Cultivating Conscience: Crime, Punishment, and New York City

It was easy to become enamored with the thesis of Sarah Blaffer Hrdy’s book, Mothers and Others, in which she proposes that the hallmark of humanity is not strife and competition, but rather cooperation and sharing. Those latter attributes would have been necessary for survival as mankind evolved over the eons to become Homo sapiens. If cooperation and sharing were long lived survival requirements, then one would expect a lasting cultural and a genetic predisposition towards such behavior.

Lynn Stout discusses human behavior, albeit coming from a different direction, in her book Cultivating Conscience: How Good Laws Make Good People. Stout is the Paul Hastings Professor of Corporate and Securities Law at the UCLA School of Law. By "conscience," Stout refers to the tendency for individuals to exhibit "prosocial" behavior, the type of responses that Hrdy would expect of her humans. Stout claims that these aspects of human behavior are not sufficiently recognized and makers of laws and policies often make mistakes and produce counterproductive results by ignoring them.

While Hrdy uses observations of humans in their natural state—hunting and gathering—to produce her hypothesis, Stout bases her conclusions mostly on behavioral psychology and gaming experiments. This particular type of experiment is designed to determine how individuals behave when placed in a situation where they can either exhibit a sharing response or a selfish response. The games are designed to have a range of boundary conditions in order to understand the factors determinative of prosocial or selfish decisions. Stout summarizes the results of these experiments as follows.


"Unselfish prosocial behavior toward strangers, including unselfish compliance with legal and ethical rules, is triggered by social context, including especially:
1. instructions from authority
2. beliefs about others’ prosocial behavior
3. the magnitude of the benefits to others
Prosocial behavior declines, however, as the personal cost of acting prosocially increases."

And in addition:


"....each of these three variables maps onto one of three universal and well-studied traits of human nature. These three basic psychological traits are: obedience to authority; conformity to the behavior of those around us; and empathy for others."

Stout’s analysis is worthy of further treatment, but for the moment let us concentrate on the notion that social context is very important in determining the behavior of an individual. Let us note that unlawful behavior can be considered an extreme example of selfish behavior. Consequently, the incidence of criminal behavior is dependent on social context as well. If the laws passed down by the authorities are deemed to be fair and are observed to be followed by others, then most people will follow the law also. The plea contained in Stout’s book is for those who make laws and determine policy to take note of this and to follow practices that encourage prosocial behavior rather than to incentivize selfish behavior.

Let us now allow Adam Gopnik to take us a little deeper into the issue of crime in New York City. Gopnik produced an outstanding article for The New Yorker titled The Caging of America, in which he discusses many issues related to our system of justice and our habit of incarcerating enormous number of individuals, particularly those from minorities. Here the focus will be on the last part of his article where he discusses New York and its anomalously large drop in crime over the past few decades.

Gopnik reminds us that the 1960s and 70s were permeated with the fear and concern caused by a massive nationwide crime wave.


"For those too young to recall the big-city crime wave of the sixties and seventies, it may seem like mere bogeyman history. For those whose entire childhood and adolescence were set against it, it is the crucial trauma in recent American life and explains much else that happened in the same period."

But then something happened, and crime began to fall, by as much as 40% across the country. The social fixes favored by the liberals and the retributive prison sentences favored by conservatives seemed to have nothing to do with it. Gopnik turns to a book by Franklin E. Zimring, The City That Became Safe for an explanation.


"One thing he teaches us is how little we know. The forty per cent drop across the continent—indeed, there was a decline throughout the Western world— took place for reasons that are as mysterious in suburban Ottawa as they are in the South Bronx. Zimring shows that the usual explanations—including demographic shifts—simply can’t account for what must be accounted for. This makes the international decline look slightly eerie: blackbirds drop from the sky, plagues slacken and end, and there seems no absolute reason that societies leap from one state to another over time. Trends and fashions and fads and pure contingencies happen in other parts of our social existence; it may be that there are fashions and cycles in criminal behavior, too, for reasons that are just as arbitrary."

New York City sticks out as an exception. Crime there did not fall 40%—it fell 80%. Zimring believes he has an explanation for this extra 40%. It was not so much the vaunted "broken windows" approach, rather instead:


"....small acts of social engineering, designed simply to stop crimes from happening, helped stop crime. In the nineties, the N.Y.P.D. began to control crime not by fighting minor crimes in safe places but by putting lots of cops in places where lots of crimes happened—‘hot-spot policing.’ The cops also began an aggressive, controversial program of ‘stop and frisk’—‘designed to catch the sharks, not the dolphins,’ as Jack Maple, one of its originators, described it—that involved what’s called pejoratively ‘profiling.’ This was not so much racial, since in any given neighborhood all the suspects were likely to be of the same race or color, as social, involving the thousand small clues that policemen recognized already. Minority communities, Zimring emphasizes, paid a disproportionate price in kids stopped and frisked, and detained, but they also earned a disproportionate gain in crime reduced."

"Small acts of social engineering" is just another way of saying that changes were made in the social context in which decisions about behavior were being made.

Gopnik then provides a passage with which Lynn Stout would surely concur.


"And, in a virtuous cycle, the decreased prevalence of crime fuels a decrease in the prevalence of crime. When your friends are no longer doing street robberies, you’re less likely to do them. Zimring said, in a recent interview, ‘Remember, nobody ever made a living mugging. There’s no minimum wage in violent crime.’ In a sense, he argues, it’s recreational, part of a life style: ‘Crime is a routine behavior; it’s a thing people do when they get used to doing it.’ And therein lies its essential fragility. Crime ends as a result of ‘cyclical forces operating on situational and contingent things rather than from finding deeply motivated essential linkages.’ Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry."

This sequence of findings is tremendously uplifting. Hrdy tells us that mankind evolved, by necessity, into a cooperative beast capable of sharing with others. Stout explains how in spite of the best efforts of some to convince us that our actions are driven by selfish motives, science has concluded that we still retain that innate prosocial behavior, and we will persist in that behavior unless provoked to do otherwise. And Gopnik provides us with an example where dreadful social problems seem to have been cured by minor tweaks to the social environment. Gopnik gets caught up in the moment and issues this statement:


"But one thing is sure: social epidemics, of crime or of punishment, can be cured more quickly than we might hope with simpler and more superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is actually a decent strategy, if the Band-Aid helps the wound to heal itself."

Let us share the optimism and enjoy the moment—at least for now.