The Behavioral Code: The Hidden Ways the Law Makes Us Better . or Worse

by Benjamin van Rooij

Monitoring the Future study, which surveys about fifty thousand high school seniors every year. What’s unique about these data is that the surveys are administered in schools and are done across the country in the forty-eight contiguous United States. Perhaps more importantly, they are completely anonymous, so these teenagers can feel comfortable telling the truth regarding how they feel about law enforcement.18 Using data from over a decade, Adam and his colleagues examined whether youths’ perceptions of law enforcement have changed in recent years. What we found was depressing but not surprising: youths’ perceptions of law enforcement have declined rapidly in recent years, reaching a decades-long low.

The US legal system is replete with procedurally unfair practices in how the law is applied. One immigration law judge in New York grants 6 percent of applications received while a colleague grants 91 percent.21 The same problems exist with how judges adjudicate Social Security disability dispute claims: some judges reverse administrative decisions about entitlements 10 percent of the time and others up to 90 percent of the time.22 A review of this body of work finds similar inconsistencies in how US authorities decide on patent applications, enforce Medicaid standards in nursing homes, make decisions about removing parental custody over children in cases of abuse and neglect, and conduct nuclear safety inspections.23 And this list goes on and on. Such inconsistencies in these vital legal decisions can easily undermine people’s perception of procedural justice, fairness, and equality in the legal system.

“As a police officer, I have a primary responsibility to protect the constitutional rights of residents” (the guardian mindset). “My primary responsibility as a police officer is to fight crime” (the warrior mindset). What McLean and his colleagues found was fascinating. First, it is entirely possible for officers to be both warriors and guardians. Yet the extent to which officers felt aligned with the guardian mindset was critically important. The more they felt as though they were guardians, the less they supported police misconduct and the more they prioritized procedural justice during interactions with citizens, including doing things like “explaining [why one has] made contact with the subject,” “treating the subject politely and with dignity,” “allowing the subject to explain his side of the story,” and “explaining to the subject the reasons for [the officer’s] decisions.” McLean

There is also evidence from other countries. Lorraine Mazerolle, from the University of Queensland in Australia, conducted the first largescale randomized controlled trial in the field: sixty planned roadblocks were randomly assigned to be policed using either the procedural justice treatment condition or “business as normal.”40 In all, police pulled over between three hundred and four hundred cars per location. In the experimental condition, the traffic cop used a script that focused on the elements of procedural justice, including encouraging citizen participation and voice, and treating them with dignity and respect. They found that the procedural justice approach led to much better outcomes, including improved perceptions about police and higher levels of satisfaction with police in general.

we have a handful of high-quality studies on how to effectively improve the ways police interact with members of the community. But there is a clear problem: while areas of a city may show promise, bad policing in other areas of the city (or country) still threatens the overall progress. Relatedly, while some officers might improve their behavior, the actions of others can completely undermine any progress.

By definition, only some LAPD officers—the ones in the CSP unit—are trained in this community-oriented policing strategy. Community members, residents, and even some of the officers in the unit themselves have reported that the more aggressive policing style of other LAPD units endangers the progress built by the CSP program.

There are also ideas on how to improve procedural justice in enforcing other areas of the law outside the purview of the police. Daniel Ho, who teaches at Stanford Law School, studied food safety enforcement practices at restaurants in King County in Washington State.

But even when those who enforce the law cease brutality, discrimination, and arbitrariness, that does not mean that citizens come to perceive the legal system to be operating in a fair and just manner. So once legal institutions improve actual procedural justice, it is time for step two: building trust in legal institutions.

Every day, parents would see that most of the other parents were on time, and those who were late would see that they were the exception. So, before the fine, social conventions drove parents to get to the daycares on time. But all this changed with the fine. Introducing a penalty eroded the social considerations. It translated a social obligation into a market contract. Rather than view the fine as a punishment and a threat to keep them coming on time, parents quickly began to view it as a payment for an extra service. Parents began thinking, “I can be late because I’m paying you for your time.”

People are social creatures who are guided by unwritten rules of behavior that dictate what is—and what is not—acceptable in society. These social practices and conventions are what psychologists call social norms.

a nutshell, these were the four messages: (1) energy conservation helps the environment; (2) it benefits society; (3) it saves money; (4) it is common.2 Reread those messages and decide how effective you think each would be. Would appeals to save the environment work? We all like to save money, so what about a message pointing to individual benefits, that reducing energy consumption saves you money? What about a simple statement that reducing energy is common? Shortly after hanging the signs, CialdinI and his team interviewed residents to ask them what they thought about the message they had received. People who had received the fourth message, the one that said energy saving is common, were the least convinced that this would reduce their energy consumption. Most thought it would be entirely ineffective. Cialdini’s research team then measured each household’s energy usage data over the following two weeks and found that ones that had received that fourth message had dramatically reduced energy consumption. Even the most wasteful users reduced energy consumption, and that group of households reduced consumption by an average of 1.22 kilowatt hours

The fourth message triggered a social norm, a descriptive social norm, that tells us what other people do. A simple message that the desired behavior is common can trigger even more good behavior.

Energy use only declined among people who realized that they had been using more than their neighbors. For the energy-savers who had already been using less energy than their neighbors, it showed them that, compared to everyone else, they were overachievers.

started to use more energy, an average increase of 0.89 kilowatt hours per household per day—roughly the amount of energy it takes to wash eleven extra pounds of laundry each day. The researchers realized that simply telling people where they stood in comparison to their neighbors gave overachievers a license to use more energy. To deal with this problem, CialdinI added something new to the energy-use information sheets he was sharing with those in the study group: emojis. To the people who were using below-average amounts of energy, CialdinI gave happy-faced emojis. Those who were using too much energy received disapproving, sad-faced emojis. This extraordinarily simple and inexpensive treatment worked beautifully.

Psychologists call the motivators in this powerful effect injunctive social norms. Whereas descriptive social norms entail our perceptions of what other people are actually doing, injunctive social norms entail our perceptions of what others think we should or shouldn’t do.

When social norms support good behavior, we must be careful and leave them intact. In the IsraelI daycares, the mistake was instituting a fine, a punishment that eroded the existing social norm. Similarly, we must be careful whenever we introduce rewards for good behaviors people are already doing. When we do so, this can cause an overjustification effect, in which people become reliant on a reward for a behavior that they were already happy to do without any incentive.

For law to successfully change common misbehavior, it must refrain from accidentally sending messages that reinforce the view that the misconduct is normal or commonly accepted.

Understanding social norms and our responses to other people presents a critical departure from the individual rational choice model that has mostly informed our current legal systems. It shows us that human behavior is not just an individual affair where people weigh costs and benefits. To truly apply the behavioral science and activate the behavioral code, we need a fundamentally different perspective on law. Our legal system mostly addresses individuals, and to a limited and lesser extent organizations. It is not geared for addressing the broader norms that exist between humans in their everyday interactions, whether as cues they take from each other on the street or complex and deeply ingrained cultural values.

All we have seen so far—punishment, incentives, social norms, morals, and our sense of duty—have involved different forms of influences on people’s motivations to comply with or break rules. Yet Sharapova’s story shows us that people must first have the capacity to do what the law demands. Thus, we must first know whether people know the law and can actually follow it.

the University of California, Irvine, hosted an event together with the Securities and Exchange Commission (SEC) and Department of Justice (DOJ) for Chinese businesses wishing to enter or invest in the US market. Each time a Chinese participant asked a particular question, SEC attorneys and DOJ prosecutors quickly stated that they could not give legal advice and then did not answer the question. They did so because giving such information might lead to a client relationship with the Chinese investor and create a fundamental and prohibited conflict of interest with their governmental work. This means that when you do not know the law, and you try and get information from the government in charge of enforcing the law, they will not inform you of how the law exactly applies to your case.

The UC system entered into a settlement agreement following a major fire at a lab at UCLA, the UC campus in Los Angeles. The agreement sought to impose terms on the university system to help prevent similar accidents. One of the terms in the settlement was that lab personnel had to be well-informed about dangerous substances. So the university developed its own organizational rules, complete with individual protocols for about two hundred dangerous substances. Each of these two hundred individual protocols was about twenty pages long. Health and safety compliance managers were tasked with ensuring that all faculty, lab assistants, and students entering these labs agreed to about four thousand pages of safety protocols.

Scholars find that we have individual preferences and intuitions about what the law should be. And what we believe the law should be then influences what we think the law actually is. If we feel or think something is right, we tend to believe it is legal; and when we think something ought to be criminalized, we often assume it is illegal. Therefore, “knowledge” of the law has become a function of attitudes.18 This means that, just like deterrence, legal knowledge is subjective.

Worse, what we believe the law says may obstruct us even after we learn what the law actually says. People resist absorbing legal information that is inconsistent with their folklore.19 All of this, of course, makes it harder to reduce legal ignorance.

For law to truly become effective in changing future behavior, law itself must change. Our lawmakers and the many rule makers who make contracts and organizational rules must fundamentally alter their approach. Rather than respond to each new risk and ambiguity by creating more and more complex rules, they must realize the limits of this approach. If most of our laws and other rules are not known, knowable, or understandable for most people, how can they then come to play a role in shaping our behavior? a different approach is necessary. We must consider which laws and rules truly are needed and will truly be known, shared, and discussed.

Someone suffering from kleptomania will have trouble controlling the urge to steal. And therefore kleptomaniacs have trouble complying with basic criminal rules that outlaw theft.

Of course, kleptomania is rare, and most people can control their impulses to steal. But kleptomania shows that people’s ability to control their urges plays an important role in rule-violating behavior.

Gottfredson and HirschI argued that crime provides criminals with instant gratification. Crime is similar to other undesirable behavior such as excessive drinking, gambling, and promiscuity. People commit crime or engage in such bad behavior to gain pleasure. So their

what keeps us from committing it?28 To them, the answer is self-control. Just as self-control keeps us from smoking, overeating, or cheating, it also keeps us from satisfying the urge for immediate gratification by committing crime. Those with low self-control simply cannot resist the urge for immediate gratification.29 Self-control is what stands between the potential offender and the decision to offend.30

VazsonyI and his colleagues selected ninety-nine high-quality studies for their meta-analysis and examined whether the association between weak self-control and deviant behavior was different for different types of behavior. Here they found the strongest association for deviant behavior in general, at 0.56, which is an effect size rarely found in social science. But there were also remarkably strong effects of weak self-control on crime (0.39), theft (0.34), and physical violence (0.46). Indeed, other reviews of the literature routinely conclude that self-control is one

Two recent meta-analyses of existing studies (one covering thirty-four and the other forty-one studies) find that self-control improvement programs are effective not only in enhancing self-control but also in reducing delinquent behavior.37 One example is the so-called SNAP (Stop Now and Plan) program.

The way SNAP works is that children learn to see “body cues” and “hard thoughts” (such as unrealistic expectations) that promote bad choices. They are taught to Stop when they see such cues or thoughts and take a pause or a breath. Then they learn the Now phase—replacing the hard thoughts with thoughts that are realistic and help them cope with the situation. Finally they learn to Plan their next action to avoid harm and make them feel good.

There are now hundreds of dog-training programs in US prisons and also many similar programs around the globe. The puppy training programs also have another important potential benefit: they could enhance the person’s self-control. The programs are only open to inmates who have followed the rules and behaved well for a period of time. Even after getting a puppy, they have to stay out of trouble or risk losing their dog. And this has had remarkable effects. As one person told researchers: “One of the reasons I stayed out of trouble was so that I could get a dog.”46 One study found that training the dogs made inmates more willing and able to take responsibility for their actions and to become more patient. As another inmate told a researcher: “I got angry with [my dog] . . . but all I could do was sit down and count to ten, because I refuse to be anything else but loving to him.”

prisoners who trained puppies became more patient “with the demands of imprisonment” and also more willing to comply with their prison’s rules.48 This is a hopeful example and evidence that treatment and training programs may be able to empower people to more effectively control their impulses. What the evidence suggests is that self-control is malleable, able to be shaped and changed.

rehabilitation treatment programs have a consistently large effect in reducing re-offending.

All of this shows a new approach to dealing with misbehavior. Besides trying to use incentives or social norms to motivate people, and besides supporting and helping people lead a law-abiding life, we can also just make it harder or impossible to misbehave in the first place.

Cohen and Felson called their idea routine activity theory. This is the idea that people’s everyday activities—where they live, with whom they live, what they buy, whether they work outside the home, and whether they take vacations—affect crime. The researchers thought that three core elements play a role in how routine activities lead to crime. First, there has to be a motivated offender. Clearly, little crime would occur if people were not motivated to commit it. So, for the spike in burglaries in the 1960s and 1970s, there had to have been people who wanted to steal from other people’s homes. Second, there has to be a valuable target. That would have been the houses filled with lightweight valuable goods such as the radios, smaller color TVs, or the tiny but expensive diamond turntable needles. Finally, the target should not be well-guarded.

Multivariate findings for: (1) guardianship are over 5 times more likely to be protective factors, (2) target attractiveness are 3.33 times more likely to be risk factors, (3) deviant lifestyles are 7.4 times more likely to be risk factors, and (4) exposure to potential offenders are 3.12 times more likely to be risk factors.”12

The idea that we can protect ourselves against crime by reducing easy opportunities is quite intuitive. Every day, when we leave our houses, most of us lock our doors. Some of us activate house alarms.

The situational crime prevention approach is not just about changing the physical environment. It is also about reducing access to items that enable harmful behavior.

The idea that we can reduce crime and other damaging behavior by changing access to items that enable the behavior has broad consequences. We can reduce graffitI by restricting who can buy spray paint. We can reduce gun-related shootings by restricting access to guns or ammunition. And we can reduce harm in bar fights by giving customers thicker or shatterproof beer glasses so they can no longer use the broken shards as weapons.26

A big downside to the opportunity approach is that it can create displacement or adaptation. If we add speed bumps to First and Third Streets, we may increase speeding on Second Street. In this approach, the result may be escalation, where offenders use more violent and stronger means. One study found that following the introduction of glass windows between tellers and customers in London post offices, robbers began using more firearms.32 The introduction of car security alarms reduced ordinary car theft—people breaking into parked cars and speeding away. But it may have also led to an increase in carjacking, in which a driver is forced to hand over one’s car at gunpoint.33

In Germany, the steering-column lock law reduced car theft, whereas car theft remained about the same in the United States. The difference was that the US mandated that only new cars needed to have the theft prevention device. People who could not afford a new car became the prime—or perhaps the only—targets for car thieves.34

In one systematic review, criminologists Rob Guerette and Kate Bowers aggregated 102 existing studies and found some type of displacement effect in a little over 25 percent of the cases. However, they found that the crime reduction effects overall dramatically outweighed the displacement effects. By and large, shutting off criminal opportunities prevents more crime than it displaces.35

Further, sometimes situational crime prevention has a positive “halo effect” and reduces crime and misconduct beyond its original scope.36 Houses without security benefit from those in their neighborhood that do.37 CCTV cameras reduce car crimes not only in parking lots where they are installed but also in those where there are no cameras.

If we remove them from society, these “predators” cannot hurt us. One crucial problem with the superpredator rhetoric is that it is entirely falsifiable by the scientific evidence. Youth who commit crime are not destined to become lifelong, career criminals. Inclination toward crime is not stable, let alone permanent. For a long time, researchers have known that crime peaks during adolescence.

The important part of the picture, however, is that after the teenage years, the propensity to engage in criminal behavior declines rapidly. This is the “age-crime” curve.

Crime doesn’t peak during adolescence because teens are dangerous superpredators but because teens are still developing their ability to control their behavior, to consider the consequences of their actions, and to resist peer pressure.48 Teens are not just more impulsive than adults; they are also more likely to focus on the potential rewards in a risky situation than on the potential negative consequences, and they are more sensitive to the heat of the moment.

The Siemens corruption saga shows that human misconduct is not just individual. Much of our behavior occurs inside organizations. And organizations can become structural rule breakers causing massive amounts of damage.

Sure, there are bad apples, but organizations that create, promote, and protect the bad apples ruin the entire barrel.11

Of course, people in organizations should be held accountable. But an even bigger question is what else should be done to address organizational misconduct and prevent it from happening in the future. This forces us to look beyond the bad apples, to looking at the barrel and maybe even the orchard itself.