Nudging and the choice architecture of offending decisions

• DOI: http://doi.org/10.1111/1745-9133.12470
• Author: Greg Pogarsky,Shaina Herman
• Date: 01 November 2019
• Published date: 01 November 2019

DOI: 10.1111/1745-9133.12470

RESEARCH ARTICLE

NUDGING & CHOICE IN OFFENDING DECISIONS

Nudging and the choice architecture of offending

decisions

Greg Pogarsky Shaina Herman

University at Albany,State University of New

York

Correspondence

GregPogarsky, School of Criminal Justice,

Universityat Albany, State Universityof New

York,135 WesternAvenue, Draper Hall 219,

Albany,NY 12222.

Email:gpogarsky@albany.edu

Research Summary: Deterring crime is often considered

to be a process of information transmission (e.g., Geerken

& Gove, 1975). Economic notions on incentives and

choice have meshed well with this perspective (Becker,

1968; Matsueda, 2013). Behavioral economics, however,

represents a source of further insights on offender decision-

making, particularly regarding information transmission to

promote conformity. Pogarsky, Roche, and Pickett (2018)

reviewed behavioraleconomic studies of offender decision-

making in criminology. In their review, they focused on

prospect theory (Kahneman & Tversky,1979), a behavioral

economic model of decision-making. More recently, Kah-

neman (2003, 2011) highlighted the dual-process nature

of behavioral economics, and Thaler and Sunstein (2009)

elaborated some principles of nudging. These notions

underscore dimensions of offending decisions beyond the

perceived costs, risks, and benefits of crime.

Policy Implications: From a behavioral economic stand-

point, there is a choice architecture to offending decisions

that permits various prosocial nudges. We analyze these

ideas for possible theoretical innovations and alternative

perspectives on crime policy.

KEYWORDS

behavioral economics, decision-making, deterrence, dual process, nudge

Beginning in the late 1950s, rates of drug, property, and violent crime increased precipitously until

the great crime drop of the early 1990s. These increases coincided with the permissive social and legal

climate of the 1960s and the U.S. Supreme Court’s expansionof cr iminal defendants’r ights under Chief

Criminology & Public Policy. 2019;18:823–839. wileyonlinelibrary.com/journal/capp © 2019 American Society of Criminology 823

824 POGARSKY AND HERMAN

Justice Earl Warren.1During this time, Becker (1968) initiated a period of sustained economic thinking

about crime research and policy. The view took hold that crime increased because it became steadily

less risky and costly for potential offenders. The policy response entailed increasingly punitive crime

control beginning in the 1990s, a period often termed mass incarceration. The linkage to economics

was clear. Becker (1995, p. 6) declared “prison works and, barring any more effective methods, is

useful.” To disincentivize and reduce crime, Becker (1995, p. 9) advocated for “law-and-order-type

policies” like sentence enhancements, stop-and-frisk, more prisons, and three-strike policies.

Ensuing policy initiatives mostly aligned with these recommendations, but now there is widespread

consensus for a less monolithic approach that better comports with recent research findings on crim-

inal deterrence and human decision-making. Criminology lacks consensus on the empirical status of

deterrence principles (e.g., Chalfin & McCrary, 2017; Loughran, Paternoster, Chalfin, & Wilson, 2016;

Pratt, Cullen, Blevins, Daigle, & Madensen, 2006; Tonry, 2008). There is also conflicting evidenceon

key contingencies for deterrence. For example, some researchers have found that criminal propensity

diminishes (e.g., Nagin & Paternoster, 1993; Piquero & Tibbetts 1996), whereas others have found

that propensity enhances (Pogarsky, 2007; Tittle, Ward, & Grasmick, 2004; Wright, Caspi, Moffitt, &

Paternoster, 2004), legal deterrent effects.

Thus, receptiveness to new perspectives has grown. In one such perspective,behavioral economics,

the signature “rational actor” assumption of economic theory is relaxed (Dhami, 2016; Kahneman,

2011; Thaler & Gasner, 2015). Pogarsky, Roche, and Pickett (2018) outlined recent advancements on

offender decision-making that are attributable to behavioral economics. They devoted considerable

attention in their review to prospect theory (Kahneman & Tversky, 1979), a “quasi-rational” model of

decision processes generally considered part of system 2.2More recently,researchers have expounded

the dual-systems aspects of behavioral economics. Kahneman and Frederick (2002, p. 51) observed

that, “[C]ognitive processes can be partitioned into two main families – traditionally called intuition

and reason.” Kahneman (2011) explained that system 2 processes are controlled, effortful, slow, self-

aware, rule-following, and effable. In contrast, system 1 processes are intuitive, automatic, effortless,

fast, unconscious, and ineffable (Thaler & Sunstein, 2009). According to Kahneman (2003), system 1

instinctual processes run continuously, whereas system 2 stays in “low effort mode.” System 2 often

remains unengaged; involvement takes effort and is thus reserved for times when system 1 encounters

difficulty or dissonance.

Although much prior research on offender decision-making has targeted system 2 processes, dual-

process thinking is becoming increasingly evident in criminology.A prominent example is the hot/cool

perspective of van Gelder and de Vries (2012, 2014). The hot mode of processing is affective and

based on emotions such as fear and anger. The cool mode entails the type of dispassionate reason-

ing associated with rational choice theories of crime. Behavioral economics has a broader conception

of system 1 than this; it includes visceral influences but also intuitions and cognitive heuristics or

shortcuts. Thomas and McGloin (2013) invoked dual-process reasoning to distinguish normative peer

influences, which involve attitudinal change over time, from socializing peer influences that are more

momentary. Mamayek, Loughran, and Paternoster (2015) applied dual-process principles to distin-

guish core decision-making constructs, such as impulsivity, self-control, and thoughtfully reflective

decision-making (TRDM; Paternoster, Pogarsky, & Zimmerman, 2011). Our aim in this article is to

examine the dual-process aspects of behavioral economics for potential innovations in crime theory

and policy.

As Thaler, Sunstein, and Balz (2010, p. 428) explained, “People do not make choices in a vacuum.

They make them in an environment where many features, noticed and unnoticed, can influence their

decisions.” This environment comprises a choice architecture for offending decisions. In turn, vari-

ous nudges are possible that leverage aspects of the choice architecture toward conformity. Thaler and