Wrong side of the law
Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule
Kenworthey Bilz
Journal of Empirical Legal Studies, March 2012, Pages 149-171
Abstract:
Historically, the Supreme Court has offered two justifications for the exclusionary rule: (1) it protects the integrity of the judicial system from "dirty" evidence and (2) it deters illegal searches by the police. The former justification has mostly fallen out of favor. Today, decisions turn on whether the rule would, in fact, deter illegal searches in a given class of cases. As such, most empirical studies about the rule have focused on whether or not the rule leads to fewer police searches (illegal or otherwise), or to fewer criminal convictions. This study takes a completely different approach, assessing support for the two competing justifications for the rule. Two experiments show support for the integrity justification for the rule, but not for the deterrence justification. Specifically, when deciding whether to exclude evidence found during a search conducted without probable cause, participants are sensitive to a police officer's motive (clean vs. dirty), but not to alternative means of punishing those officers (civil suit, citizen-police review board). A third experiment examines the integrity rationale in more detail. Participants who were obligated to use dirty evidence at trial disproportionately selected a bottle of Purell over a pen as a thank-you gift versus participants who were able to exclude that evidence. In other words, the exclusionary rule seems to protect the courts from being metaphorically tainted. These findings are important given that the rule is not constitutionally mandated. The Supreme Court has held that the rule can be ignored to the extent that it (1) does not achieve its goals and (2) undermines the perceived legitimacy of the courts by the public. Given this, the Court needs to be right about what those goals are, and whether or not its current deterrence-based jurisprudence enhances legitimacy. These experiments suggest the possibility that reinvigorating the integrity justification would serve the ends of the rule better than current doctrine does.
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David Baldus et al.
Journal of Criminal Law and Criminology, Fall 2011, Pages 1227-1336
Abstract:
This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n = 105) during that time period. Over the last thirty years, studies of state death-penalty systems have documented three types of evidence of racial disparities in the treatment of similarly situated death-eligible offenders. The most common disparity or "race effect" is that capital charging and sentencing decisions are applied more punitively in cases involving one or more white victims than they are in similar cases with no white victims. These disparities are generally viewed as evidence of "race of victim" discrimination in the system. The next most common race-based disparity is the more punitive treatment of cases involving a black or minority defendant and one or more white victims compared to the treatment of cases involving all other similarly situated defendant/victim racial combinations. These disparities are viewed as evidence of "minority-defendant/white-victim" discrimination in the system. The least common racially based disparity is the more punitive treatment of cases involving black and minority defendants compared to the treatment of similarly situated white-defendant cases, regardless of the race of the victim involved in the case. These race effects are usually referred to as evidence of "independent" or "main effect" racial discrimination. The data in this study document white-victim and minority-accused/white-victim disparities in charging and sentencing outcomes that are consistent with these findings. The data also document independent minority-accused disparities of a magnitude that is rarely seen in state court systems. The principal source of the white-victim disparities in the system is the combined effect of convening authority charging decisions and court-martial panel findings of guilt at trial - decisions that advance death-eligible cases to capital sentencing hearings. The principal source of the independent minority-accused disparities in the system is the death-sentencing decisions of panel members in capital sentencing hearings. The evidence in the sixteen cases with multiple victims, which are the principal source of the race effects in the system, supports Supreme Court Justice Byron White's hypothesis that in death-eligible murder cases, the greatest risk of "racial prejudice" exists in highly aggravated minority-accused/white-victim cases. There is, however, little or no risk of racial prejudice among the small group of cases that constitute the most aggravated military cases - those with substantial military implications because they involve lethal attacks on United States troops or commissioned officer victims. Limiting death eligibility to death-eligible murders with substantial military implications could substantially reduce or entirely eliminate the risk of racial bias in the administration of the military death penalty. Without regard to the race of the defendant and victims, those cases uniformly receive more punitive treatment than "civilian-style" murder cases that have no military implications. This has particularly been the case between 1990 and 2005. Militarily implicated cases have accounted for 75% (6/8) of the military death sentences imposed during that period.
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Peter Leeson & Christopher Coyne
Journal of Comparative Economics, forthcoming
Abstract:
This paper analyzes trial by poison ingestion, or "sassywood," as an institution of criminal justice in contemporary Liberia. We argue that effective criminal justice institutions must satisfy three conditions: they must be accessible to citizens, incentivize judicial administrators to pursue justice instead of private ends, and generate useful information about accused criminals' guilt or innocence. Liberia's formal criminal justice institutions fail to satisfy these conditions. Sassywood does a better job of fulfilling them. Sassywood is more accessible than Liberia's formal criminal justice institutions. It provides judicial administrators stronger incentives to pursue justice. And, unexpectedly, it's capable of generating useful information about criminal defendants' guilt or innocence where Liberia's formal criminal justice institutions do not. The theory this paper provides offers a plausible explanation of why sassywood is a sensible institutional substitute for formal Liberian criminal justice.
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Racial Threat, Suspicion, and Police Behavior: The Impact of Race and Place in Traffic Enforcement
Kenneth Novak & Mitchell Chamlin
Crime & Delinquency, March 2012, Pages 275-300
Abstract:
Racial bias in traffic enforcement has become a popular line of inquiry, but examinations into explanations for the disparity have been scant. The current research integrates theoretical insights from the racial threat hypothesis with inferences drawn from the empirical analyses of the factors that stimulate officer suspicion. The most intriguing finding from this beat-level examination of the structural predictors of several traffic stop outcome measures concerns the conditional effect of the racial composition of the beat on search rates. The analyses reveal that the search rate increases in areas where the proportion of Black residents is higher; however, this finding is observed only for White motorists. This finding is interpreted as indicating that structural characteristics of an area can provide cues to officers regarding who belongs in that environment. As a result, social control increases among groups whose racial characteristics are inconsistent with the neighborhood racial composition.
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Age Matters: Race Differences in Police Searches of Young and Older Male Drivers
Richard Rosenfeld, Jeff Rojek & Scott Decker
Journal of Research in Crime and Delinquency, February 2012, Pages 31-55
Abstract:
Prior research on police searches of motorists has consistently found that Black drivers are more likely to be searched than White drivers. The authors argue that race differences in police searches depend on the driver's age. In logistic regression and propensity-score matching analyses of St. Louis police traffic stops, the authors find that young Black males are subjected to discretionary searches at higher rates than are young White males. By contrast, among drivers age 30 and older, Black males are no more likely, and in some analyses are less likely, than White males to be subjected to a discretionary search. The study findings are consistent with studies of young Black males' negative experience with and attitudes toward the police. If replicated in future research, however, the findings suggest that it may be difficult to prove that police searches of young Black males result primarily from racial bias or unlawful discrimination.
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David Kirk
Criminology, forthcoming
Abstract:
Many former prisoners return home to the same residential environment, with the same criminal opportunities and criminal peers, where they resided before incarceration. If the path to desistance from crime largely requires knifing off from past situations and establishing a new set of routine activities, then returning to one's old environment and routines may drastically limit an ex-prisoner's already dismal chances of desisting from crime. This study tests these ideas by examining how forced residential migration caused by Hurricane Katrina affected the likelihood of reincarceration among a sample of ex-prisoners originally from New Orleans, LA. Property damage from the hurricane induced some ex-prisoners who otherwise would have moved back to their former neighborhoods to move to new neighborhoods. Findings from an instrumental variables survival analysis reveal that those parolees who moved to a new parish following release were substantially less likely to be reincarcerated during the first 3 years after release than those ex-offenders who moved back to the parish where they were originally convicted. Moreover, at no point in the 3-year time period was the hazard of reincarceration greater for those parolees who moved than for those who returned to the same parish.
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Assessing the impact of imprisonment on recidivism
William Bales & Alex Piquero
Journal of Experimental Criminology, March 2012, Pages 71-101
Objectives: There is debate about the extent to which imprisonment deters reoffending. Further, while there is a large literature on the effects of imprisonment, methodologically sound and rigorous studies are the exception due to problematic sample characteristics and study designs. This paper assesses the effect of imprisonment on reoffending relative to a prison diversion program, Community Control, for over 79,000 felons sentenced to state prison and 65,000 offenders sentenced to Community Control between 1994 and 2002 in Florida.
Methods: The effect of imprisonment on recidivism is examined within one-, two-, and three-year follow-up periods using Logistic Regression, Precision Matching, and Propensity Score Matching.
Results: Findings indicate that imprisonment exerts a criminogenic effect and that this substantive conclusion holds across all three methods.
Conclusions: The main contribution of this study is that various methods yield results that are at least in a similar direction and support overall conclusions of prior literature that imprisonment has a criminogenic effect on reoffending compared to non-incarcerative sanctions. Limitations and directions for future research are noted.
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The Use of Life and Death as Tools in Plea Bargaining
Susan Ehrhard-Dietzel
Criminal Justice Review, March 2012, Pages 89-109
Abstract:
Given its severity, the death penalty may play a unique role in plea bargaining, unlike that of a lesser maximum sentence of life without parole, which involves the defendant's loss of his freedom but not the loss of his life. The possibility of a death sentence may be powerful incentive for the defense to accept a plea bargain; accordingly, prosecutors may use the death penalty as leverage to induce a guilty plea in death-eligible cases. Interviews with prosecutors and defense attorneys in a state where the maximum punishment for murder is death and a state where the maximum punishment for murder is life without parole are used to explore the role of the death penalty as leverage in plea bargaining, as compared to the role of a maximum sentence of life without parole. Findings suggest that prosecutors are not necessarily inclined to charge capital murder in order to induce a guilty plea, given considerations including ethics and financial cost, considerations that are largely absent from decision making in cases where the maximum possible sentence is life without parole.
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Judicial Expenditures and Litigation Access: Evidence from Auto Injuries
Paul Heaton & Eric Helland
Journal of Legal Studies, June 2011, Pages 295-332
Abstract:
Despite claims of a judicial funding crisis, there exists little direct evidence linking judicial budgets to court utilization. Using data on thousands of auto injuries covering a 15-year period, we measure the relationship between state-level court expenditures and the propensity of injured parties to pursue litigation. Controlling for state and plaintiff characteristics and accounting for the potential endogeneity of expenditures, we show that expenditures increase litigation access, with our preferred estimates indicating that a 10 percent budget increase increases litigation rates by 3 percent. Consistent with litigation models in which high litigation costs undermine the threat posture of plaintiffs, increases in court resources also augment payments to injured parties. We present suggestive evidence that these effects are driven by general expenditures rather than judicial salaries.
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E. Rely Vîlcică
Journal of Criminal Justice, March-April 2012, Pages 103-116
Purpose: The role of dismissal as a major case disposition in criminal courts in America has been largely neglected in empirical studies to date, despite long-lasting questions about its nature and important implications for justice goals. This paper is a first attempt to fill in this gap. Drawing on untested assumptions about a possible dismissal-reoffending connection, the paper proposes a public safety framework for examining the nature of dismissals and their consequences for the community. Under this perspective, dismissal is a function of defendants' risk attributes and contributes to subsequent public safety threat.
Methods: To test these hypotheses, predictive and causal analyses were conducted on an 800-case sample of criminal defendants in one large urban American jurisdiction, Philadelphia, Pennsylvania. Cases were sampled at the first judicial stage and followed as a cohort for one year to record disposition and post-disposition outcomes.
Results: The findings indicate that defendants' risk attributes contribute to the explanation of dismissal and that dismissal in itself adds to the probability of subsequent offending.
Conclusions: The findings raise questions about the justice system goals, particularly deterrence and have important policy implications for the processing and disposition of criminal cases in American jurisdictions.
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Mario Cano & Cassia Spohn
Criminal Justice and Behavior, March 2012, Pages 308-332
Abstract:
Although sentencing of drug offenders in federal courts is complicated by minimum penalties, which trump the guidelines, the mandatory penalties can be avoided if offenders receive substantial assistance departures. Nagel and Schulhofer contend that substantial assistance departures are used to mitigate the sentences of "sympathetic" and "salvageable" offenders. The authors tested this contention, using data on drug offenders facing mandatory minimum sentences in three U.S. district courts. Results reveal that substantial assistance departures are used to reduce the sentences of certain types of offenders facing mandatory minimum penalties: females, U.S. citizens, employed persons, those with some college, those with dependent children, and those who played a minor or minimal role in the offense. Findings also revealed that racial-ethnic differences among male offenders were masked by the racial-ethnic similarities among female offenders in the full model and that the effect of gender was confined to Black and Hispanic offenders.
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The Booker Decision and Discrimination in Federal Criminal Sentences
Andrew Nutting
Economic Inquiry, forthcoming
Abstract:
I test how federal criminal sentences changed after the Supreme Court decision U.S. v. Booker changed the sentencing guidelines from "mandatory" to "advisory." Conditional on final guideline cell, results show Booker significantly reduced sentences, especially for women and defendants with a terminal high school degree, but less so for college graduates. This suggests discrimination among federal judges. When accounting for judges' control over final offense level, evidence regarding high school graduates and college graduates is unchanged, but evidence that sentences fell for women and the default group weakens substantially. This latter result suggests, perhaps, a new methodology by which judges applied offense levels and guideline-conditional sentences post-Booker.
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Bruce Taylor, Christopher Koper & Daniel Woods
Criminal Justice Review, March 2012, Pages 24-50
Abstract:
This article focuses on a relatively new innovation for use by law enforcement, license plate recognition (LPR) systems, in fighting auto theft. While it is a promising technology, there has not been much research on the effectiveness of LPR systems. The authors conducted a randomized experiment to study the effects of LPR devices on auto theft. The authors found that the LPR is achieving its most basic purpose of increasing the number of plates scanned by officers (8 times greater) compared to manual plate checking. Further, when compared to manual checking, the LPR was associated with more "hits" (i.e., positive scans) for auto theft and stolen plates, more arrests for stolen vehicles, and more stolen vehicle recoveries. Unexpectedly, the authors found that manual plate checking by a special auto theft unit (but not LPR scanning by the same unit) was associated with less auto theft 2 weeks after the intervention (based on both police crime reports and calls for police service) than the control group (regular nonspecialized patrol without LPR). Finally, the authors found no evidence of crime displacement occurring from their targeted routes to adjacent areas for any of their models. This study provides evidence that LPR use can achieve demonstrable benefits in combating auto theft (i.e., more plates scanned, "hits," arrests and recoveries with LPR). These results are impressive for the field of auto theft where so little research tested interventions exist. Future work will involve developing strategies that maintains the documented benefits of LPR use by a specialized unit, but also achieve the benefits associated with manual checking by a specialized unit.
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Traffic Stop Encounters: Officer and Citizen Race and Perceptions of Police Propriety
Christopher Huggins
American Journal of Criminal Justice, March 2012, Pages 92-110
Abstract:
The continued legacy of racism and discrimination contribute to racial and ethnic differences in attitudes about the police. This research investigates citizen reports of proper police behavior during traffic stops to understand how officer/citizen race and ethnic pairs influence reports of impropriety. Analysis of 6,301 citizen reports of traffic stop encounters with the police from a unique national survey reveals that net of other important explanatory variables, African-Americans are less likely than whites to report proper police behavior when they encounter officers of any race. In addition, citizen reports indicate that the white/black and black/white officer/citizen encounters are significantly less likely to result in a report of proper police behavior than the white/white officer/citizen pairing. The results show limited support for the importance of citizen race and officer/citizen pairs in determining perception of police behavior.
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Selected to Serve: An Analysis of Lifetime Jury Participation
Mary Rose, Shari Seidman Diamond & Marc Musick
Journal of Empirical Legal Studies, March 2012, Pages 33-55
Abstract:
Using a survey of a random sample of 1,380 Texas adults, we consider what factors distinguish those who have ever had an opportunity to serve on a jury from those who have not ("lifetime participation"). Residential stability and willingness to serve distinguished former jurors from those who had never been summoned or had never been questioned for a case. After controlling for age, neither race nor ethnicity accounted for participation, a finding replicated in data from another state. No factors differentiated former jurors from people who have been questioned but never selected. Our results strongly indicate that improvements to participation should focus on attrition that occurs before potential jurors reach the courtroom.
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Nirej Sekhon
Journal of Criminal Law and Criminology, Fall 2011, Pages 1171-1226
Abstract:
Police departments have broad policymaking discretion to arrest some offenders and permit others to engage in criminal misconduct. The way police departments exercise this discretion has harmful distributive consequences. Yet, courts do virtually nothing to constrain departmental discretion. This is because constitutional criminal procedure is preoccupied with individual officer discretion and assumes that the most significant decision moment an officer faces is distinguishing guilt from innocence. I argue that this framing obscures the vast policymaking discretion police departments wield and the central choice they confront: distinguishing among the guilty. This Article identifies the mechanics and anti-egalitarian consequences of departmental discretion. Departmental discretion has three dimensions: geographic deployment, enforcement priority, and enforcement tactics. Through these policy choices, police departments are able to distribute the costs and benefits of proactive policing within jurisdictions. Case studies of narcotics enforcement and quality-of-life policing concretely demonstrate how departmental choices create inegalitarian distributive consequences. I argue that courts and other public institutions ought to prevent such consequences. This prescription requires conceptualizing arrests, and proactive policing more generally, in terms of distributive justice. Unlike dominant theories of criminal enforcement, distributive justice offers a normative vision that privileges democratic equality. Distributive justice suggests that, for crimes that are subject to proactive policing, probable cause alone should not justify arrest. Rather, police departments should also be required to demonstrate that a given arrest is part of an egalitarian distribution of arrests.
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Sungwoo Lim et al.
American Journal of Epidemiology, forthcoming
Abstract:
The authors assessed the risks of drug-related death, suicide, and homicide after release from New York City jails in 155,272 people who were incarcerated anytime from 2001 through 2005 and examined whether the mortality rate was associated with homelessness. Using jail records matched with death and single-adult homeless registries in New York City, they calculated standardized mortality ratios (SMRs) and relative risks. After adjustment for age, sex, race, and neighborhood, the risks of drug-related death and homicide in formerly incarcerated persons were 2 times higher than those of New York City residents who had not been incarcerated in New York City jails during the study period. These relative risks were greatly elevated during the first 2 weeks after release (for drug-related causes, SMR = 8.0, 95% confidence interval (CI): 5.2, 11.8; for homicide, SMR = 5.1, 95% CI: 3.2, 7.8). Formerly incarcerated people with histories of homelessness had higher rates of drug-related death (RR = 3.4, 95% CI: 2.1, 5.5) and suicide (RR = 2.1, 95% CI: 1.2, 3.4) than did persons without such histories. For individuals who died of drug-related causes, longer jail stays were associated with a shorter time until death after release. These results suggest that jail- and community-based interventions are needed to reduce the excess mortality risk among formerly incarcerated people.
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Linguistic Recognition as a Source of Confidence in the Justice System
Amy Liu & Vanessa Baird
Comparative Political Studies, forthcoming
Abstract:
How does linguistic recognition in the courtroom affect popular confidence in the justice system among minorities? The authors argue (a) the recognition of either a minority language and/or a third-party's language (lingua franca) during judicial proceedings increases confidence levels but (b) the use of a lingua franca is more effective. This is because minorities are more likely to favor an arrangement that levels the playing field by having everyone speak a lingua franca (relative fairness) than one that allows them to use their own language in a courtroom that is otherwise dominated by the majority language (absolute fairness). Using original data measuring the linguistic recognition in the judiciary, the authors find a significant and robust relationship between languages of the court and popular confidence in the justice system.
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Mock Jurors' Perception of Stalking: The Impact of Gender and Expressed Fear
Emily Dunlap et al.
Sex Roles, March 2012, Pages 405-417
Abstract:
Two experiments investigated mock-juror perceptions of intimate stalking using Kentucky's (United States) anti-stalking legislation. Experiment 1 used a mock-juror methodology in which 177 undergraduates (87 men and 90 women) from a large southeastern US university read a stalking trial summary and rendered individual judgments as mock jurors. The main research question of Experiment 1 was how participant gender impacted trial judgments (e.g., verdict) when the gender of both the defendant and victim were manipulated. Overall, the results showed that men rendered significantly fewer guilty verdicts than women, particularly in conditions that included the prototypical type of intimate stalking (female victim/male defendant). In Experiment 2, also using a mock-juror methodology, 129 undergraduates (51 men and 78 women) from a large southeastern U.S. university read a stalking trial summary (involving a female victim and male defendant) and rendered individual judgments as mock jurors. The main research question of Experiment 2 focused on whether victim fear (high or low) impacted trial judgments (e.g., verdict). The results yielded an interaction of participant gender and victim fear. Specifically, whereas different levels of fear did not impact women, men yielded fewer guilty verdicts in the low victim fear condition compared to the high victim fear condition. The results of the present experiments are discussed in terms of the implications of stalking allegations brought to trial.
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Police Perceptions of Sexual Assault Victims: Exploring the Intra-Female Gender Hostility Thesis
Ericka Wentz & Carol Archbold
Police Quarterly, March 2012, Pages 25-44
Abstract:
This study explores variation in the perception of sexual assault victims among male and female police officers in a Midwestern police agency. Surveys that include both qualitative and quantitative questions are completed by 100 patrol officers. An analysis of qualitative data revealed some support for the Intra-Female Gender Hostility Thesis, which posits that female officers subscribe to rape myths and victim blaming more than male officers. Quantitative analysis showed no significant differences in the way that male and female officers perceived sexual assault victims. Policy implications based on these findings are presented and discussed at the end of this article.
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Michael White & David Klinger
Crime & Delinquency, March 2012, Pages 196-221
Abstract:
Recent police shootings in which multiple officers fired numerous rounds at suspects have led some observers to assert that such situations involve "contagious fire," where an initial officer's shots launch a cascade of gunfire from other officers present. Although there is anecdotal recognition of the contagious fire phenomenon among police and the media, there is not a single empirical study documenting its existence in more than 50 years of deadly force research. This article uses Philadelphia Police Department shooting data to explore the potential for police shootings to become contagious. The article provides a testable definition of contagious shootings and identifies predictors of three outcomes: multiple officer shootings, the average number of shots fired per officer, and multi-officer, multi-shot incidents. Findings show that the requisite preconditions for a contagious shooting rarely occur, and when the preconditions were met, there is no evidence to support the existence of a contagion effect.
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Citizens' Attitudes Toward Wrongful Convictions
Marvin Zalman, Matthew Larson & Brad Smith
Criminal Justice Review, March 2012, Pages 51-69
Abstract:
Perhaps no problem challenges the legitimacy of the criminal justice system more than the conviction of factually innocent individuals. Numerous highly publicized exonerations that occurred since 1989 have raised the visibility of wrongful conviction, eliciting the attention of both scholars and policy makers. Much of the research in this area focuses on the causes and incidence of the phenomenon. Despite the growing body of research, however, there has been no examination of how citizens view this problem. Using data from a statewide survey of Michigan residents, the present study aims to fill that gap in the literature by reporting on citizens' attitudes regarding the issue of wrongful conviction. Overall, the results of this exploratory study suggest that respondents not only recognize the incidence of wrongful conviction but also believe that such errors occur with some regularity. Further results show that respondents believe wrongful convictions occur frequently enough to justify major criminal justice system reform. Attitudes varied significantly across demographic groups as well. Additional findings and policy implications are discussed.