Opinion: while the application of behavioural insightts to justice policy is at an early stage, there are examples worldwide of how this could work

By Brian Barry, Lucía Morales and Aiden Carthy, TU Dublin

When policy-makers develop a new policy, they must ask a fundamental question: will it work? For example, will a public awareness campaign improve public health outcomes? Can providing better information to customers about their energy usage help to reduce energy consumption? How can websites comparing financial products be better designed to help consumers make more informed choices?

To help answer such questions, policy-makers often integrate behavioural insights – the application of theories and concepts from behavioural science – to road-test new policies or refine existing ones to try to ensure they are as effective as possible in practice.

A recent Department of Justice research report by the authors of this piece presents case studies from multiple jurisdictions exploring how behavioural science and behavioural insights can be used to improve justice policy. Behavioural science integrates theories and concepts from psychology and economics to try to better understand how and why people behave the way they do in the real world.

The potential for behavioural science to improve justice outcomes is undoubtedly significant

Behavioural science evolved out of behavioural economics, a discipline that emerged in the 1970s that sought to explain why people often make irrational economic decisions. Put simply, behavioural scientists explore why human decision-making is often flawed by identifying common errors in our thinking and finding ways to prevent them.

Everyday examples are confirmation bias and hindsight bias. Confirmation bias is our natural tendency to seek out information that confirms our preconceived ideas and to tend to ignore information that challenges our world view or opinions we already hold. Hindsight bias is the tendency to think that something was far more predictable after it has already happened – the inclination to think "I knew that would happen all along". Groups making decisions sometimes engage in groupthink, sometimes adopting a 'herd mentality' that can sometimes lead to poorer decisions.

Teams of behavioural scientists around the globe study these theories and concepts to better understand human decision-making in all aspects of daily life, including in justice policy. Instead of assuming that a good policy idea will work, behavioural scientists conduct studies to test the effectiveness of interventions before scaling them up to the general population.

Behavioural science for the justice sector

How can behavioural insights help to tackle domestic, sexual and gender-based violence? How can policing methods be behaviourally informed to bolster communities’ trust and confidence in law enforcement? How can local crime prevention initiatives be optimised to reduce crime levels, or penal policy refined to achieve better outcomes for prisoners re-entering society? How can court systems be made more efficient, accessible and fair? How can judicial decision-making be improved through training?

Behavioural scientists have designed and tested programmes to encourage reporting of domestic, sexual and gender-based violence. For instance, the Behavioural Insights Team, a global behavioural science organisation, in conjunction with the UN Development Programme, pre-tested different versions of Facebook advertisements targeting bystanders of domestic, sexual and gender-based violence, measuring which advertisements achieved higher engagement rates. Certain advertisements, particularly those that combined challenging social norms with offers of support, were more effective than others.

Behavioural insights have been applied to crime prevention initiatives. In South Africa, researchers identified that crime in a particular community tended to occur at particular times of the week. The researchers conducted a study where young people were invited to various activities and events through a mobile-based app during times when crime rates were higher. Usage of the app correlated with a significant reduction in users’ participation in unsafe activities relative to those who did not use the app.

Developing justice policies is particularly sensitive, profoundly impacting people's lives

To improve efficiency in New York City courts, researchers sought to improve court appearance rates. They prepared a behaviourally-informed, redesigned court summons form, changing its layout and content by making the most relevant information more salient, putting the court date and time at the top of the form and the consequences of missing court in bold typeface. Large-scale field experiments compared appearance rates between those who received the new form versus those who received the existing one. Failures to appear reduced by 13% among those who received the redesigned form.

An increasing number of judicial training programmes now include training for judges, pointing to how cognitive errors such as hindsight bias, confirmation bias and groupthink, can impact the accuracy of the judgments they make. This training can provide opportunities for judges to reflect on how they decide cases, and consider different ways to improve their practice.

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Compared to other areas of public policy such as health, sustainability and consumer choice, the application of behavioural science to justice sector policy is at a relatively early stage. The examples above suggest the possibilities for ‘easy wins’ to help make justice policy more effective, improve outcomes and save money for the taxpayer.

However, developing justice policies is particularly sensitive, profoundly impacting people’s lives. As such, justice policy-makers ought to carefully consider how they design and implement interventions, and reflect on the ethical concerns that may arise. ‘Problems’ in the justice sector that need to be ‘tackled’ should not be assumed. Rather, they should be identified, and hypotheses generated, based on observations of reliable data. Policy-makers should be wary that their seemingly excellent ideas may not necessarily work in practice and that what works in one jurisdiction may not automatically translate to the Irish context. As such, interventions ought to be tested through appropriate, rigorous scientific methods.

The potential for behavioural science to improve justice outcomes is undoubtedly significant. The time and effort spent designing and refining justice policies through behavioural insights and pre-testing before they are put into practice may well be worth the reward, potentially leading to better, fairer justice for Irish citizens.

Dr Brian Barry is a lecturer in the Department of Law at the School of Languages, Law & Social Sciences at TU Dublin. Dr Lucía Morales is an Educator and Active Researcher in the School of Accounting and Finance at TU Dublin. Dr Aiden Carthy is a Lecturer and Director at the Research Centre for Psychology, Education and Emotional Intelligence at TU Dublin.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ