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Closing the Gap Between Psychology and Law


The technology of operant conditioning has existed for more than ten years, yet most of the literature discussing public policy issues has been devoted to criticisms of the philosophy of behaviorism. Skinner has suggested:

Unfortunately, to understand the principles involved in solving a problem is not to have the solution. To know aerodynamics is not at once to know how to design a plane, to know plate tectonics is not at once to know how to predict earthquakes, to understand the double helix is not at once to be able to create a new species. The details of a problem must be studied. Knowing the basic principles without knowing the details of a practical problem is no closer to a solution than knowing the details without knowing the basic principles. But problems can be solved, even the big ones, if those who are familiar with the details will also adopt a workable conception of human behavior.

Other writers have expressed similar hope for legal reform by closing the gap between psychology and law. Craig Haney has written:

To the extent that people will not tolerate a jurisprudence founded on erroneous assumptions about human behavior, psychology can provide an impetus for change. When legal decisions are based on behavioral assumptions that are wrong they can be challenged. In recent years, several major Supreme Court decisions have rested in part on precisely such challenges-for example, challenges to assumptions about the predictive validity of employment tests [Griggs v, Duke Power Co., 401 U.S. 424 (1971)], the deterrent effect of the death penalty [cf. Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S. 153 (1976)], and the effect of jury size on jury decision-making [Ballew v. Georgia, 435 U.S. 223 (1978)].

While none of the above cases addressed the specific validity of operant conditioning technology, they do establish a clear legal precedent for the introduction of some types of psychological evidence and argument into the legal decision-making process. It remains to be seen whether the law will view operant psychology more receptively than other traditional types of psychological theories. Haney has also warned that the person-centered approach to legal reform is likely to lead only to incremental change and “guarantee that legal solutions will always lag seriously behind the scope and dimension of legal problems”. Additionally, Haney notes:

Currently, much legal reform attempts to effect change via a largely outmoded model of behavior, one which assumes that merely by getting “better people” legal performance and the quality of justice will inevitably improve. Such reforms are typically aimed at things like changing the process by which judges are selected, police are trained, and prison guards educated. But this person-centered strategy overlooks the importance of context and situation in controlling behavior (example omitted). Models of legal reform that change only personnel and not structural aspects of legal settings tend to minimize their own effects.

The operant-conditioning scientist would undoubtedly add that the “context and situation” can best be analyzed by first identifying the contingencies of reinforcement. Hayes and Moley have examined some of the practical and linguistic problems that are presented by the analysis of legal contingencies. An analysis of the use and functions of the term “coercion” showed very different professional approaches to control. Four specific ways by which operant psychologists could help to change coercive legal practices were suggested:

Each of the above suggestions can help to close the gap between psychology and law, but psychologists cannot do the job alone. Lawyers must use their expertise and detailed knowledge of the legal process to predict where the existing contingencies are leading and to subsequently identify those legal contingencies that need to be changed. Indeed, some prediction is essential to determine whether a particular contingency should even be classified as a legal contingency. If the matter does not have a sufficient bearing upon a legitimate government objective, it may be better classified as simply a social or cultural contingency, beyond the scope of legal concern.

An analysis of the current contingencies of reinforcement must be combined with knowledge of the history of reinforcement of the individual. To the extent that past and present reinforcements are positive and contingent on specific behaviors, reliable predictions will be relatively easy. Negative reinforcements may show which specific behaviors have been suppressed but will be significantly less helpful in predicting the direction of behavior. To the extent that past and/or present contingencies of reinforcement are punitive, behavior will be unpredictable and counter-controlling.

 
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Copyright 1985 to 2013 by Eugene Patrick Devany