The formula for creating a new crime or increasing punishments ("enhancements," to use the Orwellian capitol euphemism), is dead simple: Argue that this or that social problem has reached epidemic proportions, then suggest a more punitive response than under present law.
While typically admitting that increased criminal penalties won't solve the problem (e.g., after "enhancing" penalties for scrap metal theft to a felony, the number of thefts significantly increased), proponents inevitably insist that a new law must be passed in order to "send a message."
But recent social science research makes me wonder exactly what message this strategy actually sends? Social psychologist Robert Cialdini argues that such arguments often have the opposite effect of what's intended, because of the implicit message it sends, because even if such claims are:
both true and well intentioned, the campaigns’ creators have missed something critically important: Within the statement “Many people are doing this undesirable thing” lurks the powerful and undercutting normative message “Many people are doing this.” Only by aligning descriptive norms (what people typically do) with injunctive norms (what people typically approve or disapprove) can one optimize the power of normative appeals. Communicators who fail to recognize the distinction between these two types of norms imperil their persuasive efforts.In an NPR interview last year, Cialdini described an experiment in Arizona's Petrified Forest, which was experiencing a problem with visitors to the park stealing pieces of the petrified trees. They tested the effectiveness of two signs. The first declared, “Many past visitors have removed petrified wood from the Park, changing the natural state of the Petrified Forest,” and was accompanied by pictures of three visitors taking wood. Alternatively along other trails they placed signs that read, “Please don’t remove the petrified wood from the Park, in order to preserve the natural state of the Petrified Forest.”
The result: The message implying many people stole resulted in more people stealing pieces of marked wood (a theft rate of 7.92% vs. 1.67%). That's a 374% difference! I can't think of a single penalty enhancement EVER passed by the Texas Legislature that reduced the targeted offense by that amount.
So let's translate this observation to the realm of criminal laws. E.g., graffiti is rampant so we must arrest more people and increase criminal penalties. By Cialdini's reasoning, such messages may actually promote graffiti instead of reducing it. Ditto for drug use, stealing scrap metal, or talking on the cell phone while driving. The messages used to build political support for higher punishments may actually increase the behaviors they want to prevent.
I've certainly been guilty of this. E.g., this blog has focused significantly on highlighting public corruption among Texas law enforcement. But what if that message - "corruption is widespread" - actually encourages more corruption instead of reduces it? It's a fascinating and complex question.
Similar experimental psych research appears to justify at least some version of the so-called "broken windows" theory, which holds that disorderly social environments themselves can boost crime. Dutch researchers tried an experiment in which they:
left an envelope hanging out of a postbox; the stamped and addressed envelope had a window through which could clearly be seen a five-euro note. How would passers-by, or those posting a letter, react when they saw it? The vast majority (87 per cent) either left it alone, or pushed it into the postbox. Only 13 per cent took it away (this was regarded as stealing).
But roughing up the environment had a dramatic effect. When the postbox was tagged with graffiti, 27 per cent of people stole the letter. When the postbox was surrounded by rubbish (but not graffitied), 25 per cent pocketed the cash.
So reducing the amount of rubbish and graffiti (i.e, cleanup) actually reduced resultant crime. But there's a hitch: Sending the message that lots of people are littering or doing graffiti also promotes more litter and graffiti. In that light, rapid cleanup reduces crime, while decrying graffiti or litter as a big problem requiring drastic solutions probably increases both unwanted behaviors and resultant negative consequences.
A lot of this research is quite recent, and the implications for crime and punishment messages haven't been fully explored. But it seems likely that the tactics commonly used to promote harsh punishments may promote the behaviors they hope to prevent.