Applying Regulatory Measures to Address Crime Problems: An AGILE Approach to Enhancing Public Safety

Adapting Regulations to Crime: The Importance of Specificity

Invoking regulatory authority to prevent crime requires adaptability: effective regulations necessitate adaptation to specific crime problems and their situational contexts, and regulators must be vigilant in adapting regulations to the evolving contexts associated with crimes that are most likely to prompt regulatory responses. In both cases, a focus on the underlying opportunity structure of the crime is paramount, a process embodied in situational crime prevention. Grounded in rational choice perspective, which draws from microeconomics and purports that people weigh the costs and benefits of crime before taking part in it (Cornish and Clarke 2003), situational crime prevention is well established as successfully closing off criminal opportunities by increasing the effort, increasing the risk, reducing the reward, reducing provocations, and removing excuses associated with crime (Clarke 1992, 1997). Indeed, situational crime prevention and its close cousin, problem-oriented policing (Goldstein 1979, 1990), have generated successful measures to reduce crime (Guerette 2009; Guerette and Bowers 2009; Johnson, Bowers, and Guerette 2012).

Situational crime prevention is complemented by environmental criminology (Brantingham and Brantingham 1981), which observes that places can be less attractive to likely perpetrators based on characteristics of the physical environment, or that environs may be “crime neutral” or even generate crime due to the sheer volume of targets that congregate there (Brantingham and Brantingham 1995). These characteristics are consistent with situational crime prevention, and can be identified and tailored to deliver the greatest crime prevention impact by examining crimes specifically and understanding the opportunity structures associated with them. Commercial burglary, for example, is not sufficiently specific for crime prevention development purposes, but burglary of pharmacies is. That is because each specific crime has its own opportunity structure—the components of the crime and its situational context that make it desirable for offending.

These opportunities can be identified through crime script analysis, which teases apart every step of the process of crime commission at a micro level of specificity. For example, in this volume, Petrossian and Pezzella employ crime script analysis (Cornish 1994) to explore the best means of regulatory measures designed to reduce illegal, unreported, and unregulated (IUU) fishing. The analysis informed the identification of strategies to increase the risk of apprehension at each step of the illegal removal and fraudulent processing of fish.

The beauty of opportunity theories of crime and their practical application through situational crime prevention and problem solving is that anyone can engage in the development of measures that will prevent crime. Academics and law enforcement practitioners alike have documented the identification of specific strategies to close off criminal opportunity through a careful analysis of the underlying cause of the problem and its precipitators. But this type of crime prevention activity need not be confined to academics who embrace crime science or police trained in problem solving. As Guranskaya and Nalla put forth in their contribution, the process of identifying specific crime problems and the factors that facilitate it point to an array of mostly nonstate actors who are best positioned to close off opportunities for crime. An argument can be made that a wider array of actors is well positioned to carry out this type of crime prevention through the use of regulatory measures. But to do so requires more than identifying the specific crime to prevent along with its underlying opportunity structure. Successful regulatory measures need to be germane to the array of actors who might invoke, enforce, and respond to the regulation, as well as to the geographic context surrounding the crime.

Ensuring Regulations Are Germane to Actors, Places, and Jurisdictional Contexts

Recognizing the lead actors in regulatory crime prevention is arguably as important as narrowing down the specific opportunity structure of the crime one aims to prevent. It is therefore critical to identify the people who are best positioned to identify and implement regulations, along with the tools and resources they need to be successful. Law enforcement officers, for example, may be the most likely to identify the need for regulatory responses to business-related crimes, but the business owners themselves are the ones who will be tasked with adhering to the regulation, and perhaps a third part altogether—city code enforcement staff—are the stakeholders who will ensure accountability and take action for noncompliance. Drawing from problem-oriented policing’s model of scanning, analysis, response, and assessment (SARA), the analysis stage provides important guidance on contemplating the “who” questions: who is affected by, contributing to, responsible for, and proximate to the crime problem (Clarke and Eck 2003)? Answering these questions will lead to an array of different stakeholders, all of whom are germane in the context of crime prevention through regulatory authority in some manner.

In the process of identifying these stakeholders it is also important to recognize the spatial and jurisdictional context in which people who invoke and respond to regulations interact. In his article, Felson makes the case for focusing on regulatory measures as defined by geographic unit of aggregation. Berg and Shearing also take a place-based focus, reasoning that “bubbles of safety,” defined as shared spaces that prevent opportunities for both harms and crimes, would most benefit from interventions made in partnership with public and private policing. And Scott, in his article, notes that place management is the most common use of regulatory authority invoked by local law enforcement. However, as observed by Freilich and Newman in their introduction to this volume, location may restrict the identification of wide-ranging solutions that span large geographies.

Incentivizing Compliance with Regulatory Measures

Regulations alone are toothless absent effective enforcement, but enforcing regulations is a labor-intensive and expensive undertaking. Understanding and responding to the underlying incentive structures of the actors that regulations aspire to influence can enhance the reach and effectiveness of such measures. Incentive structures may be characterized by actor or situational context, and are often defined by places and the people who manage them. For example, Berg and Shearing focus on places in the context of regulatory measures, but they challenge the view of public and private policing as being distinct and nonoverlapping entities and functions, instead arguing that they are mutually reinforcing, serving both interests. Their focus on regulatory responses is therefore on the partnership between public and private policing in the context of spaces and places that are both public and private in nature, that represent a blurring of public and private interests, and that often defy temporal or jurisdictional boundaries and thus are subject to private policing. Drawing on two examples from the Global South, the authors demonstrate the power of appealing to shared public safety interests in a manner that avoids criminalizing people and prevents the escalation of harms into full-fledged crimes.

In the context of the role of private business in crime prevention, Tilley notes that private businesses are well positioned to engaged in “elegant” crime control measures—those that are benign, unobtrusive, equitable, and cost-beneficial—but cautions that in the context of corporations and private businesses, “taking the hit from crime may be less costly than preventive measures to control it.” He observes that in cases for which profit trumps security, the state may need to incentivize the latter. And Eck observes that every proprietor has a different incentive structure, noting that effective regulation demands an understanding of and tailoring to those incentives. Similarly, Lynch, Stretesky, and Long observe that traditional enforcement does not promote compliance in the context of environmental crime, suggesting that noncoercive efforts to encourage self-policing may be more effective, provided that corporations view such activities as in their interests.

These observations of the need for incentives for compliance with regulatory measures suggest that successful use of such measures must focus both on opportunity structure (dissecting the specific elements of the crime to identify the ways it can be discouraged) and incentive structure (understanding how proprietors can be persuaded to take appropriate crime prevention measures). The situational crime prevention model is certainly useful for the former, but it might also provide a helpful analytic framework for the latter, essentially viewing proprietors who are disinterested in engaging in crime prevention measures that would enhance public safety and reduce their burden on police as “likely offenders.” In this context, efforts to encourage compliance might involve reducing the rewards of noncompliance (e.g., the profit associated with making certain items easy to steal) by leveraging fines, or removing the excuses associated with noncompliance through, for example, setting rules, posting instructions, alerting conscience, and assisting compliance (Cornish and Clarke 2003).

Rule-setting is designed to remove ambiguity about rules and laws. For example, hotel registration laws requiring hotel management to collect identification information from guests are intended to deter criminal activity and aid law enforcement in identifying suspects. But this rule might also prevent management from turning a blind eye to criminal activity, such as drug dealing and human trafficking, on their premises, as documenting guests heightens management’s awareness of their presence and activities.

Another means of removing excuses for noncompliance with regulations is the posting of clear instructions. Signs such as those in restaurant restrooms stating, “Employees must wash hands” enhance compliance because people cannot claim ignorance or misunderstanding about rules, to whom they apply, and under what circumstances. With regard to crime prevention, one might imagine a sign saying, “Employees must deposit cash in the drop box at the end of each shift” would promote compliance of rules designed to prevent convenience store robberies.

Compliance with regulatory measures may also be enhanced by provoking the conscience of the people whose behaviors the regulation is designed to influence. Barring the sale of single-serving alcoholic beverages, such as an ordinance recently proposed by Chicago City Council’s License and Consumer Protection Committee (Bakala 2017), is designed to discourage public intoxication, panhandling, and fighting, and may also reduce drinking and driving. Publicizing drunk driving incidents may alert proprietors to the importance of complying with this code.

The U.S. Department of Homeland Security’s 2008 efforts to regulate the sale of fertilizer containing ammonium nitrate by requiring anyone who buys, sells, or transfers twenty-five pounds or more of the chemical to register with the department presents a similar example (Seidman 2011). Educating businesses about the security threats of ammonium nitrate and widely publicizing examples of the human toll of explosives fashioned with the chemical could promote greater compliance.

Assisting compliance is yet another means of removing excuses. If the state perceives a public interest in aiding businesses in complying with measures designed to enhance public safety, it may choose to invest resources to do so. Revisiting the example of convenience store robberies, local authorities could offer to subsidize the cost of cash drop boxes.

In addition to the strategies referenced above, private sector entities may respond well to education on how crime prevention is in their best economic interest. Take for example the Target Corporation’s Safe City initiative, for which the company took a lead role in place-based crime prevention measures in specific locations for which their stores serve as an anchor, forgoing the need for regulatory compliance (La Vigne, Owens, and Lowry 2010). However, as Tilley notes in his article in this volume, such DAPPER security—that which is benign, well integrated, and mutually beneficial to both business security and public safety interests—is unusual absent state intervention.

Crafting Regulatory Responses That Are Legitimate

Even as regulatory measures hold great promise for crime prevention, most contributors to this volume make note of unintended consequences of regulations in some shape or fashion that may undermine their legitimacy. Legitimacy in the context of the criminal justice system is important in engendering compliance with the law (Sunshine and Tyler 2003). Moreover, regulations that are designed to promote good behavior by corporations or to penalize bad actors may also create black markets, promote organized crime, or raise costs for consumers. Indeed, as Korsell notes, without regulations, organized crime would not exist, in that much of organized crime is designed to avoid the costs associated with labor laws, taxes, zoning requirements, and other regulations.

Some regulations may threaten privacy or free speech (Holt, this volume). Additionally, some forms of noncriminal penalties further penalize people in a manner that can run counter to the interests of public safety, creating barriers to job acquisition and successful reintegration from correctional confinement to the community. And crime displacement, while well established as not being a certainty (see for example Hesseling 1994), may nonetheless occur as a result of regulatory measures. These unintended consequences require a careful balance between regulations designed to promote public safety and those that may do more harm than good.

Tracking the trends in regulatory activities in the United States, Guranskaya and Nalla in their article observe that the expansion of regulatory penalties for noncompliance associated with an array of activities has widened the net of the criminal justice system by criminalizing a large and increasing volume of activities. Of particular note are “precrime” regulations, such as gang injunctions and juvenile curfews, that penalize people before they even enter the criminal justice system, and “postpunishment” penalties like Megan’s Law (Duwe and Donnay 2008) and similar “collateral consequences” (Grant et al. 1970) that are extralegal punishments that extend well beyond the sentence. Expanded regulations that pertain to precrime and postpunishment undoubtedly expand the extent of criminal justice control, increase racial bias, and threaten the legitimacy of the state. While some might argue that this expansion ensnares a larger volume of “likely offenders” in a manner that reduces crime, that argument ignores the impact of expanded correctional control and mass incarceration on public safety and society at large.

In the context of cyber security, Holt cautions that private industry’s crime prevention role, even when coordinated with state-based regulatory measures, may create violations of constitutional rights for citizens and engender mistrust of the state and law enforcement. Using the example of social media platforms intervening to identify and deactivate social media accounts of those supporting terrorist groups, Holt cautions that these actions may infringe upon free speech and right to privacy. Holt also argues that the limited effectiveness of corporate and private organizations’ efforts to combat cyber crime, along with public distrust of their potential overreach in threatening constitutional rights, may also diminish public trust in law enforcement’s effectiveness. Anticipating and mitigating these negative consequences throughout the regulation development, implementation, and enforcement processes requires anticipatory planning (Grabosky 1996).

Noting that crime prevention measures that are overly imposed (overdeterrence) can backfire in the form of crime escalation or displacement, Grabosky recommends developing contingency plans and employing monitoring systems to identify negative consequences and swiftly address them. To avoid such backfires, the choice of regulatory instrument should be driven in part by both the volume and seriousness of the crime (Eck, this volume). And Wortley (1998) advises practitioners to consider preventive responses in the context of how they will be perceived, employing a “feedback loop” that aids in identifying the potential overuse of constraints that could prompt increased criminal behavior due to frustration, arousal, or alienation. These strategies are consistent with Lewin’s (1946) action research model, and are particularly germane for cyber crime, which may be the most likely offense to result in tactical displacement following a prevention measure.

Anticipatory planning may also involve projections conducted prior to rule or regulation passage or promulgation. One example of this type of analysis in the criminal justice context is that of prison and sentencing impact assessments, employed by the federal government and some states in the United States to anticipate the impact of legislation on prison populations and costs to the government. Similarly, some states have passed racial impact statement laws, requiring an analysis of the potential disparate racial impact of criminal justice legislation prior to its passage (Porter 2014).

The Importance of Research and Evaluation in Regulatory Measures

Underscoring all elements of successful regulatory measures to prevent crime is sound research. Thorough analyses are necessary to understand the underlying cause of crime problems, their situational contexts, and their opportunity structures. Evidence-based research is required to justify and legitimize the specific regulations imposed. Projections of the consequences of regulatory measures can inform whether to impose them and in what manner. And ongoing evaluation is paramount to assess implementation fidelity, identify backfires, and adapt regulations to minimize those unintended impacts.

Analyzing the underlying cause of a crime problem is perhaps the most critical step of any problem-solving effort, regardless of whether the response results in regulatory or more traditional law enforcement measures. Crime problem misspecification will lead to the development and implementation of ineffective responses, wasting valuable time and resources. Take for example the ultimately highly successful case of reducing crime at budget motels in Chula Vista, California. Early efforts to address the problem focused on “problem people,” requiring guests to display photo identification upon arrival, and on educating motel owners about the importance of enhancing security and taking crime prevention precautions. These responses were not effective, as it appears motel owners did not view these measures as being in their interests, perhaps perceiving them as costly and time-consuming. A subsequent and more thorough analysis conducted in partnership with a local university, which included interviews with motel managers, a literature review, and analysis of calls for service, pointed to motel management practices as the single biggest factor driving differences in the volume of crime among motels. This led to the passage of an ordinance that held motels accountable for security measures and adherence to a call for service threshold, which reduced calls for service and officer-initiated calls at motels dramatically (Chula Vista, California, Police Department 2009).

In another example of the importance of research and analysis in the regulatory design and enforcement process, Eck (this volume) describes two types of regulatory measures, means-based and ends-based. Means-based measures impose rules and fines to encourage proprietors to take crime prevention measures, while ends-based measures penalize proprietors for generating crime, most commonly through fines, fees, or license revocation. Eck argues persuasively that research is necessary for both types of measures, with means-based measures requiring an evidence base to be legitimate and ends-based measures requiring rigorous statistical analyses with which to justify and support enforcement.

Importantly, evaluation should include a critical but oft overlooked measurement of costs and benefits. Businesses may neglect the costs of crime because they are simply passed onto the consumer in the form of higher prices. Moreover, proprietors might not readily recognize that the business costs of crime include some share of prospective customers who take their business elsewhere due to an unsafe environment. Costs associated with implementing prevention measures in accordance with licensing requirements may well be offset by increased business traffic once the premises are deemed safe. But without quantification of costs of business as usual versus those associated with the regulatory intervention and its outcome it is difficult to justify the measure.

In measuring costs, it is easier to quantify the expense associated with the crime prevention measure being regulated than it is to document the savings associated with crime that is prevented and the associated law enforcement and criminal justice system costs that are averted with that reduction in crime. The Chula Vista motel crime project referenced earlier, however, demonstrates that this type of quantification is fully feasible. Crime analysts monetized the law enforcement hours saved from reduced calls for service at motels to $73,000 in one year alone (Chula Vista, California, Police Department 2009).

This does not consider the benefits of how officers spent their time in lieu of those saved hours, which could yield additional crime prevention measures (assuming, for example, that officer time is freed up to engage in more problem-solving efforts and thus additional reductions in crime).

The benefits of crime-reducing regulatory measures are perhaps the most challenging to document when they are societal and qualitative in nature. Yet from a policy standpoint, efforts to facilitate and expand the use of regulations by nonstate actors could yield positive societal outcomes. As Scott (this volume) observes, a focus on enforcement through civil regulations is less coercive and less likely to yield the disparate impact that traditional policing has imposed on disadvantaged populations and people of color. He writes, “Changing the current balance of responsibility for crime and disorder might go some way toward restoring some of the legitimacy of the police and other criminal justice actors that has been eroding for a long time now.” As such, a case can be made that the public’s perception of law enforcement as legitimate affects the degree to which residents will report crimes, serve as witnesses, and participate in crime prevention partnerships with police (Tyler and Huo 2002).

The types of research and analyses necessary to develop successful regulatory measures and document their impacts, costs, and benefits requires a considerable amount of skill and credibility as objective and authoritative researchers. As Clarke (this volume) observes, this role might best be filled through a partnership between academia and the government. Researchers could conduct surveys of victims, develop and help test new strategies for third-party policing entities and other nonstate actors, monitor impacts, and measure costs and benefits. In countries with robust research infrastructures, some of this evidence development may be taken on by the government. Tilley (this volume) offers the example of the British Home Office’s research (Laycock 2004) on makes and models of cars at highest risk of theft, which helped to guide the auto industry on where the vulnerabilities were and how to address them and had a significant influence on the industry.

Conclusion

This volume offers ample examples of the types of crimes that can be prevented through regulatory responses, as well as the actors and mechanisms best equipped to do so. Taken together, the work presented here argues that an AGILE approach to regulation is most likely to achieve the desired crime prevention impact. It is important to note that the types of regulatory actions and the people who identify, enact, and enforce them will change in accordance with the specific crime—or harm—in question as well as the crime’s situational context and opportunity structure. Effective regulatory measures attend to the specificity of each crime and its attendant opportunity structure and focus on the various state and nonstate actors that could implement and be the subject of regulation, along with the best means of incentivizing their collaboration and compliance.

Regulatory responses demand coordination and collaboration among state and nonstate actors. This shares the burden of crime prevention and diffuses responsibility and resource investment. Moreover, if the state defers to nonstate actors for regulatory prevention measures, it may also save resources that can be reallocated to efforts that more squarely embrace a crime prevention role focused on opportunity reduction. That said, such coordination is not without its challenges, requiring intentional and ongoing engagement and communication that is not often observed among various levels of government, much less between governmental and nongovernmental entities.

In addition to the challenge of coordinating state and nonstate crime prevention efforts, many unintended consequences of regulatory responses to crime exist, perhaps the greatest of which is that regulation often begets crime, particularly in the context of organized crime. Regulatory measures, when overly punitive or lacking in perceived legitimacy, may also backfire and generate more crime. Viewing the criminal justice system more broadly, regulations as manifested in collateral consequences on individuals may increase the odds that people become involved in the criminal justice system, criminalize them for past or potential future behaviors, and create unnecessary burdens to leading productive law-abiding lives in civil society. While not entirely avoidable, anticipating and taking measures to thwart or at least mitigate the unintended consequences of regulations is an important component of successful regulatory responses to crime.

Despite these potential negative outcomes, there is reason to believe that the promise of expanded use of regulation outweighs the drawbacks. Focusing on the United States, from which the majority of examples in this volume are drawn, mass incarceration has been fed by police use of traditional enforcement of crime. By contrast, regulatory efforts that focus more on the context, place, and situation, as well as efforts that distinguish between crimes and harms, stand to yield the desired crime reduction impact without further penalizing those who have already been ensnared in the vast net of the criminal justice system.

Research and evaluation are essential to successful regulatory reforms in every step of the process, from crime problem identification through documentation of existing research evidence; to measurement of regulatory implementation fidelity and backfires; and evaluation of impacts, costs, and benefits. Who conducts that research is open to question: public sector research agencies may be well positioned to conduct surveys and assess risks, but a case can be made for further development of crime science in academic institutions to fill the void in research on regulatory measures and work in partnership with regulators and enforcers to test and evaluate measures. Perhaps the government could play a role in incentivizing and funding such research and pilot studies that, if successful, would share the burden of crime control, save money, and yield greater public safety impacts.