Criminal justice system needs nudge toward nudging

We live in the age of the "nudge." But the criminal justice system has been slow to adopt cutting edge strategies being widely touted in the business community to influence human behavior.

As such, Grits enjoyed this article on incentives vs. punishments (mostly aimed at workplace behaviors, not criminality), and in particular liked this summary of the problems with punishment. The author isn't talking about the justice system, but the applications remain relevant:

There are several reasons that punishment might not be the best way to alter someone’s behavior. 

First of all, [B.F.] Skinner observed that the power of punishment to suppress behavior usually disappears when the threat of punishment is removed. Indeed, we all refrain from using social networks during work hours, when we know our boss is around, and we similarly adhere to the speed limit when we know we are being watched by a police patrol. 

Second, punishment often triggers a fight-or-flight response and renders us aggressive. When punished, we seek to flee from further punishment, and when the escape is blocked, we may become aggressive. This punishment-aggression link may also explain why abusing parents come from abusing families themselves. 

Third, punishment inhibits the ability to learn new and better responses. Punishment leads to a variety of responses — such as escape, aggression, and learned helplessness — none of which aid in the subject’s learning process. Punishment also fails to show subjects what exactly they must do and instead focuses on what not to do. This is why environments that forgive failure are so important in the learning process. 

Finally, punishment is often applied unequally. We are ruled by bias in our assessment of who deserves to be punished. We scold boys more often than girls, physically punish grade-schoolers more often than adults, and control members of racial minorities more often (and more harshly) than whites.

The justice system relies nearly entirely on punishment as motivation for good behavior, while cops, prosecutors and judges spend little time considering incentives for doing right beyond, "if you do, we'll eventually stop harming you." But there is clearly room for more incentive-based approaches:

In August's Reasonably Suspicious podcast, we discussed potential changes to incentives affecting government actors to help reduce mass incarceration: In that case, the incentives in need of adjustment were the economics of who pays to incarcerate vs. the politics of who makes the decision to incarcerate. For local decision makers, sending someone to prison is "free" and makes them someone else's problem, while keeping them on supervision in the community requires local actors to manage them. So we talked about a "cap and trade" system that would put limits on how much incarceration each jurisdiction could use and cause over-incarcerating outlier jurisdictions to purchase "extra" bed years from those incarcerating at lower rates.

But the discussion of incentives also reaches to the level of the individual offender. The much-vaunted HOPE probation program, first piloted in Hawaii, changed incentives by more closely monitoring probationers and punishing violations with more speed and certainty, but at lower levels. Such strong probation typically lasts for shorter periods and offenders can earn their way off supervision through good behavior.

Incentives extend to the actions of police officers. For example, Texas judges found that a juries in Houston for several years frequently acquitted DWI defendants because a Houston police officer on their DWI task force made numerous questionable arrests based on incentives in their union contract that paid him extra for overtime spent testifying in court. The problem became so acute the officer had to be reassigned. (Judges on an intermediate court of appeals said lawyers who didn't raise the issue were ineffective, but the Court of Criminal Appeals ultimately disagreed, taking the attorney's word for it that his deficiencies stemmed from strategy, not lameness.)

There are dozens more such small incentives embedded throughout the system that distort the process in big ways. For example, indigent defendants who can't make bail face strong incentives to cut a plea deal to get out of jail, especially when they're charged with a misdemeanor or low-level felonies and could get out with time served by pleading out. That incentive is so strong it has driven actually innocent defendants to plead guilty by the hundreds when they were falsely accused of drug possession by faulty field tests used by Houston PD.

Grits could go on and on. At every level, nearly every actor in the system faces skewed incentives that in important ways thwart best outcomes. In an era when we've reached the limits of the public's willingness to pay for more punishment in the form of mass incarceration, lavish pay and benefits for law enforcement, etc., the idea of using incentives and nudges to achieve some of the same goals  makes tons of sense.

Readers,  please leave examples in the comments of other counterproductive incentives peppered throughout the justice system. This post has surely barely scratched the surface.