Craft skills and algorithms: Understanding bail decision-making

Tragic events in Australia such as the Lindt Café siege and the Bourke Street rampage have led to calls to strengthen bail laws. A different approach is being pursued in some US courts that seek to augment judicial decision-making with risk analysis. These initiatives have only had a limited effect in changing criminal courts in Australia, partly because traditional craft skills still have legitimacy. They are perceived, at least among practitioners, as generally resulting in fair outcomes. What is missing from these policy debates has been a close analysis by social scientists of how bail decisions are currently made. Drawing on ethnographic research being conducted in magistrates courts in four Australian states, this paper describes some aspects of judicial decision-making: how judicial officers weigh up factors in applying the law; different approaches among decision-makers; the craft skills involved in ensuring “fair” remands for defendants who re-offend while on bail; and the effect on decision-making of legislation, resources and political pressures. It is suggested that algorithms cannot possibly match the craft skills in making these situated decisions. Nevertheless, if introduced appropriately, such tools may perhaps achieve greater consistency among decision-makers, and confidence in criminal courts.