmer (2019), courts may

be viewed and examined through an “inhabited” institutional lens, or as organizations in

which case decisions are products of a complicated interplay between court actors with

agency, and who hold specialized roles and wield unequal amounts of power. And as a

result, the decisions of individual court actors and those reached by the collective group are

susceptible to forces beyond what is routinely available in administrative datasets. As a

result of these data limitations, we argue that court decision-making research has been lim-

ited to superficial inquiries that obstruct the advancement of knowledge. Moreover, due to

the secondary and aggregated nature of the data employed by most studies, research fails to

provide the contextual details necessary to, at a minimum, allow for inferences regarding

the potential causes of the disparities in decisions identified across studies. The exploration

of these often-overlooked contextual factors may not only provide insight as to the causes

of existing disparities identified by studies but may also lead the way to other unexplored

avenues of research and to the collection of data that more accurately capture and reflect the

complex inhabited nature of criminal courts. All in all, current practices help identify what

factors, of those available, guide decision-making, but not how or why they matter.

Using observational data collected prebail reform in two bail hearing courts in the State

of New Jersey and building on the Danziger et al. (2011a) study, the current study examines

the importance of case order and session durations (a proxy for judicial fatigue) on judges’

displayed levels of engagement with defendants throughout proceedings, judges’ decision

to deviate from prosecutors’ recommended bail amount, and set bail amounts, through the

psychological lens of the decision fatigue phenomenon (Baumeister et al., 1998; Baumeister

& Tierney, 2012; Muraven et al., 1998).2 This current research contributes to numerous