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:
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First, “contribute to the design of effective
controls which avoid the use of coercive contingencies.”
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Second, “contribute to an analysis of the effects
of cultural practices” and identify those coercive practices which are
required to ensure compliance with long-term contingencies (government
objectives).
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Third, “aid in the development of behaviorally
sound practices where coercion must be used by the state.” The use of
coercion by the state becomes behaviorally sound only when it is used if
an individual is behaving in ways which are discordant with his own
long-term good (e.g. compulsory education) or with the short or
long-term good of the group (e.g. disturbing the peace or
counterfeiting). Additionally, the contingent application of coercion by
the state must be combined with contingent removal. The individual must
be provided with a reasonable opportunity for behavior change and the
potential to get out of the coercive environment. “Coercive practices
imply a contract.” The “state has an obligation to specify the reasons
for its use of coercion and the behaviors which will be required in
order for the coercion to be withdrawn. The state would have to specify
how these behaviors would be measured and would have to provide the
person every opportunity to acquire the necessary behaviors.”
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Fourth, contribute to clarifying the terminology
surrounding cultural practices.
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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