Journal of Criminal Justice and Law · Finding Prejudice: Ineffective Assistance of Counsel in Lee...

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August 2018

EditorKevin Buckler

Editorial Board

James Acker

Barbara Belbot

David Brody

Rolando del Carmen

Barry Feld

James Frank

Joy Pollock

Christopher Smith

Cassia Spohn

Michael Vaughn

Jeffery Walker

John Worrall

Marvin Zalman

Journal of Criminal Justice and Law

Volume 2Issue 1


(JCJL)

Contents

Jury Decision Making: Is the Devil in the Details? Observations of a Criminal Justice Professor from Inside the Jury RoomJulie Kiernan Coon 1

Undergraduate Student Knowledge and Opinion About Campus Carrying andOther Firearms LawsHeidi S. Bonner, Michele Stacey, and Megan Davidson 12

Eyewitness Identification: Are We Asking the Right Questions?M. Dyan McGuire 36

Finding Prejudice: Ineffective Assistance of Counsel in Lee v. United StatesMichelle M. Watson and Melanie K. Worsley 52

Elder Care in the United States: Filial Responsibility Laws, JudicialDecisions, and Enforcement IssuesSesha Kethineni and Gowtami Rajendran 69

Book Review: Paul Butler, “Chokehold: Policing Black Men”, The New Press (2017)Lee. E. Ross

Essay

___________________________________________________________________________ I School of Justice Studies, Roger Williams University, Bristol, Rhode Island, USA. Corresponding Author: Julie Kiernan Coon, School of Justice Studies, Roger Williams University, One Old Ferry Road, Bristol, RI 02809, USA E-mail: [email protected]

Julie Kiernan Coon I "Most of what goes on during deliberations in the 150,000-plus jury trials each year in the United States is shrouded in mystery.”1 Jury decision making and the process of deliberation continue to be of interest to criminal justice practitioners and academics. When I received a summons for jury duty, I was told by more than one colleague that the chances of an academic being selected to serve on a jury were slim. I wondered if having a PhD in criminal justice might serve as my “get out of jury duty free” card. When I was ultimately selected to serve as a juror in a criminal case, it was apparent that my degree did not prohibit me from serving, nor was it always obvious who would be dismissed from the panel.

My profession aside, my family connections to law enforcement (my father is a retired prosecutor and my grandfather was a New York City police sergeant) seemingly would make me an unlikely candidate for a jury. After being selected to serve on a jury in a felony assault case, I was somewhat intrigued by what was to come, yet at the same time in disbelief that the defense attorney had not struck me from the pool. Ultimately, the judge selected me as the jury foreperson, which allowed me to help guide the deliberation process.

To put the experience into context, this paper will first present highlights from the research literature about jury decision making. Second, observations about the jury selection process, along with details of the case, will be shared, including the stories told by the victim and the defendant. These two “down and out” men had similar histories in terms of unemployment, homelessness, and alcoholism. Yet they were perceived in drastically different ways by members of the jury. Finally, I will share what occurred in the

1 Cochran, D. Q. (2015). Malcom Gladwell and the art of trial advocacy: Getting the jury to the tipping

point. American Journal of Trial Advocacy, 38(2), 335-376.

Jury Decision Making: Is the Devil in the Details? Observations of a Criminal Justice Professor from Inside the Jury Room

Journal of Criminal Justice and Law Volume 2, Issue 1, pp. 1-10 (2018) ©University of Houston-Downtown

2 Julie Kiernan Coon

jury room and how what I observed connects to the research literature. It is hoped that both large-scale research projects and single case studies such as this will be informative for court officials and academics. Research on Jury Decision Making It is well documented that the vast majority of criminal cases in the United States that proceed through the system result in plea bargaining rather than trial. Nevertheless, the jury trial remains a critical component of our system of justice. According to Devine (2012, p. 6), an estimated 154,000 jury trials, nearly half of them trials for felony crimes, took place in 2006. Further, Devine (p. 8) claims that as of 2011, about 1,500 studies of juries had been published. For criminal cases that end in a trial, it is understood that the criminal charge is serious, the process is important, and the stakes are high on both sides. Who Is Being Studied? Scholars generally agree that the most significant early research was The Chicago Jury Project, highlighted in the work of Kalven and Zeisel (1966) comparing judicial and jury decisions for the same cases. This work is widely cited throughout the jury literature, with one major finding being that judges and juries were mostly in agreement in their verdicts, although exceptions were hardly rare. Later research attempted to replicate some aspects of this study comparing judge–jury agreement. For example, Eisenberg et al. (2005, p. 173) found a high rate of judge–jury verdict agreement (above 70%), although they explored in greater depth the role of the strength of evidence in decision making. Further, Gastwirth and Sinclair (2004) analyzed Kalven and Zeisel’s original data with more sophisticated models and found that disagreement between the judge and jury was more complex. Specifically, they found that disagreements depended on the relationships among a variety of factors, including seriousness of the crime, strength of the evidence, quality of the defense attorney, and prior record of the defendant (Gastwirth and Sinclair, 2004, p. 183). Later major studies include the Capital Jury Project and research conducted by the National Center for State Courts (as cited by Devine, Buddenbaum, Houp, Stolle, and Studebaker, 2007).

Although the importance of juries in our system of criminal justice is widely acknowledged, jury research that is based on the decision-making processes of mock jurors is often criticized as unrepresentative of actual jury deliberations (for a thorough review see Nunez, McCrea, and Culhane, 2011). It is clear that the research on jury deliberations has taken a number of different approaches. Bornstein (1999) argues that the numerous challenges encountered in studying actual jurors have resulted in the use of mock juries as the primary means of studying jury decision making. Nunez et al. also discuss how much of the research on jury decision making involves mock jurors, and they question whether using mock jurors is the best method to understand the process of deliberations. Further, they state that the research on mock juries has often been conducted with college students (who represent a convenience sample for academics studying jury decision making). Devine, Krouse, Cavanaugh, and Basora (2016) summarized the issue of reliance on college student samples: “Overreliance on studies of undergraduate students making noninteractive decisions about a fictional trial runs the risk of providing a misleading picture of how real juries make decisions. There is a need for more field research that complements and extends the laboratory research with mock jurors” (Devine et al., p. 671).

3 Journal of Criminal Justice and Law

Some investigators have attempted to expand the research on mock juries by including

residents of the larger community (Nunez et al., 2011). Interestingly, however, Breau and Brook (2007) compared mock jury studies that relied on students with studies that included nonstudents as jury members. They found that type of juror did not tend to alter the verdict. Models of Decision Making Devine et al. (2016, p. 670) summarized much of the research on mock juries and identified three possible variables to explain jury verdicts: evidentiary factors, extra-evidentiary factors, and the deliberation process. Evidentiary factors are aspects of the factual information presented during a trial, including the type, quality, and amount. Extra-evidentiary factors are those that should not be considered in decision making, such as the race and gender of the defendant. The deliberation process includes the style of the discussion that takes place, the individuals or subgroups that offer dissenting views, the number of votes taken, etc. Devine et al. (2016) found that the strength of the evidence had the greatest influence on participants, but that extra-evidentiary and deliberation factors might also influence verdicts. Earlier work by Devine et al. (2007, p. 300) found that juries did well in some aspects of deliberation but not others. Specifically, juries understood the instructions and reviewed the evidence, but deliberations did not always allow all members of the jury to be heard, and factions within the jury often developed. Recently, researchers have also begun to examine the role of implicit bias in jury decision making (see Elek and Hannaford-Agor, 2015).

According to Devine (2012), there are many different approaches to examining decision making, including some that focus on individual jurors and others that attempt to explain how juries as a group come to a consensus in their verdicts. Two of the models discussed by Devine seem consistent with my own observations and experience. One such model is the stochastic model, which Devine (2012, p. 25) explains as follows: “Jurors are assumed to sequentially process the evidence they encounter at trial, while extracting the evaluative implications along the way, but at some point a critical event occurs that halts the decision process.” Devine (2012) further explains that the “critical event” ranges from an important piece of evidence to more individual perceptions or feelings, such as being overwhelmed by the amount of information presented or simply feeling tired.

Pennington and Hastie (1992, p. 190) claimed, “The story organization facilitates evidence comprehension and enables jurors to reach a predeliberation verdict decision.” This is the model that seemed most consistent with my experience. As later described by Devine (2012, p. 26), the story model is based on the assumption that jurors develop their own narratives to make sense of evidence presented at trial that may be confusing, disjointed, and difficult to fully understand. Jurors must decide what information will be included as part of their own version of events, and what information will be disregarded (Devine, 2012). As I will discuss, the development of narratives among jury members was inevitable, but the prosecutor and defense attorney also played critical roles in how these stories were formed. The Case: Felony Assault Jury Selection Process Many people appeared highly motivated to avoid being selected. Some jurors spoke of family obligations (such as a prior commitment to help a family member move to Rhode


Island) that they felt should allow them to be dismissed from jury duty. As part of the voir dire process, we were asked a series of questions, including whether any of us had been convicted of a crime (one potential juror was removed because of an embezzlement conviction) and whether we had prior experiences with victimization (most of us had been victims of property crime). We were also asked about our past experiences with the police because there would be testimony from a patrol officer and detective.

When asked about encounters with the police, one juror shared a story about being pulled over by a police officer for running a red light. He stated he had informed the officer that the light was broken and would not turn green. The juror claimed the officer replied that the light was not broken and issued a citation. He concluded his story by announcing that all police were liars and he would believe the word of anyone over a cop. It seemed that this person was determined to be struck and was successful in achieving that goal.

We were also asked a series of questions about family and occupation. One potential juror was a retired police officer but had subsequently done investigative work for a public defender's office. The defense attorney asked him whether he felt he could be fair and impartial given his law enforcement background. The juror's response was, "Five years ago, I don't think I could have been fair, but now that I have been away from the job for a while, I have mellowed out considerably. I think doing 5 to 6 hours of yoga a day has definitely helped." The attorney responded, "Well, you do realize that if you are selected for this case, you may not have time for 5 to 6 hours of yoga a day." The defense attorney demonstrated his sense of humor and did not strike him.

The defense attorney also attempted to play a "gotcha game" with seemingly no winners or losers. He asked us, the potential jury members, to raise our hands if we had asked ourselves, "I wonder what this guy did?" Only one person raised her hand. The defense attorney then responded, "You do realize that the burden is on the state to prove my client guilty beyond a reasonable doubt. He does not have to speak at all in his defense." Her response was, "Oh yeah, I know, but I think it is natural to wonder." Despite her apparent bias against the defendant, and to my surprise, the defense attorney did not strike her from the jury pool. Two Stories in a Nutshell2

The victim’s story.3 Tom claimed he met the defendant, Robert, on the streets of Providence during “Occupy Providence” in the fall of 2011. According to Tom, the event was basically a 5-day drinking party for him, Robert, and others. After so many days of being intoxicated, Robert realized he must have lost his job as a short-order cook, and he asked Tom if he could crash at his place for a while. Tom felt sorry for Robert and agreed to let him live with him (along with another roommate named Dan, whom Tom thought of as a son, although they were not related). Robert lived at Tom’s apartment for several months before the night of the incident. During those months, Tom claimed that Robert did not work, cook, clean, or contribute to the household in any way. Tom said Robert simply sat around the house watching crime-related television shows, ate Tom’s food, and drank Tom’s liquor.

2 The trial included testimony from the first police officer on the scene, a detective, the victim, and the defendant. This article focuses primarily on the stories told by the victim and the defendant. 3 All names have been changed.


The night of the incident, Tom stated they were all drinking heavily and that he had

made dinner. He said that Robert was going on a rant about his son and ex-wife and was generally angry at the world. Tom was sitting in a recliner in the living room. Robert went into the kitchen and came out with a knife. Robert attempted to stab Tom in the chest, which Tom says he blocked with his right hand. (Note: The medical report and photos showed that Tom had a cut on his left hand. In addition, the detective had taken photos of Tom's abdomen showing numerous cuts and wounds, but it was never explained how he had sustained those wounds.) After Tom attempted to block the knife, Robert stabbed him in the arm (photos were shown of blood on the kitchen floor, and a deep-looking cut on Tom’s forearm). Tom ran to the kitchen to grab a towel to stop the bleeding and stated he had bled profusely because his blood was thinned by all the alcohol he had consumed.

The defendant’s story.4 According to Robert, the first time he met Tom was when he had woken up in Tom's apartment with a hangover. Robert realized that he must have lost his job and couldn’t really remember the last time he had shown up to work. He had previously been living in the garage at his brother’s house, and he thought his brother would be mad that he had lost his job as a short-order cook. Robert also thought his brother probably wouldn’t let him return because Robert was an alcoholic and drinking again.

Robert claimed he did not live with Tom for free. Although Robert acknowledged that he was unemployed, he said that on day 1 Tom had asked him if he received food stamps. When Robert said yes, Tom said he could stay there as long as he had food stamps because they could sell the food stamps and use the money to buy "booze." Robert claimed that while he lived there, he did some cooking and cleaning and brought the garbage to the curb for the entire apartment building.

The night of the incident, Robert claimed that Tom was having one of his “tizzy fits.” Tom was upset that Robert and Dan had refused to eat the dinner he had made. Robert and Dan were still drinking, and they never ate dinner until they were done drinking. As part of this fit, Tom said he was throwing the dinner away, but in actuality, had left the meal outside the apartment in the hallway.

Later that evening, Robert had finished drinking (he admitted to having three “giant, monster-size 7-Eleven cups,” each of which was half vodka and half water) and was hungry. He looked around the apartment for the food Tom had made and did not see it in the trash. Robert then looked in the hallway outside the apartment and saw the meal in a crockpot on the floor. He brought it back into the apartment, grabbed a plate and utensils, and went to the living room to eat it.

Robert sat down and added salt and pepper to the meal. According to Robert, when Tom saw him adding salt and pepper he felt insulted and became enraged. Tom told Robert, “Get out, get out of my house.” Robert claimed that Tom often told him and Dan to leave, and he thought that if he cleaned up, Tom would calm down after a while.

Robert got up from the recliner and picked up his plate, fork, and knife to bring them into the kitchen, at which point Tom grabbed him by the shoulder from behind. Robert stated he was twisted around, both Tom and Robert fell, and that is how Tom was stabbed. They were drunk and had recently moved the furniture around in the living room, which contributed to the confusion and the fall. Although Robert admitted that he did cut Tom, he claimed it was an accident. Robert further stated that if he had wanted to stab Tom intentionally he could have, but he had no reason to do so. The other roommate, Dan, did

4 All names have been changed.


not directly witness the incident but was in the apartment at the time and called 911. After the incident, Robert knew it “looked bad,” and because Tom was screaming, “You stabbed me, you stabbed me,” he waited around to tell the police his side of the story. Inside the Jury Room We had spent many hours together in the jury room but were unable to discuss the case until deliberations began on day 3. Going up the stairs to the jury room on day 2, one juror stated, "I've heard enough." This statement was made after he had heard only from the victim, patrol officer, and detective, and I was not sure what his comment meant. When we first entered the room to deliberate, it was chaotic, with the dominant personalities all talking at once and clearly excited to "get it done." As the jury foreperson, though, I felt responsible for making sure that each juror had the opportunity to share his or her thoughts about the testimony and other evidence, and for promoting an orderly discussion.

The likeability factor. It was clear early in the deliberations that many jurors had already formed strong opinions, often about matters that were irrelevant to the facts of the case. For example, one juror commented that although she didn't really like the prosecutor, she liked her outfits. Another juror commented that she didn't like the detective because she perceived him to be smirking when the defendant was testifying. Discussions regarding the likeability of everyone involved in the case seemed inescapable.

It was especially evident that many jurors had a strong dislike for the victim and distrusted him. One juror commented that the victim was "shady," and she could envision him throwing a "tizzy fit," as the defendant had claimed. I was surprised by how much the jury seemed to like and sympathize with the defendant but appeared to have nothing but contempt for the victim. Both the victim and the defendant had made poor choices in their lives, suffered from addiction and health problems, and looked much older than their years. A number of jurors commented that the victim did not make eye contact, which to them meant he was lying. The defendant, on the other hand, looked directly at us (several jurors noted that he seemed to make more eye contact with female jurors), which many jurors believed was an indication he was telling the truth. My response to these statements was, "So you don't think someone can look at you and lie to your face?" yet these types of comments seemed to be disregarded.

Another issue that was problematic for the victim was his prior criminal record. The victim's criminal history of welfare fraud seemed to provide an easy excuse for many jurors to dismiss his testimony as entirely false. The fact that we did not hear anything to suggest that the defendant had a criminal record boosted his credibility with most of the jurors. I reminded them that Tom's criminal history did not make him immune to being a victim, yet the jurors appeared to want to make sense of the story pretty quickly in a good guy/bad guy fashion. They also seemed uninterested when I pointed out that those with criminal records are often themselves at higher risk for victimization.

Missing from the story. A number of missing pieces in the case were problematic during the deliberations. First, the absence of Dan (the younger roommate) was unexplained, and this was a bit perplexing for the jury. There was a belief that if Dan's pseudo-dad had really been stabbed intentionally, Dan would have testified in the case. Additionally, the photograph taken by the detective showing numerous stab wounds on the victim's stomach was a problematic piece of evidence. We had been told that when Tom was making his statement at the police department after the incident, he had complained to the detective about his stomach hurting. The detective asked if he could lift his shirt and


subsequently documented numerous wounds all over Tom's abdomen. There was nothing in the victim's testimony to suggest he had injuries inflicted by Robert other than the cuts on his hand and forearm. The lack of explanation for how these wounds occurred seemed strange and created additional confusion about what had occurred on the night of the incident. The Verdict and Meeting With the Judge The defendant’s testimony did not convince me that he had stabbed the victim by accident, but the burden was not on the defense. Much of the victim's story did not ring true either. My perception was that both men seemed to be less than entirely truthful, were omitting important information, or possibly did not even really remember what had happened during the incident. After 2 hours of deliberating, we reached a verdict of not guilty. Although there was much about the case we did not agree upon, we did agree that the state had not proved its case beyond a reasonable doubt.

After the trial was over, the judge met with us. She would not say if she agreed with our decision, but she did want to thank us for our service and see if we had questions. We were told that the defendant did indeed have a criminal record, but that the prosecutor and defense attorney had agreed not to use this information because the offense had occurred many years ago. We also learned that both the prosecution and the defense had agreed not to reveal certain aspects of Tom and Robert’s relationship, which, when paired with some information we learned during the trial, implied they had a sexual relationship. Further, we were informed that the victim had a long history of anger issues and was currently in counseling. Lastly, when we asked the judge about the whereabouts of roommate Dan, she revealed that he was supposed to testify in the case but could not be located and was presumed homeless again. Lessons From the Jury Room Gladwell (2002, p. 132) wrote, “The lesson of stickiness is the same. There is a simple way to package information that, under the right circumstances, can make it irresistible. All you have to do is find it.”

It is important that each side tells a story that makes sense to jurors. The stories told by the victim and the defendant were both problematic. Numerous details and omissions and "gut instincts" were factors in the jury's decision in this case. Tom's version of the incident was difficult to believe because he was essentially saying that Robert was mad at other people and with no warning came out of the kitchen and tried to stab Tom. More importantly, that any person, let alone someone with a criminal history of welfare fraud, would allow someone to live in his home, eat his food, drink his liquor, watch television all day, and not contribute to the household in any way made no sense. People get some sort of benefit from their relationships with others. Although we did not know the extent of what the victim got from the defendant, a basic understanding of human interactions suggested that there was more to their relationship than was revealed during the trial.

The prosecutor and defense attorney apparently had numerous agreements about what information would not be revealed during the trial. A problem with these omissions was that neither story seemed plausible. When neither story is “sticky,” as described by Gladwell (2002), jurors will form their own narratives in a manner that makes sense to them, but that likely will be far different from the story the prosecution and defense thought they were telling. Further, the gaps in the story can contribute to jurors forming their own


stories before hearing all of the evidence. Prosecutors and defense attorneys should consider how these gaps will likely affect jurors' perceptions early in the trial.

The lack of eye contact contributed to discrediting the victim, whereas the defendant's consistent eye contact contributed to a sense of his trustworthiness on the part of many members of the jury. It is unknown if the prosecutor stressed to the victim the importance of making eye contact, but his unwillingness or inability to look at the jury damaged his credibility with several jurors. Further, the absence of information about the defendant's criminal record during the trial led some jurors to assume wrongly that he did not have a criminal past. It appeared that this omission put the defendant in an advantageous position with some members of the jury.

Cochran (2015, pp. 371–372) noted, “People have an unconscious aversion to being persuaded and resist when they feel someone is trying to sell something. The solution to this dilemma is to realize that people like their own ideas and, as a result, your goal in your opening statement is to tell your story in such a way that they want you to win.”

Although the prosecutor repeatedly emphasized in her opening and closing statements that the victim had "baggage," jurors may hold beliefs that victims and offenders are mutually exclusive groups. Further, as suggested by Cochran (2015), people do not want to feel as if someone is trying to convince them. The prosecutor’s repeated statements regarding the victim’s troubled past may have contributed to the jury feeling that she was trying too hard to sell the victim’s version of events. Perhaps instead of emphasizing the victim’s past, the prosecutor should have more generally made the jury aware that offenders often become victims.

Both the prosecutor and the defense attorney appeared to be trying hard to build rapport with the jury, yet I was somewhat surprised when most jurors connected better with the defense attorney. He clearly demonstrated a good sense of humor yet seemed less experienced, less articulate, and less passionate in his arguments than the prosecutor. The jury seemed to relate to him better, possibly because his performance was somewhat awkward at times and so may have seemed less rehearsed.

How the courtroom participants were dressed was noticed and discussed by some jurors. As stated earlier, the prosecutor’s outfits were very much appreciated by one juror. The prosecutor was very well dressed, but this did not seem to contribute to her likeability. In fact, her extremely polished appearance and speech may have made her less relatable to this jury. The defense attorney was not as stylish, nor as eloquent, but his dress and oratory abilities were never mentioned. It also made me wonder if this critique of the prosecutor was also because she was female. Regardless of the reasons for the apparent favoritism for the defense, it seems important that both sides adapt to the jury they have in front of them. Prosecutors and defense attorneys should continually look for cues about how the jury is responding to their case but should also be aware of how the jury perceives them and be willing to modify their approach accordingly.

The trial at times strongly resembled theater, with the performance of many of the courtroom participants judged throughout the trial. As stated earlier, one juror commented that she didn't like the detective because she perceived him to be smirking when the defendant was testifying. I did not share this perception and thought perhaps his expressions reflected his disbelief in the defendant's version of events. In addition, the victim’s lack of eye contact was associated with lying, at least according to some jurors. Attorneys should do their best to make sure that victims and witnesses understand they may be critically observed by the jury, both on and off the stand.


Devine et al. (2007, p. 273) posed this essential question about the jury system:

“What do criminal juries really do behind the closed door of the deliberation room? Is it what we hope and does it make a difference anyway?”

I had expected that I would feel a sense of satisfaction about the decision we made and that justice had been done, but I have yet to feel good about it. Although I feel it was the right verdict, the often petty and irrelevant comments made by my fellow jurors were discouraging. Many of these jurors had formed their narratives and seemed to have little to no interest in the deliberation process I tried to promote. It is hoped that this essay will serve as an example of what can happen behind the closed door of the jury room, and what factors may contribute to the development of jurors’ narratives of the case. Much of what was said in the jury room did not seem to affect our decision, yet somehow it seems as if we should aspire to something better for this important part of our criminal justice process. Lessons for the Classroom Beyond the story itself, there have been ways of revisiting this experience with my students. Through active participation in the classroom, students can often better identify the inherent problems with the case, without simply hearing it in narrative form. Activities such as “semiscripted” mini mock trials based on the case appear to have piqued student interest in the criminal justice system. Students tend to ask more questions about the missing pieces of the story and sometimes wonder why the trial happened at all. Further, students have generally embraced the opportunity to assume the roles of the courtroom participants, and each side has made its case to the jury. While the jury deliberates, I do not provide any input or answer questions, but I enjoy observing what happens during their discussions. Most of the time, my student mock juries reach the same verdict as the actual jury but have not consistently focused on the same aspects of the case. There were many frustrating and disappointing aspects of jury duty. The ability to continue to reflect on my “time served,” however, and create interactive classroom activities for my students has made me somewhat grateful for this (I hope) “once in a lifetime” experience. Declaration of Conflicting Interests The author declares no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author received no financial support with respect to the research, authorship, and/or publication of this article References Breau, D. L., & Brook, B. (2007). “Mock” mock juries: A field experiment on the ecological

validity of jury simulations.” Law & Psychology Review, 31, 77–92. Bornstein, B. H. (1999). The ecological validity of jury simulations: Is the jury still out? Law

and Human Behavior, 23(1), 75–91. Cochran, D. Q. (2015). Malcom Gladwell and the art of trial advocacy: Getting the jury to

the tipping point. American Journal of Trial Advocacy, 38(2), 335–376.


Devine, D. J., Buddenbaum, J., Houp, S., Stolle, D. P., & Studebaker, N. (2007).

Deliberation quality: A preliminary examination in criminal juries. Journal of Empirical Legal Studies, 4(2), 273–303.

Devine, D. J. (2012). Jury decision making: The state of the science. New York, NY: New York University Press.

Devine, D. J., Krouse, P. C., Cavanaugh, C. M., & Basora, J. C. (2016). Evidentiary, extraevidentiary, and deliberation process predictors of real jury verdicts. Law and Human Behavior, 40(6), 670–682.

Eisenberg, T., Hannaford-Agor, P. L., Hans, V. P., Waters, N. L., Munsterman, T., Schwab, S. J., & Wells, M. T. (2005). Judge-jury agreement in criminal cases: A partial replication of Kalven and Zeisel’s The American jury. Journal of Empirical Legal Studies, 2(1), 171–206.

Elek J. K., & Hannaford, P. (2015). Implicit bias and the American juror. Court Review, 51, 116–121. Retrieved from http://www.ncsc-jurystudies.org/~/media/Microsites/Files/CJS/What%20We%20Do/Elek%20%20Hannaford-Agor%202015%20-%20Implicit%20bias%20and%20the%20American%20juror.ashx

Gastwirth, J. L., & Sinclair, M. D. (2004). A re-examination of the 1966 Kalven–Zeisel study of judge–jury agreements and disagreements and their causes. Law, Probability and Risk, 3(3-4), 169–191.

Gladwell, M. (2002). The tipping point: How little things can make a big difference. New York, NY: Back Bay Books/Little, Brown and Company.

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Author Biography Julie Kiernan Coon is an associate professor of criminal justice in the School of Justice Studies at Roger Williams University, Bristol, Rhode Island. She earned a BA degree in economics from the State University of New York at Albany, and MS and PhD degrees in criminal justice from the University of Cincinnati, Cincinnati, Ohio. She has published in the areas of policing, school security, and crime prevention.

Article

___________________________________________________________________________ I Department of Criminal Justice, East Carolina University, Greenville, North Carolina, USA. 2 OMNI Institute, Denver, Colorado, USA. Corresponding Author: Heidi S. Bonner, Department of Criminal Justice, Thomas Harriot College of Arts and Sciences, East Carolina University, 240 Rivers Building, Greenville, NC 27858, USA Email: [email protected] The authors wish to extend their appreciation to the blind reviewers of the original manuscript for their comments, which were helpful during preparation of the final version of the manuscript.

Abstract House Bill 937, passed in North Carolina in 2013, modified the provisions associated with concealed carry permissions on college campuses so that concealed carry permit holders could lawfully possess firearms on campus if they were kept in a locked compartment in their vehicles. The present study sought to explore the knowledge and perceptions of firearm law among a sample of undergraduate college students at one public university in North Carolina in the semester following the change in carrying provisions. The findings showed that students were not knowledgeable about gun laws and tended to be relatively supportive of gun rights, although differences existed among students who owned a firearm. This study expands our understanding of the relationship between gun ownership and perceptions of firearm laws, as well as the link between these two areas and knowledge of gun laws, among college students. Keywords College students, firearms, guns, campus, gun rights, gun control

Introduction During the 2013 North Carolina legislative session, the passage of House Bill (HB) 937, “An Act to Amend State Firearm Laws,” effectively modified the provisions associated with concealed carry permissions on college campuses. Before HB 937, firearms were prohibited on campus, excluding

Undergraduate Student Knowledge and

Opinion About Campus Carrying and

Other Firearms Laws

Journal of Criminal Justice and LawVolume 2, Issue 1, pp. 11‐34 (2018)

©University of Houston‐Downtown

Heidi S. Bonner, I Michele Stacey, I and Megan Davidson 2

12 Heidi S. Bonner, Michele Stacey, and Megan Davidson

domiciles inhabited by faculty and staff. Since the passage of HB 937, however, concealed carry permit holders are allowed to possess firearms on campus provided they are kept in locked compartments in their vehicles (NC H937 Ch. SL 2013‐369).

North Carolina is not alone in the effort to modify state law to allow concealed carry permit holders to carry firearms on campus. High‐profile campus shootings, such as the one in 2007 that killed 33 people and injured 23 at Virginia Tech, the one in 2008 that killed 5 and injured 21 at Northern Illinois University, and the one in 2015 that killed 10 and injured 9 at Umpqua Community College, have compelled legislators to reconsider firearm provisions in their respective state statutes. Between the 2013 and 2014 legislative sessions, 33 states introduced bills allowing concealed carry on college campuses in some capacity (National Conference of State Legislatures, 2016). Eight states (Colorado, Idaho, Kansas, Mississippi, Oregon, Texas, Utah, and Wisconsin) now permit the carrying of concealed firearms on campus by permit holders. Some states, such as North Carolina, require permit holders to keep their firearms in their vehicles, whereas others allow concealed carry throughout a campus except in buildings that specifically prohibit firearms.

Given these recent legislative changes, the issue of firearms on college campuses is a topic that is currently garnering attention and generating controversy in the United States. Some research has found that Americans actually feel less safe as more people in their communities begin to carry guns (Hemenway, Azrael, and Miller, 2001). However, in a recent Gallup poll, 56% of respondents felt that the country would be safer if more Americans carried concealed weapons (Newport, 2015).1 Further, 66% of those 18 to 29 years of age and 74% of gun owners felt the country would be safer if more citizens carried concealed weapons. However, most Americans do not believe that guns should be allowed in certain areas, including college campuses (Hemenway et al., 2001). The current research expands on these prior studies.

The present study especially sought to explore the knowledge and perceptions of firearm law among a sample of undergraduate students at one public university in North Carolina. Relatively little research has examined the attitudes of college students toward firearms and firearms policy, and even less has examined the level of firearms policy knowledge among students (particularly those who own a firearm). Of particular interest for the current study was ascertaining whether knowledge of firearms is related to attitudes regarding gun control (restricting gun ownership and carrying) and gun rights (expanding gun ownership and carrying). Further, because attitudes toward gun control are related to firearms ownership (Wright and Marston, 1975), this research also investigated whether, among college students, owning a firearm influences knowledge of and attitudes toward firearms. Finally, this study undertook to compare criminal justice and non–criminal justice majors to determine if there are any meaningful differences between those interested in careers in the criminal justice system and those pursuing other professions. Existing research on college student knowledge of and attitudes toward firearms laws is very limited. Given the changing landscape of college campus carrying and other firearm‐related policies, this study is a timely contribution to the literature. The following research questions are addressed:

1. What are the general levels of firearms knowledge among undergraduate students? 2. Do students who possess a firearm have more knowledge of state gun laws?

1 The entire question was as follows: “Suppose more Americans were allowed to carry concealed weapons if they passed a criminal background check and training course. If more Americans carried concealed weapons, would the United States be safer or less safe?”


3. What is undergraduate student opinion of gun rights and gun control policy? 4. How is knowledge of gun laws associated with perceptions of gun control laws? 5. Do students who possess a firearm hold more favorable views of gun rights? 6. Do the knowledge and perceptions of criminal justice majors differ from those of non–

criminal justice majors?

Evolution of Campus Carry Laws The shooting at Virginia Tech in 2007, and a subsequent shooting at Northern Illinois University in 2008, created the impetus for states to re‐examine the debate over concealed weapons on campus (Bennett, Kraft, and Deborah, 2012; Patten, Thomas, and Wada, 2013). In most cases, such legislation seeks to give people the right to carry handguns on college campuses (Bennett et al., 2012). The basic rationales behind such changes in legislation are that college and university campuses are “soft targets” and an armed campus body serves as a deterrent – those seeking to commit acts of violence will find armed campuses less attractive (Patten et al., 2013) – and that legally armed citizens will be able to act appropriately during a shooting and reduce the level of harm (Bouffard, Nobles, Wells, and Cavanaugh, 2011). However, the deterrent effect of allowing gun carrying on campus is difficult to ascertain. Bouffard, Nobles, and Wells (2012) noted that if concealed weapons were allowed on campus and in classrooms, the actual number in any given classroom would be hard if not impossible to determine, and it would be difficult to predict the effect of a concealed weapon policy. The few studies conducted on perceptions of concealed carry and campus safety seem to refute the notion that most people would feel safer if there were more legally armed individuals on campus (Arrigo and Acheson, 2016). A study of faculty at three universities found that 94% did not support carrying concealed weapons on campus, and 97% would not carry a weapon if it were allowed (Thompson, Price, Dake, and Teeple, 2013). Further, a study of campus police chiefs found that 86% did not believe that the presence of firearms on campus would prevent homicide (Thompson, Price, Mrdjenovich, and Khubchandani, 2009).

The 10 public universities in Utah were the first to allow guns on campus; in fact, Utah state law prohibits legislation seeking to ban guns on campus (Stripling, 2009). Following high‐profile campus shootings, 17 states in 2008 attempted to enact legislation patterned after that of Utah (Bennett et al., 2012; McLelland and Frenkil, 2009), and as previously stated, 33 states as of 2014 had introduced bills that would allow concealed carry on college campuses. Currently, 18 states2 ban carrying a concealed weapon on a college campus (although some states, like North Carolina, allow students to bring firearms to campus but require permit holders to keep firearms in their vehicles), and 24 states3 leave the decision to ban or allow concealed carry weapons on campus to each college or university individually (National Conference of State Legislatures, 2016). As previously mentioned, eight states currently permit the carrying of concealed firearms throughout a campus by lawful permit holders.

2 California, Florida, Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, South Carolina, and Wyoming. 3 Alabama, Alaska, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Indiana, Iowa, Kentucky, Maine, Maryland, Minnesota, Montana, New Hampshire, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, Washington, and West Virginia. (Arkansas and Tennessee allow certain faculty members to carry weapons on campus, but these laws do not extend to students or the general public.)


Correlates of Gun Ownership and Carrying Currently, roughly 20% of American adults report owning a firearm (Smith and Son, 2015). Weapons ownership is disparate by region and has consistently been found to be concentrated in the South (Wright and Marston, 1975; Reed, 1972; Dixon and Lizotte, 1987; Brennan, Lizotte, and McDowall, 1993; Smith and Son, 2015). One study of regional ownership found that 60% of households in the South have guns, compared with one‐third of households in the Northeast (Toch and Lizotte, 1992). Disparate levels of gun ownership are particularly pronounced when it comes to shotguns (Erskine, 1972; Newton and Zimring, 1969; Tonso, 1982).

Brennan et al. (1993) detailed the cultural and structural factors that are proposed to account for higher rates of gun ownership in the South. Cultural factors include the following: the symbolic importance of guns (particularly shotguns) in Southern culture (Tonso, 1982); the existence of a sporting subculture that encourages the use of guns for sport (e.g., hunting, gun collecting, sport shooting), particularly in the rural South (Reed, 1972; O'Connor and Lizotte, 1978); and the existence of a subculture of violence that stems from the Southern defeat in the Civil War (Dixon and Lizotte, 1987) and results in an “honor culture” in which threats and insults are met with aggression (Greenberg, 1997; Wyatt‐Brown, 1996). Structural factors include demographic and economic conditions and are not the result of any socialization effect (Brennan et al., 1993).

Gun ownership is commonly reported in rural areas (Smith and Son, 2015), which is consistent with a sporting subculture. Support for a sporting subculture among legal gun owners was found in some early research (Lizotte and Bordua, 1980; Lizotte, Bordua, and White, 1981) and could be responsible for the disproportionate levels of gun ownership in the South compared with other regions (Brennan et al., 1993). More recent research determined that hunting status and gender have the greatest influence on gun ownership (Celinska, 2007). In particular, men were five times more likely than women to report gun ownership, and individuals who engaged in recreational hunting were more likely to own a gun (Celinska, 2007).

Similar support, however, has not been found for the Southern subculture of violence premise (Loftin and Hill, 1974; Doerner, 1978; Dixon and Lizotte, 1987; Copes, Kovandzic, Miller, and Williamson, 2014). Felson and Pare (2010) considered the effect of an honor culture in explaining regional carrying patterns, and they determined that although White Southerners were more likely to carry guns for protection than White Northerners, this difference was due to a broader gun culture, not an honor culture. Bankston, Thompson, Jenkins, and Forsyth (1990) also found that although those residing in a typical Southern cultural context were more likely to carry a gun for protection, carrying behavior was not related to a fear of crime. This finding lends support to a broader Southern gun culture as opposed to a Southern subculture of violence.

Relatively little research has examined gun ownership and carrying among college students. Weapon carrying in general is more prevalent among male students, with one study noting that 11% of male students and 4% of female students reported having carried a weapon on campus (Presley, Meilman, and Cashin, 1997). Nationwide, about 4% of college students had a working firearm at college. Of these, approximately half (47%) indicated that the reason they had a gun was for protection (Miller, Hemenway, and Wechsler, 2002). Students who have guns at school are more likely to live in regions in which handguns are more prevalent (Meilman, Leichliter, and Presley, 1998; Miller et al., 2002) and are more likely to be male, to be White, to live off campus,


and to live with a significant other (Miller et al., 2002). Students who own and/or carry a firearm are also more likely to engage in risky behavior, such as binge drinking and using illicit drugs (Meilman et al., 1998), driving while under the influence (Meilman et al., 1998; Miller et al., 2002), and having unprotected sex while under the influence (Miller et al., 2002). They are also more likely to be victims and perpetrators of physical and sexual violence at college (Meilman et al., 1998).

One study that examined the likelihood of carrying among college students found that students who were concerned about campus violence, and were less confident in campus police, were more likely to want to obtain a license and carry a handgun on campus. The same was true of White students, those who were criminal justice majors, and those who had previously been victimized (Bouffard et al., 2012). In a study comparing criminal justice majors with non–criminal justice majors, more criminal justice majors reported owning a gun (Payne and Riedel, 2002).

Other research has also demonstrated links among gun ownership, the threat of gun violence, and region. Miller et al. (2002) found that 76% of all firearm threats at college occurred in regions where the household handgun ownership rates were more than 20%. Students who attended college in a region where firearm ownership rates were high were significantly more likely than their counterparts in regions where firearm ownership rates were lower to report being a victim of a firearm threat (Miller et al., 2002).

Levels of gun ownership vary by region, and the reasons why people carry guns also vary by region. Some research has demonstrated evidence of a gun culture among Southern and Western Whites, and unsurprisingly, compared with White Northerners, White Southerners are more likely to carry guns for protection; these regional effects exist even when differences in threat are accounted for, supporting the idea of a gun culture among White Southerners (Felson and Pare, 2010). However, according to the PEW Research Center (2013), the primary reason for owning a firearm nationwide has shifted. In 1999, hunting was the most frequently reported reason for owning a firearm, whereas in 2013, nearly 50% of respondents cited protection as their primary reason for owning a firearm.

Perceptions of Guns and Gun Laws Gun control has been a source of debate since the 1960s, and public opinion on firearms regulation tends to be fairly stable (Smith, 2002). Individuals who own guns tend to be less supportive of gun control (True and Utter, 2002; Celinska, 2007), and according to one study, gun ownership is the strongest predictor of attitudes against gun control (Kleck, 1996). Political views, gender, and geographical location are also linked to support for gun control measures. Those who are conservative (Smith, 1980; Kleck, 1996; Celinska, 2007), male, and from rural areas (Smith, 1980; Kleck, 1996; Brennan et al., 1993) are more likely to oppose gun regulations, whereas those who identify with liberal political views, women, and urban residents are more likely to support gun control policies (Smith, 1980; Kleck, 1996; Patten et al., 2013).

However, relative support for or opposition to gun control depends on the policy. One study determined that most of the public is in favor of safety standards for new handguns, including childproofing, configuring devices that can be fired only by an authorized person, and implementing magazine safety features (devices that cannot be fired after the magazine or clip is removed and that are equipped with loaded chamber indicators) (Teret, Webster, and Vernick,


1999). This support held even among a subgroup of respondents who were gun owners. There also tends to be strong support, including among gun owners, for policies that prohibit people convicted of certain crimes from purchasing a firearm, and for policies that restrict illegal sales (e.g., tamper‐resistant serial numbers and limits on the number of handguns that can be purchased in a month) (Teret et al., 1999).

The general public also tends to support mandatory registration of handguns (Teret et al., 1999), although one study found that Southerners who own shotguns are the group most opposed to the registration of guns (Brennan et al., 1993). Southerners are also more likely to oppose permits (regardless of gun ownership) (Brennan et al., 1993). Relatively little research has been conducted pertaining to college student perceptions of gun control policies. A study that examined the attitudes of those in high school found that girls were significantly more likely to support restrictive gun policies, whereas those who lived in a home with a gun were less supportive of restrictive policies than those who lived in a home without a gun (Vittes, Sorenson, and Gilbert, 2003). However, most respondents believed that handguns should be licensed and registered, and that a criminal background check should be required for all persons buying a handgun (Vittes et al., 2003).

The few studies examining attitudes and perceptions on campus have found more support for gun control policies. One study that examined support for concealed carry on two campuses determined that most students, faculty, staff, and administrators opposed concealed carry. Further, respondents felt that such policies would decrease campus safety (Patten et al., 2013). A study of faculty at three universities determined that an overwhelming majority of respondents did not support carrying concealed weapons on campus (Thompson et al., 2013), and a study of student attitudes on campuses in two different states found much less support for carrying concealed weapons on campus than for carrying them off campus (Cavanaugh, Bouffard, Wells, & Nobles, 2012).

Bennett et al. (2012) surveyed faculty members at a Georgia university and found that most of them opposed concealed weapons on campus. However, support or opposition was influenced by gun ownership and political affiliation. In contrast, a more recent study that examined the opinions of 419 students at a university in the Midwest determined that 57% of respondents felt that professors should be allowed to carry registered handguns to the university (Lewis et al., 2016). Similarly, Verrecchia and Hendrix (2017), in their study of the opinions of undergraduates on two Eastern campuses, found that almost half of the respondents believed qualified faculty and students should be allowed to carry concealed weapons on campus. Like Bennett et al. (2012), Verrecchia and Hendrix (2017) found that gun ownership and political affiliation affected support for carrying. Specifically, White men who held conservative political views and who owned a gun were more likely to be in favor of student or faculty member carrying a concealed firearm on campus.

Research investigating differences among majors found that criminal justice majors were more opposed to gun control than non–criminal justice majors (Payne and Riedel, 2002). This same study also found that male students, those who were from rural areas, and those who reported owning a gun showed less support for gun control than those who did not own a gun. Given the paucity of research on perceptions and knowledge of gun laws on college campuses, especially given the increasing amount of legislation being introduced to support enhanced carrying among


students, the goal of the current study was to expand on such research by using a sample of students from a public university in North Carolina.

Methods The Student Opinion of Crime Risk (SOCR) Survey was a voluntary online survey of 4,500 undergraduate students age 18 and older who were attending a large public university in North Carolina in the spring of 2014. The undergraduate population of the university during the survey time frame (N=19,637) was 59% female, 70% White, and 16% Black; 5% of those of any race identified as Hispanic. Roughly 30% of the undergraduate students lived in on‐campus housing; the rest resided in university‐owned or private off‐campus housing. The university is located in a small city of fewer than 100,000 residents and is part of an urban area. The university has its own sworn police, and the Part I crime rate for the city in 2014 was 457.4 per 10,000 (FBI, 2015). Roughly 70% of the students were from North Carolina. Levels of gun ownership for the region are not available, but a 2002 national study based on the Behavioral Risk Factor Surveillance System (as far as we are aware, the most recent for which state‐level data are reported) concluded that 41% of households in North Carolina possessed a firearm (Okoro et al., 2005).

The survey was developed specifically for the current research. The items pertaining to fear of crime were derived from the 2004 Community Survey Final Report prepared for the Hillsborough County (Florida) Sheriff's Office by the University of South Florida (Hart, 2005). The 2004 survey was developed for a purpose similar to that of the current study and consisted of items similar to those used in studies of fear of crime (Gabriel and Greve, 2003). The fact‐based questions contained in the knowledge of firearms section were created from a summary of North Carolina firearm laws compiled by the North Carolina Department of Justice. The questions pertaining to perceptions of gun issues were derived from the Hamilton Youth and Guns Poll (Vittes et al., 2003) and the 1999 National Gun Policy Survey of the National Opinion Research Center (Smith, 2002). The questions contained in the section related to perceptions of guns on campus were original to the authors (refer to Appendix or Table 2). The survey, constructed and stored in Qualtrics, remained open for 6 weeks. Students who did not respond to the initial e‐mail invitation were sent two additional follow‐up reminders.

A random sample of 5,000 local (e.g., not distance education) undergraduate students was requested from the institutional planning office of the university. This initial sample included graduate students and students who commuted from outside the community within which the university is located. Because the survey pertained to perceptions of physical locations on campus and in the surrounding area, only students living on campus or within the larger community were included in the final random sample (N=4,500) of students invited to participate in the survey. Additionally, entry‐level criminal justice students were over‐represented to provide a comparison sample. Although little research has been conducted on potential differences between criminal justice majors and majors in other subjects, there is support for the hypothesis that criminal justice majors differ in their perceptions of gun control (Payne and Reidel, 2002). Further, research has shown that criminal justice majors are more likely to want to carry (Bouffard et al., 2012) or actually do carry (Payne and Riedel, 2002) a gun. Criminal justice students are more often exposed to crime and victimization topics than non‐majors, and it was believed that the knowledge obtained throughout their degree program might cause them to have different experiences and


form different views pertaining to the subject matter of the survey. However, for comparison purposes, it was necessary to keep the amount of knowledge about criminal justice–specific topics constant. Thus, only entry‐level majors were surveyed. The overall amount of knowledge of the majors and non‐majors responding was balanced, to offset the possibility that the students who had chosen a criminal justice major might hold views different from those of students majoring in other subjects.

Response Rate After those who did not fit the selection criteria had been filtered, a total of 4,500 e‐mails were sent out when the survey launched. As previously noted, students who did not participate in the study following the initial invitation were sent two reminder e‐mails asking them to participate. Although college students are more comfortable than other segments of the population with web‐based surveys, online surveys typically have lower response rates than paper‐based surveys. This is certainly a concern, and indeed, many students did not even open the e‐mail pertaining to the survey. Data collection was certainly limited by university guidelines that preclude offering any sort of incentive to students to increase the number of responses. Of the 4,500 students to whom e‐mails were sent, 485 completed some portion of the survey, a response rate of 11%. Because of missing data on several of the variables used in the analysis, the final sample included 401 students. Respondents who agreed to participate were generally in alignment with the undergraduate population of the university. The sample population was slightly more female (64% compared with 59%), less Black (10% compared with 16%), more White (77% compared with 70%), and slightly more Hispanic (6% compared with 5%) than the university population. Both a power analysis and a sample size analysis showed that this sample size was sufficient for statistical inference.

Measures A series of measures were examined to address the research questions. First, respondents were given 12 statements about current gun laws in the state of North Carolina and asked to indicate whether they thought that each statement was true of false. They could also specify that they did not know the correct answer. An additive index of the number of correct responses was created to measure gun knowledge. For each question, a correct response received 1 point; incorrect or “I don’t know” responses received no points. The highest score a respondent could achieve was 12, and the overall actual knowledge scores ranged from 0 to 11.

Second, respondents were asked whether they currently owned a firearm and, if so, the purpose for which they owned that firearm. Third, a series of questions were asked pertaining to perceptions of guns. Respondents were asked to rate these statements on a 5‐point Likert scale ranging from strongly oppose to strongly agree. Initial exploratory factor analysis indicated that the gun perception questions loaded onto two separate factors, and principal components analysis was used to combine these eight items into two measures of overall perceptions of guns. Using an eigenvalue cutoff of 1, the first factor – gun control – was retained (eigenvalue=1.619, α=0.764),


explaining 81% of the overall variance.4 This factor consisted of the two items that are theoretically consistent with gun control legislation (“high capacity magazines should be banned” and “ownership of assault‐weapons should be restricted”).

The second perception factor represented overall support for gun rights. This measure combined the remaining six perception questions.5 Using an eigenvalue cutoff of 1, the second factor retained (eigenvalue=3.714, α=0.872) explained 62% of the total variance. Respondents with higher values on this measure of overall perceptions of gun rights showed greater support for gun rights, whereas respondents with higher values on the perceptions of gun control measure showed more support for gun restrictions. Factor loadings and communalities are presented in the Appendix.

In addition to these primary measures of interest, several other respondent characteristics were examined to explore which elements affected perceptions of guns and gun control as well as knowledge of gun law. Research on gun control (Smith, 1980; Kleck, 1996) has shown that the demographic features (especially race and sex) of the respondent are important predictors of opinion. Thus, several demographic characteristics were examined, including sex (measured as male, with female as reference), race (White, with non‐White as reference), marital status (single or other), and age (measured with 18‐19 years as reference, 20‐21, 22‐23, and 24 or older). Non‐White racial categories were collapsed because of small sample sizes. Two additional questions that might help explain individual perceptions of guns were included – whether the respondent had ever been the victim of a crime and whether the respondent was an active drug or alcohol user. Victims of crime, especially burglary, have been found to be more likely than non‐victims to plan to purchase a gun (Kleck, Kovandzic, Saber, and Hauser, 2011). Respondents were asked whether they had been the victim of a property, violent, or sexual crime before or after coming to college. Although research on gun control has not examined victimization, victims are more likely to want to carry a gun (Bouffard et al., 2012). Likewise, given that victims experience many psychological consequences of their experience, it is possible that they will have strong opinions about gun control and gun rights policies. Research has also shown that drug use is a predictor of gun rights attitudes. To assess drug and excessive alcohol use, respondents were asked to indicate the number of times in the past 30 days they had used several types of drugs, including prescription drugs that were not prescribed for them, marijuana, recreational drugs, other drugs, and alcohol with the intention of getting drunk.6 Respondents who indicated using any of these drugs at least

4 Before exploratory factor analysis was conducted, tests were conducted to determine the factorability of the variables and reliability of the factors. Correlation coefficients were sufficiently large. Tests for multicollinearity indicated that this was not an issue. The Kaiser‐Meyer‐Olkin (KMO) Measure of Sampling Adequacy was .500. Bartlett’s Test of Sphericity was significant, indicating a patterned relationship. 5 Before exploratory factor analysis was conducted, tests were conducted to determine the factorability of the variables and reliability of the factors. Correlation coefficients were all sufficiently large. Tests for multicollinearity indicated that this was not an issue. The KMO Measure of Sampling Adequacy and the Anti‐image Correlation Matrix indicated that the data were suitable for exploratory factor analysis. The KMO Measure was .835. Bartlett’s Test of Sphericity was significant, indicating a patterned relationship. 6 The questions pertaining to alcohol use asked about the consumption of alcohol with the intention of getting drunk. Alcohol consumption was included in this measure for two reasons: Most of the students were under the legal drinking age of 21 years, and although some of the students were over the legal


once (whether alone or with others) were coded 1. Respondents who did not indicate using any of these drugs in the past 30 days were coded 0.

Finally, one additional area was examined that might affect a respondent’s perception of guns: fear of crime. Research on perceptions of guns has shown that fear of crime increases positive perceptions of guns (Holbert, Shah, and Kwak, 2004). Consistent with similar items used in studies of fear of crime (Gabriel and Greve, 2003) and measures modified to fit a university setting in prior literature (Hart, 2005), respondents were asked to indicate on a scale ranging from “not at all fearful” to “very fearful” how fearful they would be in a series of situations, including during the day or at night, where they live, in a non‐campus housing location, in the downtown area, or in other parts of the city. These questions resulted in a total of eight values. Using principal components analysis, all eight values loaded well on a single factor with an eigenvalue of 4.064 and a Cronbach’s alpha of 0.859.7

Analysis The characteristics of the sample and the items of interest to the current study were examined first. Univariate and bivariate analyses were conducted to examine the overall levels of gun knowledge, gun ownership, and perceptions of gun control and gun rights. Ordinary least squares regression models were used to address the questions pertaining to the relationships between the predictors and the respondents’ perceptions of guns.

Results

Summary of Sample for Regression Analysis For the regression analysis, the sample was limited to the 401 respondents who had completed the entire survey. A summary of the sample characteristics is presented in Table 1. On average, these 401 respondents answered 5 of the 12 questions about gun laws correctly, a rate consistent with that of the overall sample of 485 (before the elimination of missing data), for which the average was 4.5 of 12 questions answered correctly. Approximately 25% of the respondents indicated that they owned a firearm. The top reasons for owning a gun were protection/self‐defense (39%) and hunting (35%). Students also indicated that they owned guns for target shooting or sport (18%), collecting (1%), or other reasons (7%). The slight majority of students who owned a gun for protection mirrored the nationwide shift from hunting to protection as the primary reason for ownership (PEW Research Center, 2013) and echoes previous research assessing reasons for gun ownership among college students (Miller et al., 2002).

drinking age, excessive alcohol consumption may be an indicator of risk‐taking behavior consistent with the use of illicit drugs such as marijuana, cocaine, and heroin. 7 Before exploratory factor analysis was conducted, tests were conducted to determine the factorability of the variables and reliability of the factors. Correlation coefficients were all sufficiently large. Tests for multicollinearity indicated that this was not an issue. The Kaiser‐Meyer‐Olkin (KMO) Measure of Sampling Adequacy and the Anti‐image Correlation Matrix indicated that the data were suitable for exploratory factor analysis. The KMO Measure was .697. Bartlett’s Test of Sphericity was significant, indicating a patterned relationship.


The sample was mostly female (66% female compared with 34% male). The racial makeup of the sample was nearly 80% White and was 11% Black, with the remainder comprising other racial minorities. The sample was also heavily non‐Hispanic, with only 5% of respondents indicating


Hispanic heritage. In regard to age breakdown, the sample consisted primarily of students of typical college age (i.e., 18‐22 years); roughly 13% of the sample were 24 years of age or older. Many of the respondents in the sample were either single (51%) or dating (42%), and many had never been the victim of a crime; only 35% of the sample indicated any form of victimization. Approximately 19% of the sample were criminal justice students. Finally, 57% of the sample self‐identified as active drug users, indicating that they had used an illicit drug (including excessive alcohol) in the past 30 days.

Student Knowledge of North Carolina Gun Laws Of particular interest was the assessment of student knowledge of North Carolina gun law, especially in light of the 2013 legislative changes that affected gun policies on university campuses. Students were asked a series of questions to determine their understanding of North Carolina gun law (as noted previously, the vast majority of respondents were from North Carolina). Table 2 summarizes the responses. Shaded boxes indicate the correct responses.


As indicated in Table 2, many respondents did not know the answer to questions related to

North Carolina gun law. For some questions, more than half of the respondents selected “I don’t know” as a response. The responses also indicate some confusion over existing gun law in North Carolina. For example, nearly 9% of respondents believed that North Carolina has a complete ban on assault rifles, and almost 13% believed that firearms training is not required before one can obtain a concealed carry permit. Additionally, 14% of the respondents believed it is unlawful to carry a concealed weapon in the state, and almost 11% believed that the 2013 changes in North Carolina gun laws mean that concealed carry permit holders may carry their weapons to class on a college campus.

An additive index based on the number of correct responses was created to determine overall level of knowledge about North Carolina gun law. Of the respondents, 19% either indicated “I don’t know” or answered incorrectly for all statements related to North Carolina gun law. Roughly 41% answered between 1 and 6 questions correctly, and the remaining 40% answered between 7 and 11 questions correctly. No respondent correctly answered all 12 questions.

Ascertaining the degree of knowledge about gun law in general may have been of limited value because many of the students responding to the survey did not own a firearm. However, determining the degree of knowledge among students who reported being gun owners was important. Nearly 65% of gun owners responded correctly to between 8 and 12 statements, and an additional 25% responded correctly to 6 or 7 statements. A t‐test was used to determine whether the relationship between gun ownership and knowledge was significant, and the gun owners had significantly higher scores on the total gun knowledge variable (t=–10.5). To further examine the relationship between gun ownership and gun knowledge, a negative binomial regression model was used that included the gun control and gun rights outcomes as predictors, along with the controls. The results provided further support that gun owners have a greater knowledge of gun laws, and that those who are more supportive of gun rights are more knowledgeable.

Student Opinion of Gun Policy As noted, respondents were asked a series of questions related to their opinions about gun ownership, including whether ownership should be restricted in certain ways. Students were also asked about current and potential gun policies related to ownership, including whether someone should undergo a background check before owning a gun, whether someone should undergo a psychiatric evaluation before owning a gun, and whether an interview with a loved one should be required before a person is allowed to own a gun. Finally, students were also asked if highly publicized cases influenced their perceptions of gun control laws.

About 82% of the students agreed or strongly agreed that Americans should have the right to own firearms, and 74% felt the same about citizens being able to use deadly force to defend their homes. There were 78% who indicated that they supported the recreational use of firearms, and 50% agreed or strongly agreed that citizens should be able to carry a firearm openly. Roughly 47% of the respondents favored restricting the ownership of assault weapons, and roughly 34% favored banning high‐capacity magazines. About one‐quarter of the respondents felt that students and faculty should be permitted to carry firearms on campus, and nearly 46% felt that students and


faculty should be permitted to conceal their firearms in their vehicles on campuses (this is what the new law allowed at the time of the survey). Results are presented in Table 3.

Respondents were also asked about the types of things that should be required before an

individual can own a gun. More than 97% of students agreed that a background check should be required. However, this is not surprising because background checks are already required for handgun ownership. A substantial majority of respondents (88%) also believed that individuals should undergo a psychiatric evaluation before owning a gun. However, only 42% of respondents agreed that an interview with a loved one should be required as a condition of gun ownership.

Students were also asked whether highly publicized cases, such as Newtown, had influenced their perception of gun laws; nearly 60% stated that they had. Students who agreed that their perceptions had been influenced also had an opportunity to indicate how, and content analysis was used to assess how opinions had been influenced. A majority of the respondents stated that high‐profile tragedies such as Newtown indicated a need for greater gun control. Statements revealed support for better control over who is allowed to own a gun, including the need for more comprehensive background checks and better ways to screen for mental illness. Students made statements such as “it should be much harder to obtain guns” and “stricter requirements are necessary before gun ownership.” Some students, however, stated that tragedies involving firearms convinced them of the need for expanded gun rights, noting, for example, that citizens


“should be allowed to take concealed weapons wherever they go to protect themselves and others.” Others stated the belief that shootings in predominantly gun‐free zones (particularly schools) could be prevented if teachers and administrators were allowed to carry weapons in class.

Predictors of Perception of Guns and Gun Control To examine further the relationships between respondent characteristics and perceptions of guns, two separate regression models were conducted for each of the two perception factors (gun rights and gun control) discussed earlier. Table 4 presents the results of these models.

The gun control model, in which gun control is the outcome, suggests that several characteristics may play a role in determining whether a person is for or against the control of guns, in particular large‐capacity magazines and assault rifles. Higher values on the gun control measure indicate greater support for gun restrictions. As such, perceptions of gun rights were inversely related to perceptions of gun control. In other words, respondents who showed greater support for gun rights were less likely to support gun control (b=–.43). Hispanic respondents were less likely to support gun control (b=–.43). Likewise, gun owners were less likely to support gun control (b=–.27). Neither fear of crime nor victimization was significantly related to perceptions of gun control.

To investigate further the findings from the gun control model, additional analyses (not tabled) were conducted to determine whether the reason for gun ownership was significantly related to gun law knowledge and perceptions of guns. An analysis of variance (ANOVA) was used to determine the existence of a relationship, and the results indicated the absence of a significant relationship between the reason for gun ownership and knowledge or perception of gun control. However, this analysis also indicated a significant relationship between the reason for gun ownership and gun rights. A regression analysis was run to examine this relationship further, including the reasons for gun ownership as a predictor of perceptions of gun rights. The results of this analysis indicated that compared with those who owned a gun for protection, those who owned a gun as a collector’s item were significantly more likely to favor gun rights.

The gun rights model in Table 4 presents the results of the regression predicting views of gun rights. In line with the previous model, respondents with more lenient viewpoints on gun control were significantly more likely to favor gun rights (b=.33). Respondents with greater gun knowledge (b=.06) and those who owned a gun (b=.49) were also more likely to favor gun rights, as were those who reported being active drug/alcohol users (b=.19). Finally, unlike in the gun control model, in which only one of the individual characteristics was significantly related to perceptions of gun control, both male respondents (b=.25) and White respondents (b=.33) were significantly more likely to favor gun rights, whereas single respondents (b=–.18) were significantly less likely to favor gun rights. As in the gun control model, all other measures in the gun rights model, including fear of crime and victimization, were not significantly associated with respondents’ views.


Criminal Justice Majors Criminal justice majors were oversampled for this project, to allow an assessment of whether the criminal justice majors were different in terms of their perceptions of gun control and gun rights. Criminal justice students differed from other students in characteristics that were shown to have a significant effect on perceptions of gun rights and gun control. For instance, criminal justice majors were more likely to be White in the sample (χ2=11.43, df=1, p<.05). Likewise, criminal justice majors were more likely than students with other majors to have consumed drugs or alcohol in the past 30 days (χ2=16.27, df=1, p<.05). However, further examination revealed that criminal justice students reported consuming more alcohol than their peers, whereas they


reported less drug use. Criminal justice majors, on the other hand, did not differ from their peers in gun ownership (χ2=0.0003, df=1) or gun knowledge (χ2=8.497, df=11). Within the regression models, being a criminal justice major was not significantly related to perceptions of gun control; however, the criminal justice major variable was significant and negative in the gun rights model (b=–0.212), indicating that students with other majors believe in gun rights more strongly than criminal justice students.

Supplemental Analyses Not in a Table The initial analysis suggested that one of the strongest predictors of perception of gun control was perception of gun rights and that one of the strongest predictors of perception of gun rights was perception of gun control. To assess whether this analysis introduced bias in the results of the models, the regression analyses were conducted without the alternative dependent variable. Without the gun rights variable, the gun control model changed in one important way. In the original model, knowledge of gun laws did not quite reach significance. However, when the gun rights variable was not included as a predictor, knowledge of gun laws became significant and positive. This further suggests the existence of a relationship between knowledge of gun laws and perceptions of gun rights. Gun ownership was still significant and positive. The R2 statistic was reduced to .21, and the F statistic, although still significant, was reduced to 7.31, suggesting that the variable perception of gun rights was an important predictor of perception of gun control.

Removing the gun control variable from the gun rights model did not change the results considerably. Gun knowledge and gun ownership remained significant and positive. Males and Whites were also more likely to support gun rights. The F statistic was reduced to 21.19 and remained significant. The R2 statistic was reduced to .39. There was one noteworthy change. Specifically, when gun control was removed from the model, drug users were significantly more likely to support gun rights (B=.20; SE=.09; t=2.22). Finally, given the significant relationship found between gun ownership and gun knowledge, it is possible that the relationship between gun knowledge and the perceptions of gun control and gun rights depended on whether the respondent owned a gun. To examine this possibility, two analyses were conducted. First, the models were examined with and without the gun ownership measure. Second, the models were run with inclusion of an interaction term for the gun knowledge and gun owner measures. Neither analysis supported the conclusion that the relationship between knowledge and perceptions depended on gun ownership.

Discussion Research on perceptions of guns has largely focused on samples of the general population, rather than samples of college students. However, the change in North Carolina gun laws that occurred in 2013 specifically allows secured weapons in vehicles on college campuses in the state. The goal of this research was to assess the perceptions and knowledge of guns by college students in the state in the wake of this legal change.

Overall, respondents were not very knowledgeable about North Carolina gun law, including the specific changes that occurred in 2013. Public universities in North Carolina, including the one used for the current study, provided students with a large amount of information regarding carrying law, particularly because it is legal to carry across the state, but not on college campuses.


A heavy information campaign at the university used for the study took place before the 2013 change regarding carrying on college campuses, and the results here indicate that students are not fully aware of gun law in the state. This finding has a couple of potential implications.

First, students on the study campus who are not fully cognizant of the law face potential legal ramifications in both the student conduct system and the broader criminal justice system. This is especially important given that gun owners, although significantly more knowledgeable than non‐gun owners, did not display perfect knowledge of state gun law. Specifically, of those respondents who believed that the changes in the 2013 gun law meant concealed carry permit holders could carry their weapons on campus, 27% were gun owners. This suggests that more training of gun owners is necessary, particularly as the threshold for training in North Carolina is already quite low (successful completion of a firearms training course is required only when a permit to carry a concealed weapon is obtained). Second, these findings have implications for other states planning similar changes on college campuses because the concerted public information effort seems to have had little effect on student knowledge on the study campus. Students are often inundated with information, and it is important that campus administrators find effective means to communicate with students (particularly the segment – gun owners – most affected by changes to gun law on campus).

Overall, respondents were very supportive of the right to own a firearm. However, only about one‐quarter of respondents felt that students and faculty should be permitted to carry firearms on campus. This is consistent with the results of previous research, which determined that college populations are typically not supportive of carrying on campus (Patten et al., 2013; Cavanaugh et al., 2012; Thompson et al., 2013; Thompson, et al., 2009). Oftentimes, such policy provisions are put in place without a consideration of the feedback of the populations affected. This point was made by Cavanaugh et al. (2012), who found that such policy changes may not increase students’ feelings of safety on campus. In North Carolina, the police chiefs at all 16 campuses in the University of North Carolina system opposed the change in the law pertaining to college campuses, citing a fear of increased car break‐ins and gun violence (The Associated Press, 2013). Other states enacting such provisions might consider the unique nature of a campus environment and seek the opinions of those most affected by policy changes (Arrigo and Acheson, 2016). Fewer than half of respondents favored restriction of ownership of assault weapons or banning high‐capacity magazines. In one recent study of college students at a Midwestern university, 54% of respondents agreed that the purchase of military assault weapons should be banned (Lewis et al., 2016), so the student sample in this study was more conservative in terms of gun control views. Regional differences may account for this dissimilarity, and future research should seek to examine campus viewpoints across regions.

The findings from the regression analysis are consistent with findings from prior research. One of the stronger relationships in the regression model was that respondents who support gun rights are more lenient toward gun control, whereas respondents who are less supportive of gun rights are more tolerant of gun control. This is not surprising, given that the university used for the current study is in the South, a region that historically has had a strong gun sporting subculture and tends to have supportive attitudes regarding gun rights (Reed, 1972; O'Connor and Lizotte, 1978; Lizotte and Bordua, 1980; Lizotte et al., 1981; Brennan et al., 1993; Felson and Pare, 2010). Research on the attitudes and perceptions of undergraduate students regarding gun law is still


somewhat limited, and the findings are driven by region of the country and homogeneity of the student body (in the current case, largely in‐state students). As noted previously, future research should compare attitudes and perceptions by examining a wider variety of student populations.

Considering criminal justice majors separately from students in other disciplines is important because it is necessary to determine if those seeking a career in the criminal justice system are different from other students (Bouffard et al., 2012). There are a number of reasons to think that they might be – certainly there is an inclination to think of criminal justice students as more conservative than other students (Payne and Riedel, 2002). The percentage of criminal justice students in our sample who were White was significantly higher than the percentage among their peers, a characteristic that has been associated with a higher level of gun ownership and greater support for gun rights (Bouffard et al., 2012). Criminal justice students in our sample, however, did not differ from their peers in terms of level of gun ownership or knowledge of gun laws. This finding differs from those of Payne and Riedel (2002) and Bouffard et al. (2012), who found that criminal justice students were more likely to own a gun and more likely to obtain a concealed carry license, respectively.

One surprising finding was that criminal justice majors were significantly less likely to support gun rights than non–criminal justice majors, but there was no significant difference in terms of perceptions of gun control. This runs counter to prior research. For example, Payne and Riedel (2002) found that criminal justice majors were more opposed than non–criminal justice majors to gun control. Bouffard et al. (2012) determined that criminal justice majors, particularly those interested in law enforcement careers, may go through a shift in attitudes during their time in college. Specifically, students may start with a “fighting‐crime” orientation and transition to a “maintaining‐order” outlook as they near graduation (Bouffard et al., 2012). This is certainly plausible, but what is interesting about the current finding regarding perceptions of gun rights is that entry‐level criminal justice students (as opposed to all criminal justice students) were oversampled. Given the prior research (Payne and Riedel, 2002; Bouffard et al., 2012), it is expected that entry‐level criminal justice students in this study would have had more conservative views of gun control, and more permissive views of gun rights, compared with non–criminal justice majors. The fact that this was not the case highlights the need for more research on the perceptions of criminal justice majors and college students more broadly – existing research is limited. Additionally, future research on criminal justice majors should consider change in views over the course of study for the degree. Payne and Riedel (2002) considered that those who plan to work in the criminal justice system may be in favor of gun control (and less permissive of gun rights) because fewer firearms in the hands of offenders would mean increased safety on the job. However, this has not been empirically tested, and it would be interesting to see if students planning to work in the criminal justice system hold those views at the start of the major (as they appeared to do in this study) and if (and how) they change over time.

It is important to note that the response rate and sample size for the analyses were major limitations. Although we made every effort to secure more responses, we were precluded from offering any incentive for participation. This likely hampered our data collection efforts significantly. Given that prior research (Celinski, 2007; Kleck, 1996; Miller et al., 2002) has shown that males, especially White males, are more likely to own firearms and support gun rights, it is possible that the undersampling of this population attenuated the effects seen in the analysis.


Future research conducted on this population (students of college age) should explore other forms of data collection and should also incorporate nominal incentives for participation.

In terms of overall level of gun knowledge, misunderstanding by gun owners regarding existing law may be explained by the type of firearm respondents owned (e.g., those who own a shotgun or rifle do not need a permit, nor are they likely to go through a concealed carry course). However, data on the type of firearm owned were not collected. This is a limitation that should be addressed in future research because reason for ownership is not a perfect proxy for type of ownership.

It was not possible to conduct a before‐and‐after examination of the changes in North Carolina to see if student opinion changed appreciably following the 2013 gun law change. As campus carrying policies continue to change, it would be informative to examine if student attitudes remain stable when statewide changes regarding carrying policies affect campus environments. Overall, the findings from this study are consistent with prior research on perceptions of firearms, especially perceptions on college campuses. However, this study expands our understanding of the relationship between gun ownership and perceptions of firearm laws, as well as the link between these two areas and knowledge of gun laws. Further research is needed to understand fully perceptions of guns and gun laws on college campuses. Declaration of Conflicting Interests The authors declare no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The authors received no financial support with respect to the research, authorship, and/or publication of this article.

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Authors’ Biographies Heidi S. Bonner, PhD, is an Assistant Professor in the Department of Criminal Justice at East Carolina University, and a Research Fellow at the John F. Finn Institute for Public Safety. Her research focuses on the administration of the criminal justice process, with an emphasis on police decision making and the effects of policies and programs on police operations, including intervention in domestic violence. Michele Stacey, PhD, is an Assistant Professor in the Department of Criminal Justice at East Carolina University. Her research focuses on the social control and victimization of minority groups, with a specific focus on hate crime. Megan Davidson, PhD, is a Senior Researcher at OMNI Institute. She was an Assistant Professor in the Department of Criminal Justice at East Carolina University prior to joining OMNI in 2016. Her research focuses on evaluation of substance use prevention, mental health, and criminal justice policies.

Article

___________________________________________________________________________ I College for Public Health and Social Justice, Criminology and Criminal Justice Program, Saint Louis University, Saint Louis, Missouri, USA Corresponding Author: M. Dyan McGuire, College for Public Health and Social Justice, Criminology and Criminal Justice Program, Saint Louis University, Saint Louis, MO, 63103, USA E-mail: [email protected] The author wishes to express her appreciation to the blind reviewers of the original manuscript for their comments, which were helpful during preparation of the final version of the manuscript.

M. Dyan McGuire I

Abstract As courts struggle with issues concerning the admissibility of eyewitness identification, reliability has emerged as a touchstone of due process analysis. Factors commonly considered by courts in assessing reliability include the witness’s opportunity to view the criminal at the time of the crime, the witness’s degree of attention to the crime, the accuracy of any prior description of the criminal, the level of certainty demonstrated at the confrontation, and the amount of time between the crime and the confrontation. Unfortunately, the empirical record, including the results of this study, indicates that these factors do not have a strong or consistent ability to discriminate between accurate, and thus reliable, identifications and those that are in error. The policy implications of the courts’ continued reliance on an inadequate tool for assessing reliability are evaluated, and policy reforms are discussed. Keywords Eyewitness, identification, admissibility, courts, Biggers, Manson Although eyewitness identification by a disinterested witness was once regarded as nearly dispositive, most criminal justice practitioners and even the general public have come to regard such evidence with some degree of skepticism. The Innocence Project, a well-known advocacy group, works to free the wrongly convicted and keeps a running total of the number of people it has helped to free. As of this writing, the Innocence project has used DNA to exonerate about 350 people, most of whom were wrongly convicted because, at least in part, of an incorrect eyewitness identification (Innocence Project, 2016).

Eyewitness Identification: Are We Asking the Right Questions?

Journal of Criminal Justice and Law Volume 2, Issue 1, pp. 35-50 (2018)

©University of Houston-Downtown

36 M. Dyan McGuire

Similarly, the National Registry of Exonerations suggests that misidentification has played a role in at least 620 cases of wrongful conviction (National Registry, 2017).

Eyewitnesses can be wrong for any number of reasons. Occasionally, an eyewitness deliberately lies. These witnesses may be the actual perpetrators and are trying to throw suspicion on someone else, or they may hold a grudge of some kind against the defendant or another involved party. Unfortunately, there is not much the courts can do to stop deliberately dishonest witnesses from lying other than to rely on cross-examination to cast doubt on their account and hope that other actors within the criminal justice system will be able to gather sufficient evidence to refute their account, such that no honest prosecutor will want to use their testimony. Although deliberate deception is always a possibility, it seems to be comparatively rare, and most eyewitnesses who misidentify a suspect are probably doing so unintentionally.

Unintentional misidentification can also occur for a variety of reasons, but the vast body of research produced in recent years has shown that at least some unintentional misidentifications are caused by the way in which law enforcement handles identification procedures (National Academy of Sciences, 2014).1 For example, presenting witnesses in a simultaneous rather than a serial fashion appears to increase the risk for misidentification, especially when the actual perpetrator is not present in the lineup (Steblay, Dysart, and Wells, 2011; Wells, Steblay, and Dysart, 2015). In simultaneous procedures, witnesses view several photos or people at the same time. While looking at the entire group, witnesses are asked to identify the perpetrator. When a witness is given a closed set of alternatives, as in this situation, a psychological process known as relative judgment makes it likely that the witness will feel “forced” to make a choice from among the options presented. As a consequence, witnesses tend to select the alternative that looks the most like their memory of the perpetrator, rather than to make no selection at all (Wells, 2006). With serial procedures, by contrast, witnesses view photographs or people one at a time and are asked whether that person is the perpetrator or not before another choice is presented. This process is meant to encourage individual assessment and to prevent the relative judgment process from tainting identifications.

Reusing the same witness with the same suspect in multiple identification procedures also enhances the chance that the witness will select that suspect, regardless of that suspect’s actual guilt (Steblay, 2011; Steblay, Dietrich, Ryan, Raczynski, and James, 2011). The person may look familiar, not from the crime but from the previous lineup, or the witness may recognize that all the fillers have changed and thus conclude that the correct choice is the repeated suspect. Having a detective who knows the identity of the suspect administer the lineup may also result in misidentification due to inadvertent cueing of the witness and is also not recommended (Garrioch and Brimacombe, 2001; Steblay, Wells, and Douglass, 2014).

Failing to warn witnesses explicitly that the perpetrator may be absent from the lineup or photo array is another practice that increases the odds of misidentification (Malpass and Devine, 1981). The National Institute of Justice (1999) recommends that witnesses be told explicitly that the perpetrator may be absent from the lineup, that it is just as important to clear the innocent as it is to identify the guilty, and that work on the case will continue even

1 For a fuller discussion of how police can taint an identification through poor procedures please refer to McGuire, M. D., Kenny, T., and Grabic, A. (2015).


if no identification is made. Such warnings are beneficial and unlikely to affect identifications adversely in any way.

Police can also mitigate the risk for misidentification by obtaining a certainty statement. This is done by asking a witness immediately after an identification is made to state how certain he or she is about the identification. The administrator then records the verbatim response of the witness or, preferably, videotapes it. Research has shown that a witness’s recollection of the circumstances of an identification changes and that certainty tends to harden over time (Steblay et al., 2014; Wells, 2006). Changes in a witness’s level of certainty are important to jurors’ assessments of credibility (Bradfield and McQuiston, 2004), but without a certainty statement, innocent defendants struggle to overcome an erroneous eyewitness identification through cross-examination or other means.

The Department of Justice (DOJ), attempting to address eyewitness identification problems, recently issued a memorandum establishing policies for DOJ employees. Chief among the reforms contained in the new policy are requirements that absent exceptional circumstances, DOJ employees use blind identification procedures, take immediate post-identification certainty statements, and record identification procedures by video or audio means or with a verbatim transcript (DOJ, 2017). This policy is, of course, not binding on the states. The Courts and Eyewitness Identification Although the above-referenced research suggests that various attributes of the identification process interact with psychological processes within the human mind to affect the accuracy of eyewitness identifications adversely, the courts have not really relied on this research in crafting legal rules that govern admissibility. Instead, the legal inquiry, the subject of this study, tends to focus on narrow aspects of a particular witness’s view and recall in determining whether to admit an identification. In so doing, the courts have primarily relied on due process as their constitutional guidepost.

Early on, the Supreme Court concluded it was a violation of due process for the state to use unreliable eyewitness evidence against the accused. For example, in Foster v. California (1969), a case involving the late-night robbery of a Western Union office, the police placed the defendant in a lineup with two other men who were at least 6 inches shorter than he was. The defendant was also wearing a leather jacket similar to the one the manager said he had seen underneath the coveralls worn by the robber. After viewing the lineup, the manager opined that the defendant could be the robber, but he was not sure. The manager asked to speak to the defendant, and the police brought the defendant into an office and sat him across the table from the manager, who despite the proximity remained unsure.

The police asked the manager to participate in a second lineup a week or so later. In that lineup, the defendant was placed among five other men, none of whom had been in the first lineup. This process finally convinced the manager that the defendant was the man who had robbed his office. Recognizing that suggestive lineup procedures and repeated exposure might well induce an erroneous identification, the Supreme Court found that using this identification against Foster amounted to a denial of due process and reversed his conviction (Foster v. California, 1969).

Although the Court was clear that suggestive identification procedures could be sufficient to support a successful due process claim, they declined to find that suggestiveness per se was a basis for suppressing an identification. The Court revisited

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the issue in Neil v. Biggers (1972), a case involving a woman who was abducted from her home and raped at knifepoint in nearby woods. “On several occasions over the course of the next seven months, she viewed suspects in her home or at the police station, some in lineups and others in showups, and was shown between 30 and 40 photographs. She told the police that a man pictured in one of the photographs had features similar to those of her assailant but identified none of the suspects” (Neil v. Biggers, 1972, pp. 194–195).

When she was later summoned to the police station to see if she could identify the defendant, who was being held on other charges, she walked past him and had the police officers tell him to say "shut up or I'll kill you.” The victim was then able to identify the defendant as her attacker. Because showups, like the one at issue in this case, ask the witness to select from only one choice, such procedures are inherently suggestive. For the Biggers court, however, “the central question was whether under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive” (Neil v. Biggers, 1972, p. 199). The Court determined that the victim’s identification was reliable and therefore admissible, even though the showup procedure was suggestive. In making this determination, the Court relied heavily on the quality of the victim’s prior description, the considerable amount of time she had been with her attacker, and her steadfast refusal to make an identification on prior occasions.

While these earlier cases laid the groundwork, the Court formalized an explicit test for determining the reliability of eyewitness identification in Manson v. Brathwaite (1977). Manson announced a balancing test based on Biggers that provides guidance to the lower courts for determining whether a particular identification procedure is so suggestive that it is a violation of due process to use the subsequent identification against the accused. Like Biggers, Manson involved a showup, but in this case the witness was an undercover narcotics officer. The undercover officer made a buy from a seller and then described the seller to fellow police officers, one of whom thought the seller might be the defendant based upon this description. This officer obtained a picture of the defendant and left it for the undercover officer at his office. After viewing the picture, the undercover officer identified the defendant as the seller. While the Manson court acknowledged that the identification procedure was inherently suggestive, it noted that reliability under the totality of the circumstances, not non-suggestiveness, was the linchpin for determining whether an identification was admissible.

In providing guidance for the lower courts, the Manson court affirmed that the factors identified in Biggers should be weighed against the corrupting effect of a suggestive procedure. The relevant factors included the witness’s opportunity to view the criminal at the time of the crime, the witness’s degree of attention to the crime, the accuracy of any prior description of the criminal, the level of certainty demonstrated at the confrontation, and the length of time between the crime and the confrontation. If, after weighing these factors against the suggestiveness of the procedure at issue, the court concludes, under the totality of the circumstances, that there exists a substantial likelihood of irreparable misidentification, then the court should suppress the identification.

More recently, the U.S. Supreme Court re-examined the issue of eyewitness identification in Perry v. New Hampshire (2012). In Perry, a neighbor called to report that someone was breaking into cars in the parking lot outside her window. When the police responded, they found Perry walking through the parking lot carrying stereo equipment. He was detained in the parking lot by one officer while another officer went to speak with the caller. When that officer asked the caller to describe the man she saw, she pointed through


her kitchen window at Perry and said he was the man she saw. Perry was arrested shortly thereafter. In Perry, the Court distinguished between cases in which the suggestiveness of the identification procedures was attributable to the police and those in which it was not. Henceforth, trial judges need not conduct preliminary due process reviews of the reliability of eyewitness identifications so long as the suggestiveness is not the fault of the police, but Perry did not otherwise alter the Manson test. Prior Literature on the Biggers/Manson Factors Although the balancing test announced in Manson has been the law of the land for nearly 40 years, its efficacy as a tool to identify reliable (accurate) eyewitness identifications has been in doubt for much of that time (Wells and Murray, 1983). Certainty is probably the Biggers/Manson factor that has been researched the most extensively. Much of this research, however, focuses on the effect of certainty on juror, judge, and prosecutor credibility assessments rather than on its reliability as a predictor of accuracy (Bradfield & McQuiston, 2004).

Existing research focusing on the correlation between certainty (or confidence, as it is sometimes called in the literature) and accuracy often finds an association (Fleet, Brigham, and Bothwell, 1987; Pickel, Klauser, and Bauer, 2014; Sauer, Brewer, Zweck, and Weber, 2010). Several researchers, however, have found that the association between the two is not very strong and, in some cases, not even statistically significant (Krug, 2007; Wells & Murray, 1983). Research on children and adolescents reports modest correlations between certainty/confidence and accuracy (Brewer and Day, 2005). Thus, certainty appears to predict accuracy, at least sometimes, but there is good reason to suspect it does not predict accuracy to as great an extent as the public or criminal justice professionals may think it does.

Although there is some debate about the strength of the association between confidence and accuracy, it should be emphasized that this refers to certainty at the time of the identification. Obtaining a certainty statement, as noted above, is best practice, but not all law enforcement agencies routinely collect immediate post-identification certainty statements (Police Executive Research Forum, 2013). When there is no contemporaneous certainty statement, in-court expressions of confidence may be all the jury has to consider. Such expressions of certainty are meaningless as indicators of accuracy (Brewer and Wells, 2006). Despite their lack of efficacy, however, nothing prohibits juries or judges from considering in-court expressions of certainty when evaluating the weight to accord a witness’s identification. It should also be noted that extra-legal factors, such as being male, have been found to boost certainty/confidence (Yarmey, 1986).

Opportunity to view is obviously a critical component of encoding an experience, and without sufficient encoding subsequent retrieval is impossible (Narby, Cutler, and Penrod, 1996). Although the importance of opportunity to view is generally acknowledged, it is not always clear what courts mean by this term. Courts include a mix of factors under the rubric of opportunity to view, but time spent viewing the suspect, with more time regarded as better, often receives the most emphasis (Wells and Murray, 1983). Emphasis on time to view makes logical sense and has an empirical basis. One study based on actual lineups looked at several factors affecting opportunity to view, including lighting, obstruction, distance, and length of viewing during the crime to determine what predicted accuracy (Valentine, Pickering, and Darling, 2003). “The only significant effect was that witnesses who had more than one minute to view the culprit were more likely to identify the suspect

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than witnesses who viewed the culprit for a minute or less” (Valentine et al., 2003, p. 978). More recent research has also found that exposure duration favorably affects accuracy (Palmer, Brewer, Weber, and Nagesh, 2013). Other researchers have found good lighting conditions (i.e., daylight) to be a significant factor in accurate identifications as well (Yarmey, 1986).

Attention has also received a fair amount of study. The empirical record suggests that distractions during the encoding process generally reduce the accuracy of a person’s memory (Mulligan, 2008). For example, laboratory simulations asking subjects to make an identification while performing another task (divided attention) or not (full attention) suggest that distractions occurring while a subject is viewing a crime can have an adverse effect on the accuracy of identification under some circumstances (Palmer et al., 2013). Although this effect is logical and expected, it may not be as robust or universal as is sometimes assumed. Some studies, for example, suggest the effect may be contingent and depend on the type of recall being sought (Mulligan and Spataro, 2015; Sauer and Hope, 2016).

Moreover, not all forms of attention are equally conducive to later retrieval. Craik and Lockhart (1972) attribute this difference to levels of processing. Stimuli processed at a greater depth are more likely to remain in long-term memory and to be accessible later (Lockhart & Craik, 1990). Depth is determined by several factors, including a witness’s purpose in attending to a crime (Wells and Murray, 1983). Thus, witnesses who are aware that a criminal event is occurring while they are observing it are likely to process that event at a deeper level than are witnesses who unwittingly pass crimes in progress on their way to work.

One of the most significant problems with the Biggers/Manson factors is that they are subject to manipulation and change. One of the major causes of certainty/confidence inflation is post-identification confirming feedback (Wells and Quinlivan, 2009). Evidence suggests that positive confirmation from law enforcement, suggesting that the witness has identified the correct suspect, given after the identification, greatly inflates that witness’s reported certainty (Quinlivan, Neuschatz, Douglass, Wells, and Wetmore, 2012; Steblay et al., 2014; Wells and Bradfield, 1998). Witnesses also tend to become more certain over time, which can result in in-court testimony that is overly confident (Jones, Williams, and Brewer, 2008). In addition to affecting certainty, confirming feedback also causes witnesses to inflate their recollection of their opportunity to view and the degree of attention they paid to the crime as it unfolded (Quinlivan et al., 2012; Wells and Bradfield, 1998; Wells, Olson, and Charman, 2003).

Unlike certainty, opportunity to view, and attention, which usually depend upon a witness’s subjective recall, the delay between a crime and the identification procedure (referred to as the retention interval in much of the literature) is usually a matter of record. Despite the objective nature of retention interval data, they are not without some problems as a tool for predicting accuracy. Although a significant body of research has found that the length of the retention interval can adversely affect the accuracy of subsequent identifications (Palmer et al., 2013; Sauer et al., 2010), some research fails to find a statistically significant association between the two (Valentine et al., 2003; Wetmore et al., 2015). Meta-analysis suggests that there is a small to medium effect size between retention interval and accuracy of identification, meaning that longer delays between a crime and the identification are usually deleterious in terms of accuracy, but length of delay alone cannot predict accuracy very well (Deffenbacher, Bornstein, McGorty, and Penrod, 2008). There is also substantial, although not universal, agreement among experts that the rate


of memory loss for an event is greatest right after the event and then decreases over time (Deffenbacher et al., 2008; Kassin, Tubb, Hosch, and Memon, 2001). In addition to time-related decay, the accuracy of subsequent recall depends on the strength of the initial memory (Deffenbacher et al., 2008).

The accuracy of the witness’s prior description may logically be presumed to be an indicator of the strength of the initial memory. Research, however, does not always bear this out. Yarmey (1986), for example, found little support for the premise that a more accurate prior description predicted accurate identification of a perpetrator. Other researchers using actual lineups and counting as correct any identification of the police’s suspect, however, found that witnesses who were able to give a highly detailed description were more likely to make an accurate identification than were those who gave either an average or small amount of detail (Valentine et al., 2003). In sum, the research record regarding the efficacy of the Bigger/Manson factors is far from conclusive. Further research and the identification of more reliable means of evaluating the accuracy of eyewitness identifications are urgently needed. Data and Methods The data for this article (N=593) are derived from a non-probability sample of undergraduate and graduate students at Saint Louis University. Data were collected during the fall semester of 2014. The researcher obtained permission from colleagues to attend regularly scheduled classes to solicit volunteers. Participation was voluntary, and subjects were required to watch a short video of a simulated purse snatching, look at a photo array presented in a serial fashion, and complete a short survey.

Subjects viewed a video shot in daylight conditions on an empty street and had an unobstructed view of the purse snatcher throughout the video. No people other than the purse snatcher and the victim and no distractions like animals or moving cars were visible in the video. Research on eyewitness identification is typically done with video, and this method is regarded as valid and reliable (Wells, Memon, and Penrod, 2006). After viewing the video, subjects were asked to view a photo array, either immediately or up to 21 days later.

The photo array consisted of six headshots against a plain background, similar to mug shots. All were in color and of the same size. The purse snatcher was a middle-aged white man known to the author. Fillers were selected from among those known to the author or through referrals. All the fillers were middle-aged white men with coloring and build similar to those of the purse snatcher. None of the video participants had any association with the university and were presumptively unknown to the subjects. Subjects were allowed to look at each picture for 1 minute before being shown the next picture. Subjects were not allowed to re-examine previously viewed photos, so that the taint of multiple laps was avoided (Steblay et al., 2011).

While subjects examined each photo, the researcher was seated behind a desk on which a computer was placed, shielding her from the view. The researcher looked at the computer screen in front of her and was silent while subjects were shown the pictures and made their selection (no feedback of any kind was given). The researcher could not see the subjects make their selections and had no way of determining subject selection until the surveys had been collected. This was done to simulate double-blind administration. After the subjects had made their identifications and completed their surveys, their

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responses were collected without their choices being examined or their identifications commented on in any way. No identifying data were captured. Measures

Independent variables. On the survey that the subjects completed, the question immediately following the question asking them to identify the “purse snatcher” asked them to estimate the chance, expressed as a percentage, that they had selected the actual snatcher from among the photos they viewed. This percentage measure was used to capture certainty. Attention was similarly captured with a question asking subjects to rate their own degree of attention while watching the video of the crime. Choices included the following:

I paid very close attention to the video and focused on it exclusively while it was being shown (coded 3).

I paid a medium degree of attention to the video; I watched it but was somewhat distracted by other things (coded 2).

I did not pay much attention to the video and was focusing on other things while it was being shown (coded 1).

Opportunity to view was captured by the length of the video they watched. Some subjects watched a 10-second video showing only the purse snatching (coded 0). The rest of the subjects watched the same video and also saw a 1-minute face-to-face confrontation in which the camera operator repeatedly accused the perpetrator of stealing the purse and the perpetrator repeatedly denied doing so while looking directly into the camera (coded 1).

The amount of elapsed time between the crime and the identification was captured by measuring the number of days that elapsed between viewing the video of the purse snatching and seeing the photo array (coded 1–21). Subjects answered survey questions about the purse snatcher’s appearance immediately before seeing the photo array to determine how good a description of the perpetrator they were able to give. Subjects were asked to report the perpetrator’s sex, race, age, height, weight and eye color. Demographic data were coded for sex (male=1, female=0) and race (white or European descent=1, other=0).

Subjects were asked to estimate the purse snatcher’s age. These raw data were re-coded to reflect the degree to which the estimate was in accord with the perpetrator’s actual age, which was 50 years at the time the video was made. The estimates were coded as follows: 4 for an estimate that was within +/- 2 years of the perpetrator’s actual age, 3 for an estimate within +/- 3 to 5 years, 2 for an estimate within +/- 6 to 10 years, and 1 for an estimate more than 10 years off. Weight data were similarly re-coded, with 4 for an estimate that was within +/- 10 pounds of the perpetrator’s actual weight, 3 for an estimate within +/- 11 to 25 pounds, 2 for an estimate within +/- 26 to 50 pounds, and 1 for an estimate more than 50 pounds off. Eye color was re-coded 1 if the eye color (blue) was correctly stated and 0 if it was not.

Dependent variable. The dependent variable of interest in this study is identification accuracy. Because this study involves a mock crime, the identity of the perpetrator was known. Subjects who correctly identified the perpetrator were coded 1. Those who selected a filler were coded 0. Findings


Description of the Subjects A total of 593 students agreed to participate, of whom 403 (68%) were female and the remaining 190 (32%) male. The gender disproportionality reflects gender disparities in class enrollments in the School of Social Work, the primary source of subjects. The subjects ranged in age from 18 to 61 years, with a mean age of 21.49 years. Most of the subjects self-identified as White/European descent (n=450); the rest of the subjects reported that they were Black/African-American (n=41), Asian/Pacific Islander (n=63), or Hispanic (n=21), with the remaining subjects identified as “other” (n=18).

Descriptive Findings Rates of self-reported certainty ranged from 0% to 100%, indicating that some subjects were positive that their identification was wrong whereas others were positive that their identification was correct. The mean degree of reported certainty was 65.26%. The vast majority of subjects reported that they had paid very close attention to the video (n=426); 162 reported that they had paid a medium degree of attention, and only 3 said they had not paid much attention to the video. In terms of opportunity to view, a slight majority of the students watched the short video (n=302), and the rest watched the longer video (n=291). The delay between the witnessed event and the identification ranged from same day (coded 0) to 3 weeks (coded 21), with a mean delay of 7.92 days.

The accuracy of prior description depends on several variables. All subjects were able to identify the perpetrator’s sex correctly. As a result, sex was dropped from further analyses. Race also showed very little variability, with 98.5% (n=584) of the subjects correctly identifying the perpetrator’s race (White/European descent). As a result, race was also dropped from further analyses. Estimations of the perpetrator’s age ranged from 18 to 65 years, with a mean estimate of 42.66 years (actual age was 50 years). As Table 1 indicates, variability was also associated with the subjects’ descriptions of height, weight, and eye color. More than half were able to pinpoint the perpetrator’s height to within 2 inches. Estimations of weight were more evenly distributed across the range, with fewer than 20% of the subjects able to estimate weight within 10 pounds. A similarly small percentage were able to identify the perpetrator’s eye color correctly. Most of the subjects were not able to identify the purse snatcher correctly. Only 165 of the subjects (28%)

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correctly identified the suspect.

Bivariate and Multivariate Analyses Turning to bivariate analysis (Table 2), it is clear that not all of the factors articulated in Mason were actually predictive of accuracy among this sample. Certainty was correlated with accuracy in a statistically significant manner, but the association was weak. Opportunity to view, measured by the length of the video, was also a statistically significant predictor of accuracy, suggesting that those who had a longer observation period were more likely to identify the perpetrator correctly when asked to do so later. Only one variable, weight, capturing the accuracy of the subject’s prior description was a statistically significant predictor of accurate identification, and the relationship was in an unexpected direction (negative). The remaining variables were not correlated with accuracy of the identification.

There were also some interesting correlations among the Manson factors. Certainty, for example, positively correlated with attention, suggesting that those who thought they had paid more attention tended to be more certain. Delay (retention interval) was negatively associated with certainty, suggesting that those who had waited longer were less certain of their choice. In addition, those who had watched the longer video (better opportunity to view) were more likely to describe the perpetrator’s eye color and age accurately. Not surprisingly, some elements of the description, including eye color and weight, were positively associated with age, indicating that subjects who were correct on one of these attributes were more likely to be correct on another. Similarly, being correct on weight and height were positively associated.

Because the dependent variable is dichotomous, binary logistic regression was selected for further analyses (Table 3). Certainty, attention, opportunity to view, delay, and accuracy of prior identification were all used to predict accuracy of the identification. Consistent with the bivariate results above, certainty helped to predict accuracy, even when the other Manson factors were simultaneously accounted for, as did poor estimation of weight, which is a somewhat bizarre finding. Opportunity to view, however, lost its significance, suggesting that once the other factors are accounted for, opportunity to view no longer affects the likelihood of an accurate identification.


Whereas the coefficients produced in logistic regression are unstandardized and thus

not directly comparable, Wald statistics allow the relative contributions of the Manson factors to the outcome of interest to be evaluated (Bachman and Paternoster, 1997). As is apparent from Table 3, certainty is more important than an incorrect estimate of weight in predicting accuracy of the identification. Although the model has a statistically significant predictive value, its utility is quite limited. The Pseudo R2 measure suggests that this model explains only about 5% of the variance in the dependent variable, accuracy of identification.

Discussion Consistent with the existing literature, this test of the Biggers/Manson factors suggests that they are not reliable or robust predictors of accuracy, either alone or in concert. Although this model—in particular, certainty/confidence—accurately predicted a small amount of the variance in identifications, the effect is quite small. It is noteworthy that subjects subjectively felt more certain about their identifications (65%) than their actual performance (28% correct) warranted. Thus, although some of the Manson factors appear to be valid means of assessing accuracy, at least under some circumstances, they are far from sufficient to guarantee discrimination between correct and incorrect identifications. These results are quite troubling and suggest that Manson is not an adequate test for determining the reliability of an eyewitness’s identification.

Certain limitations are inherent in studies of this nature. First, probability sampling was not feasible, making it difficult to generalize the results to the larger U.S. population. Also, variation in attention was limited, which is expected given that subjects were seated facing a large video screen and were directed to look at the screen before the start of the video of the purse snatching. The difference between viewing under these circumstances and happening upon a crime in one’s daily life is obvious, and the circumstances may have limited the extent to which there was actual (as opposed to reported) variance in the

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amount of attention paid to the simulated criminal event. This may explain why attention was never significant in this model, despite its undisputed role in memory formation (encoding). Perhaps the distinctions between those who reported paying close attention and those who reported paying medium attention were not that great. Moreover, self-reported attention may suffer from an inflation effect, as many people may retrospectively think that they paid greater attention than they actually did. This limitation applies to crime victims in the real world as well. Conclusion The failure of the Manson factors to demonstrate a robust and consistent ability to discriminate between accurate, and thus reliable, identifications and those that are mistaken is, given the reliance of the courts on this test, quite troubling. Misidentification is the most salient factor in most documented wrongful conviction cases (Innocence Project, 2016). Those wrongfully convicted because of misidentification unjustly spend years behind bars, and a few have come close to being executed (Innocence Project, 2016). Even if the misidentified manage to escape conviction, being wrongfully accused of a crime is likely to cause significant harm and disruption for the individual involved. Just being accused of a crime is likely to cause loss of reputation and social standing, to say nothing of the financial hardship inflicted by legal bills and the untold mental and emotional anguish a public accusation is likely to engender (Bradfield and McQuiston, 2004; Gould, Garrano, Leo, and Hail-Jares, 2014).

Given the magnitude of the harm that misidentified suspects suffer, Manson should, at the very least, be broadened to include other relevant predictors, including the speed with which a witness makes an identification upon being presented with the suspect (referred to as latency in the literature). Research suggests that latency is more important than or at least as important as the factors articulated in Manson and currently relied on by the courts (Brewer, Caon, Todd, and Weber, 2006; Dodson and Dobolyi, 2016; Valentine et al., 2003). Therefore, police should be encouraged/required to record the amount of time the witness was confronted with the suspect before making an identification so that the court can be provided with some additional data from which to make a determination of reliability.

Furthermore, although taking an immediate certainty statement has become more common in recent years (Police Executive Research Forum, 2013; DOJ, 2017), police usually do not routinely collect and record immediate statements regarding opportunity to view and attention paid. Although such statements could be made part of the certainty statement process, it is probably better for the police to gather this information when they initially have contact with the witness. Such statements could be taken as part of the initial complaint or, if the witness is not the victim, recorded when the witness provides an initial description of the subject. Some investigators may do this, but it would be helpful if all investigators did it to guard against the demonstrated possibility of inflation in these factors.

These changes should enhance accuracy; however, they promise only incremental improvement. Perhaps, given the results of this study and others, which suggest that the Manson factors are not consistently sufficient to discriminate between accurate and inaccurate identifications, it is time for the courts to adopt stronger protections against misidentification. One approach could be for the U.S. Supreme Court to adopt a corroboration rule for eyewitness identifications as a matter of due process.

Historically, the corroboration rule was applied in rape cases to prevent a case from going to the jury solely on the basis of the victim’s testimony. Most American jurisdictions


no longer follow the corroboration rule, rejecting it as an obvious form of legal misogyny (McGuire, Callahan, and Donner, 2012). Although applying such a rule to only one class of victims of a highly gendered crime is inappropriate and has obvious equal protection implications, applying it to all eyewitness testimony in all criminal cases would be materially different and potentially efficacious in reducing wrongful convictions based upon faulty eyewitness identifications.

Corroboration of an eyewitness identification as a precondition to admissibility of the identification could take many forms. For example, fingerprints, fiber evidence, DNA, or a surveillance video could all be used to corroborate an eyewitness identification, as could the testimony of other, independent witnesses. Such an approach would ensure that no case goes to a jury resting solely on a lone eyewitness identification. Such a rule is justified given the primary and decisive role eyewitness misidentification plays in wrongful convictions (Wechsler et al., 2015).

A corroboration rule for eyewitness cases should be limited to cases involving stranger-on-stranger crimes, as eye witness identification of known assailants is less likely to be inaccurate (Valentine et al., 2003). Thus, victims of domestic abuse, date rape, or other crimes in which the assailant is known to the victim would not be affected by this rule. This rule will probably result in some factually guilty people going free, but it will also protect innocent people from wrongful conviction. The danger of wrongful conviction is large enough that steps to protect the innocent are warranted, not just as a matter of fairness but possibly also as a matter of due process.

This policy will do more than protect the wrongfully accused; policies such as this, which enhance protections against wrongful conviction, also serve the interests of the public and law enforcement (McGuire et al., 2015). Wrongful convictions serve to shield actual offenders from apprehension, which affords them the opportunity to continue preying on the public. Ensnaring the innocent damages police–community relations when it comes to light and can result in civil liability for both the agency and the officers involved. Even if we could be certain that the trial process weeds out those who are actually innocent but misidentified, trying people on the basis of faulty eyewitness identification is a huge waste of resources. As such, it is in all stakeholders’ interests to reduce misidentifications to the maximum extent possible. A corroboration rule would provide meaningful reform with the potential to reduce substantially the risk for a wrongful conviction based upon faulty identifications. Declaration of Conflicting Interests The author declares no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author received no financial support with respect to the research, authorship, and/or publication of this article. References Bachman, R., & Paternoster, R. (1997). Statistical methods for criminology and criminal

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Article

___________________________________________________________________________ I Criminal Justice and Legal Studies Department, Washburn University, Topeka, KS, USA II Criminal Justice and Legal Studies Department, Washburn University, Topeka, KS, USA Corresponding Author: Michelle M. Watson, Criminal Justice and Legal Studies Department, Washburn University, 1700 College Ave., Benton Hall, Room 203A, Topeka, KS, 66621, USA E-mail: [email protected] The authors wish to express their appreciation to the blind reviewers of the original manuscript for their comments, which were helpful during preparation of the final version of the manuscript.

Michelle M. Watson I and Melanie K. Worsley II

Abstract This paper discusses the 2017 case of Lee v. United States, in which the U.S. Supreme Court held for the first time that a defendant had been prejudiced by his counsel’s misinformation about the deportation consequences of a guilty plea. The Lee case marks a significant step in the Court’s recognition of ineffective assistance of counsel claims and criminal defendants’ right to receive accurate legal advice when deciding whether to accept a plea offer. The Court’s journey to Lee is examined, beginning with its declaration in 1985 that the test for ineffective assistance of counsel claims, established in Strickland v. Washington, applies in the context of plea bargains. The possible implications of Lee are also considered, including reflection on language in the case that appears to provide for widespread relief to defendants but which could conversely lead to a narrow interpretation and application of Lee. Keywords Prejudice, ineffective assistance of counsel, deportation, immigration, plea bargain, Sixth Amendment I. Introduction In the 2017 decision of Lee v. United States, the U.S. Supreme Court addressed the prejudicial effect of defense counsel’s misinformation about the deportation consequences

Finding Prejudice: Ineffective Assistance of Counsel in Lee v. United States



52 Michelle M. Watson and Melanie K. Worsley

of a defendant’s guilty plea in a criminal case.1 This case marks a significant step in the Supreme Court’s recognition of ineffective assistance of counsel claims and a defendant’s right to receive accurate legal advice when deciding whether to accept a plea offer or to reject the offer and proceed to trial, even when the possibility of a favorable trial outcome is slim to none. More than 95% of criminal cases end in plea agreements, which means that a vast number of defendants rely on their attorneys’ advice in waiving the privilege of going to trial.2 Although most defense attorneys are not likely to be well versed on immigration laws and although the “collateral” consequences of a guilty plea are not an integrated part of the guilt phase of a trial, the Court has placed an affirmative duty on defense counsel to warn clients of mandatory deportation.3 This duty has been in existence since the Court’s 2010 decision in Padilla v. Kentucky, but before Lee, the Court had never made a finding of prejudice in this context.4 II. Right to Effective Assistance of Counsel In arriving at the Lee decision, the U.S. Supreme Court’s journey has been long and circuitous. Claims of ineffective assistance of counsel have spanned a wide expanse that encompasses “critical stages” of the prosecution of criminally accused individuals.5 The right to effective counsel evolved out of the right to counsel found in the Sixth Amendment to the U.S. Constitution, which guarantees every criminal defendant “shall enjoy the right to . . . have the assistance of counsel for his defense.”6 The Supreme Court has interpreted this Sixth Amendment provision to mean that individuals must be informed of their right to counsel before a custodial interrogation and must be protected against ineffective assistance of counsel. The right to assistance of counsel also means that the government must provide defense counsel for indigent defendants in criminal cases. The Supreme Court has stressed that assistance of counsel is a constitutional principle essential to ensuring a fair trial.7 However, the term “critical stages” has been deemed to include a variety of judicial proceedings, including, in part, pretrial hearings, entry of guilty pleas, trials, and sentencing.8 Our focus is on effective assistance of counsel during the plea process—the point in time during which most criminal cases end. III. Two-Part Strickland Test To understand the holding in Lee, it is helpful to follow the U.S. Supreme Court’s path to finding prejudice caused by defense counsel’s performance. It was not until the 1984 case of Strickland v. Washington that the Supreme Court established a bright-line rule for

1 Lee v. United States, 137 S. Ct. 1958 (2017). 2 Claire Bernish, Due Process is Dead: A Staggering 95% of All Inmates in America Have Never Received a Trial, Jan. 25, 2016, http://thefreethoughtproject.com/due-process-dead-staggering-95-inmates-america-received-trial/; see Erica Goode, Stronger Hand for Judges in the “Bazaar” of Plea Deals, N.Y. TIMES (Mar. 22, 2012), http://www.nytimes.com/2012/03/23/us/stronger-hand-for-judges-after-rulings-on-plea-deals.html. 3 See Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOW. L.J. 693, 694 (Spring 2011). 4 Padilla v. Kentucky, 559 U.S. 356 (2010). 5 Montejo v. Louisiana, 556 U.S. 778, 786 (2009). 6 U.S. CONST. amend. VI. 7 Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). 8 Lafler v. Cooper, 566 U.S. 156, 165 (2012); United States v. Wade, 388 U.S. 218, 226-27 (1967).


addressing ineffective assistance of counsel claims.9 The defendant, who received the death penalty, sought relief on numerous grounds, one of which alleged that defense counsel’s assistance had been deficient at the sentencing hearing. The Supreme Court noted that counsel’s role in a capital sentencing proceeding is “comparable to counsel’s role at trial—to ensure that the adversarial testing process works to produce a just result under the standards governing decision.”10 A defendant who claims that counsel’s assistance was so defective as to require the reversal of a conviction or sentence must satisfy the requirements of a two-prong test, showing that (1) counsel’s performance was deficient and (2) the deficiency prejudiced the defense.11 The first prong ties into the practice and expectations of the legal community, requiring counsel’s performance to be reasonable under “prevailing professional norms.”12 To be considered deficient, the conduct must essentially amount to incompetence, which is different from a mere deviation from “best practices or most common custom.”13 Moreover, courts must examine the reasonableness of counsel's challenged conduct as of the time it occurred, in light of the facts and circumstances of the case in question.

Under the second, prejudice prong of the Strickland test, a defendant must demonstrate that but for the constitutionally deficient representation, there is a reasonable probability that the result of the proceeding would have been different. A reasonable probability means a “probability sufficient to undermine confidence in the outcome.”14 The prejudice prong can understandably be a difficult hurdle to overcome, and the Supreme Court has cautioned that the “likelihood of a different result must be substantial, not just conceivable.”15 At the time of Strickland, the Court had not yet addressed any claims of deficient performance of attorneys during the plea-bargaining stage of a case, but one year after Strickland, this topic was presented before the Court, initially through the case of Hill v. Lockhart16 and subsequently through several other cases in the Court’s journey to Lee.

IV. Application of Strickland in Pre-Lee Plea Bargain Cases Because the plea-bargaining stage takes place before trial, the prejudice prong of the Strickland test—requiring the defendant to show that but for counsel’s deficiencies, the result of the proceeding would have been different—does not fit neatly into the analysis of an ineffective assistance claim. In Hill v. Lockhart, the U.S. Supreme Court not only established for the first time that Strickland applies to the plea-bargaining stage but also addressed how to apply the prejudice prong to a plea bargain case.17 The effect of Hill was immense in the criminal defense arena, where plea bargains are plentiful.

In Hill, an incarcerated individual, William Lloyd Hill, had filed a post-conviction petition, claiming that his guilty plea was involuntary as the result of ineffective assistance of defense counsel during the underlying Arkansas criminal case, in which he had pleaded

9 Strickland v. Washington, 466 U.S. 668 (1984). 10 Id. at 686. 11 Id. at 687. 12 See Flynn v. State, 281 Kan. 1154, 1162-63 136 P.3d 909 (2006). 13 Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland, 466 U.S. at 690). 14 United States v. Strickland, 466 U.S. 668, 694 (1984). 15 Harrington, 562 U.S. at 111; see Strickland, 466 U.S. at 691. 16 Hill v. Lockhart, 474 U.S. 52 (1985). 17 Id. at 58-59.


guilty to first-degree murder and theft of property.18 According to Hill, defense counsel had failed to advise him that the state sentencing statutes required the defendant, as a second offender, to serve one-half of his sentence before becoming eligible for parole.19 Instead, defense counsel had informed him that his guilty plea would result in parole eligibility after completion of only one-third of his sentence. The federal district court denied Hill’s request for relief without a hearing, and the U.S. Court of Appeals for the Eighth Circuit affirmed.20 Because the Hill case conflicted with the result in a similar case in the U.S. Court of Appeals for the Fourth Circuit, the U.S. Supreme Court granted certiorari.21

The Supreme Court first noted the well-known test for determining the validity of a guilty plea, which asks “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.”22 However, Hill did not argue that the State’s failure to furnish him with parole eligibility information had rendered his plea involuntary.23 Rather, Hill attacked defense counsel’s failure to inform him accurately of parole eligibility, so the Supreme Court was tasked with determining whether Strickland would apply in this context. The Court observed that in a case in which a defendant pleads guilty on advice of counsel, “the voluntariness of the plea,” as established in McMann v. Richardson,24 “depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’”25 The McMann test was premised on the principle that criminal defendants—at that time offenders facing felony charges—are entitled to effective assistance of counsel. Because of this right, from which stemmed the Strickland test for ineffective assistance in the context of criminal trials, the Court concluded that Strickland should apply to the plea process as well.

The Supreme Court specified that its reasons for imposing the prejudice prong in Strickland to a capital sentencing proceeding should also apply in the context of guilty pleas. One of these reasons included the fact that “[t]he government is not responsible for, and hence not able to prevent, attorney errors that will result in the reversal of a conviction or sentence.”26 Attorney errors appear in such a variety that, no matter the context, it is impossible to provide defense attorneys with an exact description or definition of what constitutes prohibited conduct.27 Further, in light of the large number of guilty pleas, the

18 Id. at 53-54. 19 Id. at 52; Ark. Stat. Ann. § 43-2829 B(3) (1977). Under Arkansas statutes, an offender convicted of first-degree murder would potentially serve 5- to 50-years’ imprisonment or life imprisonment. Hill’s appointed counsel negotiated a plea agreement in which Hill would plead guilty to murder and theft, and in exchange, the State would recommend concurrent prison sentences of 35 years (murder) and 10 years (theft). 20 Hill, 474 U.S. at 55. 21 Id. at 53 (citing Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979)). 22 Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). 23 Id. (citing FED. R. CRIM. P. 119(c); then citing FED R. CRIM. P. 11 advisory committee’s notes to 1974 amendment). Federal courts are generally not required to inform a defendant about parole eligibility before accepting a guilty plea. 24 McMann v. Richardson, 397 U.S. 759 (1970). 25 Hill, 474 U.S. 52, 56 (1985) (quoting McMann, 397 U.S. at 771). 26 Id. at 57. 27 Id. at 57-58 (1985) (citing United States v. Strickland, 466 U.S. 668, 693 (1984)).


Court indicated that requiring defendants to show prejudice serves a fundamental interest in the finality of those pleas.28

As for the application of the two-part Strickland test, the Hill Court stated that the first prong is the same in the context of a plea bargain. The second, prejudice prong, however, focuses not on the ineffectiveness of defense counsel during a trial but on “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.”29 Under this rationale, a defendant must show that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”30 The Supreme Court noted that depending on the facts of a case, the prejudice analysis in a plea bargain case could look quite similar to the analysis in a case alleging ineffective assistance of counsel during trial—involving an objective prediction of the possible outcome. The Court compared the plea bargain situation to one in which a defendant attacks counsel’s effectiveness because of the failure to investigate or discover potentially exculpatory evidence or the failure to inform the defendant of affirmative defenses. Under those scenarios, a court would examine whether the evidence or affirmative defense would likely have changed the trial’s outcome.31

The Hill Court declined to address “whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel,” leaving that determination for another day.32 Nevertheless, the Court did find that Hill failed to satisfy the prejudice prong of Strickland because nowhere in Hill’s post-conviction petition had he alleged that if counsel had accurately advised him about his parole eligibility date, he would have foregone a guilty plea and sought a trial. It was significant that Hill had not placed any emphasis on his parole eligibility as a determinative factor in making his decision to plead guilty.33 The Court continued to place a defendant’s motivation, the determinative factor, under its microscope in the other cases leading up to Lee.

Fifteen years after Hill, in the split decision of Padilla v. Kentucky,34 the U.S. Supreme Court again addressed the application of Strickland to the plea process. Padilla is particularly important in our discussion of Lee because it ultimately established that defense counsel’s advice regarding deportation falls under the ambit of the Sixth Amendment right to counsel, and thus counsel must provide adequate assistance not only by giving deportation advice to the defendant but also by giving him accurate advice.

28 Hill v. Lockhart, 474 U.S. 52, 58 (1985) (citing United States v. Timmreck, 441 U.S. 780, 784 (1979) (“‘Every inroad on the concept of finality undermines confidence in the integrity of our procedures. . . . The impact is greatest when new grounds for setting aside guilty pleas are approved . . . .’”). 29 Id. at 58-59; see Tollett v. Henderson, 411 U.S. 258 (1973). 30 Hill, 474 U.S. at 59. 31 Id. at 59-60. 32 Id. at 60. 33 Id. In Justice White’s concurring opinion, he opined that counsel was not deficient because Hill never asserted that his attorney knew about his prior Florida felony conviction, which elevated the Arkansas sentence. Without such knowledge, counsel could not be expected to take that prior conviction into consideration when advising his client of the potential sentence. Id. at 61-63 (White, J. concurring). 34 Padilla v. Kentucky, 559 U.S. 356 (2010).


The defendant, Jose Padilla, a native of Honduras, had been living in the United States

as a lawful permanent resident for over 40 years. He pleaded guilty to transporting a large quantity of marijuana. Under federal law, Padilla faced mandatory deportation because of this plea. He sought post-conviction relief on the basis that defense counsel had misinformed him about the consequences of his plea, advising the defendant that he “did not have to worry about immigration status since he had been in the country for so long.”35 In his petition, Padilla claimed that he would have chosen to go to trial if counsel had advised him correctly. The Kentucky Supreme Court denied relief without an evidentiary hearing, holding that the right to effective assistance of counsel does not protect an individual from erroneous deportation advice because deportation is merely a “collateral” consequence of a criminal conviction in that the sentencing court does not impose deportation.36 The U.S. Supreme Court granted certiorari to determine whether “as a matter of federal law, Padilla’s counsel had an obligation to advise him that the offense to which he was pleading guilty would result in his removal from this country.”37 The Court answered this question in the affirmative.38

The majority opinion, written by Justice Stevens, declined to make a distinction between collateral or direct consequences with regard to deportation because deportation is such a severe penalty and because “its close connection to the criminal process [makes it] uniquely difficult to classify as either a direct or collateral consequence.”39 Moreover, the influence of prevailing professional norms suggests that defense counsel must advise the client regarding the risk of deportation.40 To bolster this rationale, the Supreme Court noted that several years prior, in INS v. St. Cyr,41 it had recognized that a person’s right to remain in this country could be more important to that person than any jail sentence. In addition, even though deportation proceedings are civil in nature, deportation is “intimately related to the criminal process.”42

Recognizing that immigration laws can be complex, the Padilla Court indicated that in instances in which immigration laws are not clear, a criminal defense attorney must merely advise a non-citizen client that “pending criminal charges may carry a risk of adverse

35 Id. at 359 (quoting Commonwealth v. Padilla, 253 S.W.3d 482, 483 (Ky. 2008)). 36 Id. at 359-60. 37 Id. at 360. 38 Later, in Chaidez v. United States, 568 U.S. 342, 358 (2013), the Court ruled that Padilla does not apply retroactively. 39 Padilla, 559 U.S. at 366. 40 Padilla v. Kentucky, 559 U.S. 356, 367 (2010); see, e.g., ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION & DEF. FUNCTION § 4-5.1(a), p. 197 (3d ed. 1993); ABA STANDARDS FOR

CRIMINAL JUSTICE, PLEAS OF GUILTY §14-3.2(f), p. 116 (3d ed. 1999). Justice Alito, in his concurring opinion, thought that an attorney must refrain from “unreasonably providing incorrect advice” and must advise a defendant that a criminal conviction “may have adverse immigration consequences and that, if the alien wants advice on this issue, the alien should consult with an immigration attorney.” Padilla, 559 U.S. at 375 (Alito, J., concurring). Justice Scalia’s dissent opined that deportation is a collateral consequence of a criminal conviction, and, therefore, defense attorneys should not be considered inadequate for giving affirmative misadvise about such consequences. “We have never held, as the logic of the Court’s opinion assumes, that once counsel is appointed all professional responsibilities of counsel—even those extending beyond defense the prosecution—become constitutional commands.” Id. at 390 (Scalia, J. dissenting). 41 INS v. St. Cyr, 533 U.S. 289 (2001). 42 Padilla, 559 U.S. at 365 (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)).


immigration consequences.”43 The Supreme Court rejected the notion that Strickland applies only to affirmative misadvice: “It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so ‘clearly satisfies the first prong of the Strickland analysis.’”44 The statute applicable to Padilla succinctly and clearly provided that a plea to his specific offense required deportation.45 Thus, because of the clear language, defense counsel’s failure to give proper advice amounted to ineffective assistance in violation of the first prong of the Strickland test.46 The Court did not address the prejudice prong of the test, however. Instead, the Court reversed and remanded the case to the Kentucky Supreme Court for further proceedings in which Padilla would have the opportunity to demonstrate prejudice.47

In the concurring opinion, Justice Alito, joined by Chief Justice Stevens, suggested that the majority dramatically departed from precedent by requiring defense attorneys to advise clients of more than the “direct consequences of a criminal conviction.”48 He was troubled by the fact that the majority would require defense attorneys, who typically lack expertise in the immigration arena, to provide deportation advice. Justice Alito feared that defendants could be misled about what he characterized as a “collateral” consequence.49 The majority’s decision, according to Justice Alito, “marks a major upheaval in Sixth Amendment law” because the majority cited no case law holding that defense counsel’s failure to provide advice about “removal consequences of a criminal conviction” violates a defendant’s constitutional right to counsel.50 However, Justice Alito agreed that “unreasonable and incorrect information” may constitute ineffective assistance and suggested that a defendant’s constitutional right to counsel is satisfied if defense counsel informs the client that there might be consequences under immigration laws and that the client should consult an immigration specialist for specifics.51

The dissent, authored by Justice Scalia and joined by Justice Thomas, disagreed with the majority’s conclusion that the Sixth Amendment requires defense counsel to provide “accurate advice concerning the potential removal consequences of a guilty plea.”52 Consequently, although the dissent agreed with the concurrence that deportation is a collateral consequence of a criminal conviction, the dissent disagreed with the notion that an attorney’s affirmative misadvice regarding deportation constitutes ineffective assistance. Justice Scalia opined that there was no basis to extend “the constitutionally required advice regarding guilty pleas beyond those matters germane to the criminal prosecution at hand—to wit, the sentence that the plea will produce, the higher sentence 43 Id. at 369. 44 Id. at 371 (quoting Hill v. Lockhart, 474 U.S. 52, 62 (1985)). 45 Id. at 368; see 8 U.S.C.A. § 1227(a)(2)(B)(i) (2008) (“Any alien who at any time after admission has been convicted of . . . any law of regulation of a State, the United States or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.”). 46 Padilla v. Kentucky, 559 U.S. 356, 369 (2010). 47 Id. at 374. 48 Id. at 376. (Alito, J., concurring). 49 Id. at 381-82. There could be circumstances in which an alien, as a consequence of entering a guilty plea, would not be deported but would be excluded from reentering the United States if he were to visit his home country. 50 Id. at 383. 51 Id. at 384, 388. 52 Padilla v. Kentucky, 559 U.S. 356, 388 (2010) (Scalia, J., dissenting).


that conviction after trial might entail, and the chances of such a conviction.”53 Thus, he would limit a defense attorney’s obligations.54

The following year, in Premo v. Moore, the U.S. Supreme Court again addressed a claim of ineffective assistance of counsel during the plea process.55 This time, the focus was not on deportation advice but on plea advice given without counsel’s having first sought to exclude the defendant’s confession to law enforcement officers. In the underlying Oregon case, Randy Moore pleaded no contest to felony murder in exchange for 300 months’ incarceration, the minimum sentence for the offense. Moore admitted his involvement in the crime to two individuals and then repeated the same account of events to law enforcement.56

Moore then sought post-conviction relief in state court. At an evidentiary hearing, defense counsel explained that he had told Moore the court would likely deny a motion to suppress statements to police because of Moore’s prior confessions. Counsel had also spoken to Moore about a possible charge of aggravated murder, for which he could be sentenced to death or life without possibility of parole. The state court concluded that Moore had not received ineffective assistance. Moore subsequently sought post-conviction relief in federal court, where the United States District Court for the District of Oregon denied Moore’s request on the ground that suppression of the evidence would not have made a difference. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed, in part, because it found that the state court’s conclusion was an “unreasonable” application of Strickland.57 The U.S. Supreme Court granted certiorari.

In applying applicable federal law to Moore’s case, the Supreme Court concluded that the state court had not made an unreasonable application of either prong of the Strickland test.58 As for the first prong of Strickland, the Supreme Court found it was reasonable for the federal district court to accept counsel’s justification for his decision to discuss the plea bargain without first filing a motion to suppress Moore’s confession to police.59 With regard to the second, prejudice prong of Strickland, the Court noted that the “stakes for defendants are high,” and defendants may choose to limit the risks by foregoing trial.60 What is also notable about the Premo case for our purposes is that the Court recognized the favorable plea decision—Moore had avoided the death penalty or life imprisonment without possibility of parole.61

The Premo Court stated that in this type of case, in which the defendant alleges that ineffective assistance prejudiced him in making a plea, it is incorrect to measure prejudice by asking whether it was “clear beyond a reasonable doubt that a rational jury would have

53 Id. at 390. 54 Id. at 388, 392. 55 Premo v. Moore, 562 U.S. 115 (2011). 56 Id. at 118-19. 57 Id. at 119-20. 58 Id. at 120 (applying standard of review as required under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.A. § 2254(d) (1996)). 59 Id. at 123-24. The Court stated: “Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks.” Id. at 124. 60 Id. at 129. 61 Premo v. Moore, 562 U.S. 115, 129 (2011).


found the defendant guilty absent the error.”62 Defendants regularly enter pleas “even though there is a significant probability—much more than reasonable doubt—that they would be acquitted if they proceeded to trial.”63 Instead, the appropriate question asks whether there is a “reasonable probability that [the defendant] would not have entered his plea but for his counsel’s deficiency.”64 The Court stressed that the plea process brings stability to the criminal justice system, and this process must not be undermined, especially in cases in which witnesses and evidence were never presented to a fact finder. Moore failed to show prejudice.65

Two years later, in 2012, the U.S. Supreme Court issued two cases addressing ineffective assistance of counsel claims involving plea bargains: Missouri v. Frye66 and Lafler v. Cooper.67 In Missouri v. Frye, the defendant, Galin Frye, had been charged with felony driving with a revoked license.68 The prosecution had offered two plea deal options, both of which defense counsel had failed to communicate to the defendant, and the offers expired. The defendant had subsequently waived his preliminary hearing and pleaded guilty to the felony charge. There was no underlying plea agreement.69

Frye sought post-conviction relief, claiming ineffective assistance of counsel because his attorney had failed to inform him about the plea offers. The district court denied Frye’s request for relief, and Frye appealed to the Missouri Court of Appeals. The appellate court reversed, concluding that Frye had satisfied both Strickland prongs. The U.S. Supreme Court granted certiorari.70

In a 5-4 decision, the Supreme Court held that defense counsel’s performance had been deficient because “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”71 The Supreme Court concluded, however, that the Missouri Court of Appeals’ application of the prejudice prong was insufficient because it focused only on whether Frye would have accepted the more favorable terms of the plea agreement. The Supreme Court explained that in cases in which a plea offer has lapsed or been rejected, a defendant must also show that there was “a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.”72 The Court remanded the case to state court for a determination of whether there was a reasonable probability the prosecutor and judge would have accepted the plea agreement, including whether Missouri law required them to do so.73

The dissent, authored by Justice Scalia, rejected Frye’s argument that he had a constitutional right to effective assistance of counsel during the plea bargain process. As

62 Id. 63 Id. 64 Id. 65 Id. at 132. 66 Missouri v. Frye, 566 U.S. 134 (2012). 67 Lafler v. Cooper, 566 U.S. 156 (2012). 68 Frye, 566 U.S. at 138. 69 Id. at 139. 70 Id. at 139-40. 71 Id. at 145. 72 Missouri v. Frye, 566 U.S. 134, 147 (2012). 73 Id. at 151.


Justice Scalia noted, “Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place.”74 The dissent also called into question the majority’s explanation of the Strickland prejudice prong because the review requires a “process of retrospective crystal-ball gazing posing as legal analysis.”75

The U.S. Supreme Court’s holding in Frye is significant because the Court established that counsel’s failure to communicate a formal plea bargain constituted deficient performance under Strickland. The Court, however, refrained from deciding whether the deficient performance resulted in prejudice. In Frye’s companion case, Lafler v. Cooper, the Supreme Court for the first time found prejudice in a case involving ineffective assistance of counsel and plea bargains.

In Lafler, defense counsel had erroneously advised the defendant, Blaine Lafler, to reject a plea offer and had recommended that he take the case to trial; Lafler had followed his attorney’s advice.76 A jury convicted Lafler of multiple charges, including assault with intent to murder. At a post-conviction hearing, the district court denied Lafler’s claim of ineffective assistance of counsel, and the Michigan Court of Appeals affirmed. After the Michigan Supreme Court denied Lafler’s petition for review, he filed a petition for federal habeas corpus. The federal district court agreed that Lafler had demonstrated ineffective assistance of counsel, and the U.S. Court of Appeals for the Sixth Circuit affirmed. The U.S. Supreme Court granted certiorari.77

Because the State conceded that defense counsel’s erroneous advice was deficient performance under Strickland, the Supreme Court focused on the second prong—whether the deficient advice regarding the plea offer had resulted in prejudice. In its analysis, the Court emphasized that Lafler was distinguishable from Hill because “the ineffective advice led not to an offer’s acceptance but to its rejection.”78 The Court held that Lafler demonstrated a reasonable probability that but for defense counsel’s erroneous advice, the defendant would have accepted the plea, the prosecution would not have withdrawn the plea, and the court would have accepted the plea. After determining that Lafler satisfied both Strickland requirements, the Supreme Court then looked to the appropriate remedy and concluded that “[t]he correct remedy in these circumstances. . . is to order the State to reoffer the plea agreement.”79 The Court also noted that “the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed.”80

Writing for the dissent, Justice Scalia expressed concerns with the majority’s holding because, according to him, the Sixth Amendment is limited to ensuring a full and fair trial and does not apply to the plea bargain process.81 Justice Scalia emphasized that a defendant does not have a right to a plea bargain. He was also apprehensive of the remedy

74 Id. at 152 (Scalia, J., dissenting). 75 Id. at 154. 76 Lafler v. Cooper, 566 U.S. 156, 166 (2012). 77 Id. at 161-62. 78 Id. at 163. 79 Id. at 174. 80 Id. 81 Id. at 176 (Scalia, J., dissenting).


outlined by the majority, namely, that violations of a constitutional right should ever be left to a trial judge’s discretion.82

The U.S. Supreme Court’s finding of prejudice in Lafler, involving the rejection of a plea offer based on counsel’s erroneous advice, in a way paved the path for the Court’s finding of prejudice in Lee, involving the acceptance of a plea offer based on counsel’s erroneous advice. Before Lee, in cases in which a defendant had accepted a plea bargain based on misadvice, the Supreme Court either found no prejudice or remanded the case to state court for a prejudice determination. The Court’s holding in Lee is the first time it concluded that a defendant who had entered into a plea bargain based on erroneous advice of counsel satisfied Hill’s requirement to show “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.”83 This leads to our discussion of Lee. IV. Lee v. United States: Proving Prejudice The defendant in Lee v. United States,84 Jae Lee, had moved to the United States from South Korea as a teenager in 1982 and had lived in the United States for 35 years as a lawful, permanent resident. As an adult, Lee had owned and operated two restaurants in Tennessee, but he had also become involved in drug-related crimes. Federal law enforcement officers obtained a search warrant for Lee’s residence after a confidential informant had reported that Lee had sold the informant certain quantities of ecstasy and hydroponic marijuana over an eight-year period. The search yielded ecstasy, of which Lee admitted ownership. Lee also admitted to giving ecstasy to friends.85

Lee was indicted on one count of possessing ecstasy with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).86 This crime was an “aggravated felony” under the Immigration and Nationality Act of 1965,87 for which a noncitizen’s conviction mandated deportation. Defense counsel, however, failed to inform Lee of this fact. When Lee entered into plea discussions with the prosecution, he repeatedly asked his attorney whether he would face deportation, but counsel reassured Lee that he would not. Counsel advised Lee that going to trial would be “very risky,” that he would receive a lighter sentence if he pleaded guilty, and that the Government could not deport him. After Lee pleaded guilty, the sentencing court imposed a prison sentence of one year and a day.88

Upon learning that he would be mandatorily deported after serving his prison sentence, Lee filed a motion to vacate his conviction and sentence due to defense counsel’s ineffective assistance.89 At a hearing on the motion, both Lee and defense counsel testified that “deportation was the determinative issue in Lee’s decision whether to accept the plea.”90 Defense counsel also indicated that he would have advised Lee to go to trial if he had known that Lee would be deported. Although the federal district court concluded that defense counsel’s assistance was deficient, the court found that Lee could not show

82 Lafler v. Cooper, 566 U.S. 156, 180, 184-85 (2012) (Scalia, J. dissenting). 83 Id. at 163 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 84 Lee v. United States, 137 S. Ct. 1958 (2017). 85 Lee, 137 S. Ct. at 1962-63. 86 Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-971 (1970). 87 See 8 U.S.C.A. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii) (2014). 88 Lee, 137 S. Ct. at 1963. 89 See 28 U.S.C.A § 2255 (2008). 90 Lee v. United States, 137 S. Ct. 1958, 1963 (2017).


prejudice. The federal district court reasoned that (1) there was “overwhelming evidence of Lee’s guilt,” (2) a guilty verdict at a jury trial was an “almost certainty,” and (3) a conviction at trial would result in a longer prison sentence than the one imposed after Lee’s guilty plea.91

The U.S. Court of Appeals for the Sixth Circuit affirmed, concluding that Lee failed to show, under Hill, a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”92 The Sixth Circuit stated that Lee had “no bona fide defense, not even a weak one” and that “no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to go to trial rather than take a plea deal with a shorter sentence.”93 The U.S. Supreme Court granted certiorari.

The Supreme Court acknowledged the well-known Strickland test for determining prejudice—a reasonable probability that but for defense counsel’s errors, the result of a trial would have been different—but clarified that in a guilty plea case, the focus is the forfeiture of a proceeding.94 In other words, a court does not look at whether the result of a trial would have been different from the result of the plea agreement. The question is whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.”95

Circling back to its language in Hill, the Supreme Court reinforced its declaration that a defendant can show prejudice by showing a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”96 The Government argued that Lee could not show prejudice because he had no viable defense, surmising that in addition to being convicted at trial, Lee would also have been subject to deportation and a lengthier prison sentence. The Court rejected the notion, however, that a defendant in Lee’s position would have to demonstrate that he would have been better off going to trial.97 Defense counsel’s advice to Lee had had nothing to do with his prospects at trial.

The Supreme Court found defense counsel’s error in this case to be comparable to the error in Hill, in that Hill’s attorney had given erroneous parole eligibility advice during plea negotiations and Lee’s attorney had given erroneous advice concerning the consequences of his guilty plea.98 Although the defense’s likelihood of success at trial can be a strong indicator of whether a defendant will plead guilty, it is entirely understandable that when faced with similarly dire choices, “even the smallest chance of success at trial may look attractive.”99

Giving courts guidance on how to examine the evidence in terms of prejudice, the Lee Court explained that “[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies.”100

91 Id. at 1964. 92 Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 93 Id. 94 Id. at 1964-65. 95 Id. at 1965 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000)). 96 Lee v. United States, 137 S. Ct. 1958, 1965 (2017) (quoting Hill, 474 U.S. at 59). 97 Id. at 1965-66. 98 Id. at 1965. 99 Id. at 1966. 100 Id. at 1967.


Consequently, it is not enough for a defendant to make after-the-fact assertions because there is a strong societal interest in preserving guilty pleas. Instead, courts should look at whether “contemporaneous evidence” substantiates the defendant’s “expressed preferences.”101 The Court found that substantial and uncontroverted evidence supported Lee’s assertion that he would not have accepted a plea if he had known it would result in mandatory deportation. In fact, deportation had been the determinative factor in Lee’s decision.

In Justice Thomas’s dissent, joined in part by Justice Alito, he opined that the majority departed from the well-established two-part Strickland test by allowing a defendant to show that he would have gone to trial but for counsel’s misadvice without also requiring the defendant to demonstrate that “he would likely have obtained a more favorable result in the end.”102 Looking to past precedent, Justice Thomas noted that in the context of establishing prejudice, the Premo Court had described the prosecution’s case as “formidable” and observed that “[t]he bargain counsel struck” with Moore was “a favorable one,” contrasted with what might have occurred at trial.103 This same effect, according to Justice Thomas, existed in Frye and Lafler,104 in which the Court had stated that the prejudice inquiry requires a defendant to establish a “reasonable probability of a different outcome.”105

Justice Thomas predicted that the “decision today will have pernicious consequences for the criminal justice system” and expressed concern that the finality of favorable plea deals is no longer certain, especially in light of defendants’ “relatively low burden” to demonstrate prejudice.106 As a result, a huge influx of challenges to both past and future plea agreements could occur, arguably counteracting the societal interest in preserving pleas. Justice Thomas criticized the majority’s failure to limit its holding to deportation consequences, stating that upcoming cases could allege misadvice on numerous subjects that defendants deem important.107 V. Reflection and Possible Implications of Lee The possible implications of Lee are not yet clear. On one hand, as feared by Justice Thomas in the dissent, Lee could open the floodgates for ineffective assistance of counsel claims.108 For the first time, the U.S. Supreme Court has found prejudice in a case where a defendant entered into a plea bargain.109 Thus, Lee gives defendants additional grounds

101 Id. 102 Lee v. United States, 137 S. Ct. 1958, 1970-71 (2017) (Thomas, J., dissenting). 103 Id. at 1971 (citing Premo v. Moore, 562 U.S. 115, 129 (2011)). 104 Missouri v. Frye, 566 U.S. 134, 147 (2012) (stating that it is “necessary” to show a “reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time”); Lafler v. Cooper, 566 U.S. 156, 164 (2012) (stating that a defendant “must show” a reasonable probability that “the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed”). 105 Lee, 137 S. Ct. at 1973-74 (Thomas, J., dissenting). 106 Id. 107 Id. 108 Id. 109 See Lafler v. Cooper, 566 U.S. 156 (2012) (finding prejudice where defendant rejected plea agreement based on defense counsel’s misadvice).


to argue ineffective assistance of counsel claims. Approximately 95% of felony cases in this country end in plea bargains. As such, state and federal courts’ application of Lee could cause the criminal justice system to experience significant repercussions.110

Because of Lee, it is now clear that with respect to an ineffective assistance claim based on defense counsel’s advice during plea bargaining, a defendant’s likelihood of success at trial is not a relevant factor of consideration. In fact, the Lee Court explicitly rejected the argument that a prejudice determination always requires defendants to show they would have been better off going to trial than to accept the plea.111 Granted, the Supreme Court in Hill and Premo stated that a prejudice determination does not always require courts to examine the defendant’s likelihood of success at trial, but the Court never delved deeper into this rule in Hill or Premo. The Hill Court did not pursue this line of thought any further because there was no contemporaneous evidence to show that the defendant’s acceptance of a plea had been linked to his attorney’s misadvice; therefore, this lack of evidence led to the Court’s conclusion that Hill could not show prejudice. As for Premo, the Court did look at the defendant’s likelihood of success at trial because the defendant’s ineffective assistance of counsel claim involved his attorney’s misadvice relating to evidentiary trial matters—the failure to seek suppression of the defendant’s confession.112 Thus, although the Premo Court made the statement that a defendant’s success at trial need not always be considered in a prejudice determination, the particular facts in the case dictated the necessity of examining the defendant’s likelihood of success at trial. Consequently, although prior to Lee the Court had given lip service to the statement that a prejudice determination need not always include an analysis of trial success, the Court had never applied this rule in a plea bargain case until Lee.

Lee tested whether the Supreme Court was serious about this rule. The extreme facts in Lee demonstrate the extent to which the Court is committed to looking at the basis for a defendant’s ineffective assistance of counsel claim when determining what should guide the prejudice analysis. There was little-to-no chance that Lee would have been acquitted at trial. As Justice Thomas noted in his dissent, there was “overwhelming evidence of guilt” against Lee, and Lee lacked a “bona fide defense.”113 The Court went so far as to reject the prosecution’s request to “adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial.”114

Admittedly, the Supreme Court could have easily discarded Lee’s prejudice claim because his likelihood of conviction at trial and subsequent deportation were, at best, “almost certain,” but the Court did not do so.115 The Court refused to examine the evidence against Lee, emphasizing that his claim of error was “one that affected Lee’s understanding of the consequences of the guilty plea.”116 Because “deportation was the determinative issue in Lee’s decision whether to accept the plea deal,” the Court limited its evaluation of prejudice to whether Lee would have declined the plea if he had known that accepting the

110 Claire Bernish, Due Process is Dead: A Staggering 95% of All Inmates in America Have Never Received a Trial, Jan. 25, 2016, http://thefreethoughtproject.com/due-process-dead-staggering-95-inmates-america-received-trial/. 111 Lee v. United States, 137 S. Ct. 1958, 1965 (2017). 112 Premo v. Moore, 562 U.S. 115, 129 (2011). 113 Lee, 137 S. Ct. at 1974 (Thomas, J., dissenting). 114 Id. at 1966. 115 Id. at 1968. 116 Id. at 1965.


plea would “certainly lead to deportation.”117 Consequently, despite the damning evidence against Lee, the Court focused not on Lee’s prospects at trial but on Lee’s understanding of the plea bargain that ultimately circumvented his right to a trial.

Therefore, under Lee, defendants do not have to show that they would have been better off going to trial where their ineffective assistance claims relate not to trial matters but to defendants’ understanding of the consequences of a guilty plea. This is not a sharp departure from previous Supreme Court precedent, but this clarification appears to expand the grounds upon which defendants can claim prejudice. By actually finding prejudice in a plea bargain case where the defendant accepted a plea and by clarifying the circumstances under which it is appropriate to consider the possibility of success at trial, the Court seems to have opened the door for finding prejudice. The Court’s step forward could arguably lead to new ineffective assistance of counsel claims flooding our judicial system—a system in which the great majority of criminal cases end in a plea bargain. An influx of cases could overload the courts.

On the other hand, despite language in Justice Thomas’s dissent suggesting that Lee will likely open the floodgates to claims of ineffective assistance of counsel and corresponding relief for defendants in the context of plea bargains, there is language in Lee that state and federal courts could use to narrowly interpret its holding. First, courts might find Lee distinguishable because the case involved extreme prejudice to the defendant in the form of a deportation consequence. The Supreme Court recognized that deportation was “the determinative factor” in Lee’s decision to forego trial and accept the plea.118 Lee had repeatedly expressed to defense counsel his concerns about being deported—a dire consequence—and the Supreme Court recognized Lee’s insistence that “he would have gambled on trial” if he had known his guilty plea would lead to deportation.119 Noting that “deportation is always ‘a particularly severe penalty,’” the Court remarked that “preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence.”120 Because of the unique factual situation in Lee, it is possible that other courts will declare that Lee offers relief solely to defendants upon whom immigration consequences fall.

Another reason for a narrow interpretation of Lee is the Supreme Court’s insistence that defendants’ ineffective assistance of counsel claims cannot be based solely on post hoc assertions. Defendants must point to contemporaneous evidence of their reliance on defense counsel’s misadvice in deciding to accept a plea. In Lee, there was no dispute that the defendant’s discussions with his attorney during plea negotiations had centered on his deportation concerns, and, thus, there was contemporaneous evidence pointing to his reliance on defense counsel’s misadvice regarding immigration laws. Lee’s circumstances were contrasted with those in Hill, in which the defendant complained about defense counsel’s misadvice about parole eligibility. The Supreme Court observed that Hill had “alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty.”121 Unfortunately, a defendant’s after-the-fact claims, akin to buyer’s remorse, will not

117 Lee v. United States, 137 S. Ct. 1958, 1967-68 (2017). 118 Id. at 1967. 119 Id. at 1966. 120 Id. at 1968 (quoting Padilla v. Kentucky, 559 U.S. 356, 365, 368 (2010)). 121 Id. at 1965 (quoting Hill v. Lockhart, 474 U.S. 52, 60 (1985)).


suffice.122 These factors—the lack of dire consequences and the lack of contemporaneous evidence—could greatly limit the applicability of Lee.

Ultimately, the full ramifications of Lee are still unknown. The Supreme Court’s finding of prejudice in the context of a defendant’s acceptance of a plea bargain is significant because the vast majority of criminal cases involve plea agreements. Courts might apply a broad interpretation of Lee, which could lead to an influx of cases into the criminal justice system. This, however, is not a foregone conclusion. It is also possible that Lee’s application will be limited because of its unique facts. VI. Conclusion The U.S. Supreme Court’s decision in Lee marks a significant step in its recognition of ineffective assistance of counsel claims. There is a question, however, whether the decision will substantially affect future cases. The Supreme Court’s contemporaneous evidence requirement could understandably prevent the opening of the floodgates on ineffective assistance claims, but this requirement is quite concerning when looking at the situation from the perspective of criminal defendants. The evidentiary requirement could be problematic for defendants because it is doubtful that most defendants will be able to point to contemporaneous evidence showing that they relied upon counsel’s misadvise or were not advised at all about significant consequences of their plea. A large part of the challenge to defendants during the plea-bargaining stage is to make any determinative factor loud and clear, which could be muffled by defendants’ lack of knowledge or legal savvy. How can courts expect defendants to be concerned about specific consequences that would be “deal breakers” during plea negotiations if defendants or their attorneys are unaware of or unclear about such concerns in the first place? Moreover, if defense attorneys do offer misadvice, how are defendants expected to recognize the misadvice and conjure up contemporaneous evidence when they do not even know that there is an issue of concern?

It is of great importance that attorneys educate themselves in order to stay current in their knowledge and understanding of the law, even law pertaining to consequences that might be considered collateral to their clients’ criminal convictions. In his dissent in Padilla v. Kentucky, Justice Scalia expressed the opinion that there is no constitutional right to effective counsel during the plea-bargaining stage, stating that the “Sixth Amendment guarantees the accused a lawyer ‘for his defence [sic]’ against a ‘criminal prosecution[n]’—not for sound advice about the collateral consequences of conviction.”123 Yet there are reasons to be concerned with what happens during the plea process. Plea bargains are used to circumvent criminal defendants’ right to trial. Communications during the plea-bargaining stage are largely confidential and involve discussions solely between defendants and their counsel. There is no third party present to monitor the accuracy of the advice given by defense counsel. At least at trial, other members of the criminal justice system, e.g., the judge and prosecutors, are involved in the process, and a record of the proceedings is readily available; these factors provide a layer of protection for defendants that is not present during the plea-bargaining stage. Although criminal defense attorneys routinely deal with legal issues directly related to the criminal prosecution and sentencing requirements, they may nevertheless not be cognizant of all possible consequences of a

122 Id. 123 Padilla v. Kentucky, 559 U.S. 356, 388 (2010) (Scalia, J., dissenting).


plea deal, including deportation. At a minimum, Lee impresses upon defense attorneys to be proactive and attempt to increase their knowledge and understanding of immigration laws in order to avoid ineffective assistance of counsel issues like those encountered in Lee.

At this point, the measure of Lee’s influence is unclear. More research is needed to discover the after-effects of Lee in state and federal courts. Although some of the Court’s language in Lee appears to provide hope for relief to criminal defendants who rely on faulty legal advice during the plea process, it is yet to be determined whether that will be the end realized by most defendants. Courts could interpret Lee broadly, but they could just as easily take the opposite approach, interpreting Lee narrowly because of its unique facts. The Supreme Court took a significant step in its holding in Lee. It is yet to be seen whether this step will substantially affect criminal defendants and the criminal justice system. Declaration of Conflicting Interests The author declares no potential conflicts of interest with respect to the research, authorship, and/or publication of this article. Funding The author received no financial support with respect to the research, authorship, and/or publication of this article.

Article

___________________________________________________________________________

I College of Juvenile Justice and Psychology, Department of Juvenile Justice, Prairie View A&M University,

Prairie View, Texas, USA

II University of Houston-Clear Lake, Houston, Texas, USA

Corresponding Author: Sesha Kethineni, College of Juvenile Justice and Psychology, Department of Justice Studies, Prairie View A&M University, Prairie View, Texas, 77058, USA E-mail: [email protected]

The authors wish to express their appreciation to the blind reviewers of the original manuscript for their comments, which were helpful during preparation of the final version of the manuscript.

Sesha Kethineni I and Gowtami Rajendran II

Abstract Filial responsibility (duty of care) laws often require adult children to support their elderly and infirm parents. Some states extend this obligation to close relatives. This responsibility may be enforced via statute or morally encouraged as part of religion within a culture. Given the diversity of cultures in America, the duty of care is difficult to define, enforce, and interpret when such cases come to the attention of the courts. Twenty-nine states that currently have statutes related to filial responsibility vary widely in defining the concept and specifying how to enforce the laws. Because many of these involve neglect rather than overt abuse, enforcing filial responsibility statutes presents a unique challenge for the criminal justice system. This article reviews state legislation and scholarly sources to assess the current laws, court decisions, and enforcement issues.

Keywords Elder care, law, judicial decisions, enforcement

Filial responsibility or filial obligation laws create a duty for adult children to care for their indigent parents when the parents cannot afford to pay for such care (Moskowitz, 2001). The support typically includes expenses related to food, clothing, shelter, and medical needs. Although rare, “duty of care” (i.e., the law of negligence) can be expanded to cover indigent relatives. As of 2016, 30 states have filial responsibility statutes. However, there is no uniformity among state statutes on how much or how long the adult children have to

Elder Care in the United States: Filial Responsibility Laws, Judicial Decisions, and Enforcement Issues




provide support and maintenance towards the care of their indigent parents (Harkness, 2014), nor is it clear how to enforce such laws or punish violators. In some states, governmental agencies have applied the statutes, and, in others, private entities such as nursing homes have brought lawsuits against adult children to recover costs for caring for their elderly parents. In addition to failure to fulfill monetary obligations, the duty of care encompasses a legal requirement to avoid causing any harm to another person either through action or inaction. Harm extends beyond negligence and financial exploitation and includes physical abuse and even death. Given that many of these cases come to the attention of the authorities after abuse has occurred, enforcing filial responsibility statutes presents a unique challenge for the criminal justice system. The current study discusses the characteristics of the elderly population, theoretical reasoning, filial responsibility laws, relevant court decisions, and enforcement issues.

Changing Demographics of the United States In the United States, many issues that confront society today are unlike the problems that existed when filial responsibility statutes emanated from the “Poor Laws” of the 16th century (Kline, 1992). Although the primary social institution of the past was mostly the nuclear family, today’s American household is much more diverse. With 50% of marriages ending in divorce and over 6 million households with stepchildren or adopted children in the homes, it is not always clear whose duty it is to care for the parents (Kreider & Lofquist, 2014; Stanton, 2015). Americans tend to value independence, individuality, and self-sufficiency, and adult children taking on the responsibility of caring for their parents is antithetical to the concept of individuality. As more and more women enter the workforce, there is a reduction in the availability of able and willing adult children to care for their elderly parents. In addition to the increased participation of women in the workforce, the elderly population in the United States is also on the rise. Between 2012 and 2050, the older population (65 and older) in the United States is projected to double in size from 43.1 million in 2012 to 83.7 million in 2050. This estimated increase is mainly attributable to the aging of baby boomers (Ortman, Velkoff, & Hogan, 2014). Moreover, the life expectancy for the general population in the United States has steadily increased from 69.77 years in 1960 to 78.8 in 2012 (Kochanek, Murphy, Xu, & Tejada-Vera, 2016; World Bank, n.d.).

The aging of the population and increasing life expectancy will have a significant impact on policy and programs related to Social Security and Medicaid in the future. The old-age dependency ratio1 is expected to increase from 22 in 2010 to 35 by 2030 as the baby boomers generation ages (Vincent & Velkoff, 2010). A significant portion of the elderly population may contract a disease or other physical or mental ailment that will impair their judgment and abilities (Ortman et al., 2014). The increased financial burden and emotional stress of caring for elderly family members sometimes result in mistreatment, which can take the form of financial exploitation, physical/emotional/verbal abuse, and total neglect (Hardin & Khan-Hudson, 2005). Reports indicate that as many as 1.2 million seniors in the United States face mistreatment either at the hands of others or at the hands of themselves (Falk, Baigis, & Kopac, 2012). The question is: do adult children have a duty to care for elderly family members? The following sections provide both the theoretical arguments and legal reasoning behind filial responsibility laws.

1 Old-age dependency ratio = (Population 65 years of age and over/population between 20 and 64 years)*100

70 Sesha Kethineni and Gowtami Rajendran

Theories of the Moral Duty of Care Numerous theories have been advanced to argue, from a moral perspective, that regardless of the statute, adult children should care for their elderly and dependent parents. Although morality is independent of the law, it is important to recognize some of the most common rationales for instituting these binding statutes. The theoretical assumptions fall into one of five categories: duty based on reciprocity, friendship, needs, implicit promise, and the child’s relationship with parents (also known as social goods; Stuifbergen & Van Delden, 2011).

Reciprocity The reciprocity argument states that children owe their elderly parents care and

resources in return for everything that was provided by their parents in the past. Because parents create conditions within which the children exist and allow them to make use of their capabilities, the children should repay this care out of gratitude rather than some calculated debt (Van den Hoven, 2006; Wicclair, 1990). The “broad interpretation of ‘debt’ or on gratitude makes it hard to define corresponding rights of parents” to receive support from their children (Stuifbergen & Van Delden, 2011, p. 64). Because there are no strict duties on the part of children to provide support and there are no corresponding rights to such claims by parents, it is hard to develop effective policies (Stuifbergen & Van Delden, 2011). The friendship model of filial responsibility offers a different view of why adult children should support their elderly parents.

Friendship Another argument asserts that the duty of care emanates from an inherent friendship

bond established in the parent-child relationship. The basis of the filial obligation under this theory is the strength of the current relationship between parent and child, rather than any past favors or obligations. Parents often depend on their children rather than other individuals is because they are emotionally dependent on their children. This emotional closeness provides a moral foundation for the filial obligation (Mills, 2003; Keller, 2006). Some critics contend that unlike friendship where two individuals enter into a voluntary relationship, the parent-child relationship does not conform to this model (Dixon, 1985). Others argue that although friendly feelings are motivators to support their parents, it alone is not the basis for filial obligations (Stuifbergen & Van Delden, 2011).

Need The assumption “if one party is in a position of particular vulnerability to or dependency

on another, the other has strong responsibilities to protect the dependent party,” is proposed by Goodwin (1985, p. 39). In other words, in the eyes of children, elderly parents are the most vulnerable and the vulnerability, in most cases, is emotional rather than financial. Stuifbergen and Van Delden (2011) assert that need alone is not a justification for assuming that adult children should bear the responsibility to fulfill the needs of their indigent parents. They claim that the type of relationship between adult children and their elderly parents should show why adult children “would have a larger than average responsibility to satisfy the needs of their elderly parents” (para. 16).


Promise

There is also a notion that filial obligations are assumed promises (Sommers, 1986). Those who believe in this concept think that because of the nurturing nature of the parent-child relationship, there exists the expectation that parents have a right to care provided by their child. However, parents do not expect any such care; they can only hope their children will assume that responsibility. Stuifbergen and Van Delden (2011) pose a question: “[W]hether fulfilling these obligations and being a good carer is ever possible out of duty alone?” (p. 18). Sommers (1986, p. 450) states that duty and inclination are not mutually exclusive and “having . . . certain feelings and attitudes may be necessary for carrying out one’s duty” to protect those who cannot care for themselves.

There are other theoretical explanations for filial responsibility. Blenkner (1965) introduces the concept of filial maturity and argues that filial maturity occurs when children in their 40s and 50s realize that their parents can no longer provide the supportive role. The adult child now must take on that role for their parents. Social exchange theory, like reciprocity, provides a plausible explanation for filial responsibility by stating that the basis of relationships is the norm of reciprocity. Because parents take care of their children’s needs, children should protect and attend to parents’ emotional and materials needs (Nye, 1979). The following section outlines these norms put into practice through the enactment of filial responsibility statutes and relevant court decisions. Social Goods

Those who defend filial responsibility have also argued that the obligation to parents stem from the special goods of a parent-child relationship, which stems from unconditional love (Mills, 2003). Whereas generic goods can be found in any number of relationships, because there is an interest in each other’s lives (Keller, 2006, p. 264; Stuifbergen & Van Delden, 2011), special goods are unique to the parent-child relationship. The parent-child relationship is the epicenter that connects all of the family relationships (e.g., nephews, uncles, aunts, siblings, and grandparents). This good, having a family that connects to other people in the world, is special and must be preserved by both parties (Mills, 2003). Filial Responsibility Statutes and Major Court Decisions There are many ways by which an adult child may be obligated to support or care for his/her parents. If the duty is voluntary, the adult child has chosen to provide care to his/her dependent parent because it seems to be the right thing to do and because he/she has the means to do so. Parents will often only trust their child as a caregiver, though a significant number of them do request formal care. Sometimes adult children will report feeling uncomfortable about performing specific tasks and therefore do not wish to provide hands-on care but will voluntarily assist in other duties, such as shopping and maintaining the household. The duty may also be assumed through a contractual liability, in which the child often consents voluntarily but usually arises in the form of a caregiver agreement. This arrangement is most common when the parent and child are cohabiting, and the child is providing services like those delivered in a nursing home or other assisted living facility. Under these circumstances, it is common for a parent to transfer his/her assets to the child upon death as compensation. A more complicated liability arises from the obligation of the child to return past assets to cover care for his/her parents. That is to say, if a child has received gifts from the parent, he/she may be required to return those gifts in the circumstance that Medicaid has denied benefits to the caregiver. This situation may also


arise when a nursing home is forced to evict a resident for nonpayment. The primary method of holding an adult child liable for his parents’ care is under a statute.

Common law does not recognize the filial responsibility and the duty of care. It is most probable that the concept of filial duty originated in the United States was inspired by England’s Poor Relief Act of 1601. As recently as the 1950s, 45 states, as well as the federal government, had passed legislation involving the duty of care. However, many of these laws were wiped off the books with the passage of the Social Security Act as familial responsibility turned into a government concern.

This study used systematic content analysis of state legislation, scholarly literature, and legal databases. Included in this study are legislative materials obtained via a search of the National Conference of State Legislatures (NCSL) Website Directory, JUSTIA US Law, and Google databases. We narrowed our search using the search terms “filial laws,” “duty of care” and “elder care.” Then, we used Lexis-Nexis (www.lexisnexis.com) to review elder abuse cases involving family members. This search strategy provided us with state filial laws, sanctions, and civil and criminal cases. Discussed in detail are the six most significant elder abuse cases involving family members.

As of 2016, 29 of the 50 states and Puerto Rico have such statutes, though they vary widely in the definitions (Bulcroft, Leynseele, & Borgatfa, 1989), requirements, and sanctions. (See Table 1 and 2 for a comprehensive listing of statutes related to filial responsibility and significant court decisions.) The remaining 21 states—Alabama, Arizona, Colorado, Florida, Hawaii, Idaho, Illinois, Kansas, Maine, Michigan, Minnesota, Missouri, Nebraska, New Mexico, New York, Oklahoma, South Carolina, Texas, Washington, Wisconsin, and Wyoming—and Washington, DC, do not have filial responsibility laws.

Although 14 states—California, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Montana, Nevada (hospitalization costs), North Carolina, North Dakota, South Dakota, Oregon, Vermont, and Virginia—place the responsibility specifically on children, others extend the duty to spouses, grandparents, siblings, grandchildren, and even decedents. A few states include adopted children (Rhode Island) and illegitimate children (Louisiana) as responsible parties. Other states (Louisiana and Oregon) use the reciprocal duty of parents, spouses, and children to take care of each other when in need. In states such as Virginia and South Dakota, if multiple children are present, they must share the responsibility equally.

Challenges to Enforcing Filial Responsibility StatutesThe enforcement of filial responsibility statutes is far and few between for several reasons. First, some defenses may be presented to avoid financial responsibility. For example, the party seeking enforcement of the statutes must first establish that the adult child had sufficient income to take on the responsibility. Second, if multiple children can provide support, the court can consider each child’s financial situation and determine the amount of support each can offer. This division of monetary support is a daunting task because the courts must evaluate the ability of each child to contribute to the care of their parents. Third, if the adult child can prove that parents abandoned the child, then the courts may not require the child to bear the responsibility. Abandonment laws, however, vary by state. As a rule, the adult child must show one of the following concerning abandonment: 1) it occurred when the child was a minor; 2) it continued for a period of at least two years before the child became 18 (in some states 10 years of abandonment); and 3) the parent was physically and mentally able to support the child. Often courts reduce the amount of


financial responsibility on adult children based on past bad acts such as failure to provide child support and past treatment of the child (The National Consumer Voice for Quality Long-Term Care, n.d.). On the political level, it does not make sense to use state resources to prosecute an offender whose crime will probably not generate much money in return.

Failure to provide care to elderly and/or indigent parents is not always a criminal offense. Twelve of the 29 states make such a violation a misdemeanor (see Table 3), which typically carries a sentence of no more than a year in jail, whereas others consider it a civil violation or contempt of court. Only three states (Kentucky, Ohio, and Oregon) could charge someone with a fifth- or fourth-degree felony, a Class C, or Class D felony for flagrant nonsupport of filial responsibility. A Class C felony in Oregon carries a maximum sentence of five years. A Class D felony in Kentucky could result in a sentence of one to five years in prison, whereas a fifth-degree felony in Ohio could lead to a jail term of six months to a year.


Criminal Cases Although many cases that fall under filial responsibility law result in misdemeanor charges, courts have applied criminal negligence to prosecute family members for failure to provide necessary care, such neglect resulting in severe injury or death. Table 4 contains a list of significant criminal cases of elder abuse, corresponding charges, and sanctions. In Davis v. Commonwealth of Virginia (1985), the Virginia Supreme Court considered two main issues: 1) whether Mary Davis had a duty to care for her mother, Emily Carter, and 2) whether she breached that duty to the extent that it constituted criminal negligence. The facts of the case: when paramedics responded to a call from a house occupied by Davis and Carter, they found Carter lying in bed, and her vital signs were unstable. She also had multiple rib fractures, skull lacerations, low body temperature, and signs of severe malnutrition. A few days later she died. Although Davis argued she has no legal duty to care for her mother, the court disagreed, citing that Davis accepted sole responsibility to care for her mother by agreeing to live at her mother’s house without charge and sharing her Social Security. The appellate court affirmed the trial court's finding of breach of duty and callous and reckless disregard of Carter’s life. Davis was convicted of involuntary manslaughter and sentenced to 10 years of imprisonment (JUSTIA US Law, n.d.-a).

In Billingslea v. State of Texas (1989), the appellant, Billingslea, was charged with injuring an elderly person. The jury found him guilty and imposed a 99-year sentence. The Court of Appeals overturned the jury’s verdict. The state petitioned for discretionary review. The Court of Criminal Appeals, with final appellate jurisdiction in criminal cases, considered


two issues: 1) “whether the court of appeals erred in holding that the indictment charging the appellant was defective because it did not allege a statutory duty to act”; and 2), whether the Court of Appeals erred because the defendant has no statutory duty to act (JUSTIA US Law, n.d.-b, para. 2). The facts of the case are that Mr. Billingslea, his wife, and his son lived with his 94-year-old mother, Hazel Billingslea. Hazel’s granddaughter, Virginia Billingslea, complained to her mother, Katherine, that her uncle, Mr. Billingslea, would not let her see her grandmother. After receiving a complaint from Katherine on April 20, 1984, Dallas police officers and people from adult protective services visited Hazel Billingslea’s home. They noted severe bedsores, burns, and blisters, and loss of muscle as a result of prolonged neglect. The state filed charges against the defendant under Penal Code Sec. 22.04. However, at the time, the section covered only offenses against children. In September 1981, the legislature added individuals 65 or older to the law. Although the state contended that the duty of care need not be included in the statute to apply in this case, the appeals court disagreed. The statute merely states that omission is an offense without clearly explaining what constitutes it and what is the corresponding duty to act. The appellate court reversed the conviction.

Between 1992 and 1994, the state of California reviewed two cases: People v. Manis (1992) and People v. Heitzman (1994). In People v. Manis, the state charged the defendant with a felony of endangering the health of an elderly person that, under the circumstances, was likely to produce great bodily harm or death. The facts of the case: Janis Olson Manis,


the appellant, lived with her 79-year-old mother, who was dying from starvation. When she was brought to the hospital by paramedics, the emergency room doctors noted that it was the worst case of dehydration and neglect they had ever seen. The jury convicted her, and she received probation and 100 days of a jail sentence. On appeal, the appellant claimed that the statute was vague in failing to provide appropriate notice. She also argued that the law violate the due process rights of an elderly person who might prefer to neglect the medical care. The Appellate Court affirmed the lower court’s decision.

In People v. Heitzman (1994), the appellant was charged with willful neglect of an elderly person and permitting the person to suffer pain (felony criminal liability). The victim, a 67-year-old Robert Heitzman, Sr., lived with his five sons. When police entered the house, they found him dead with ulcers, a yeast infection in the mouth, heart failure, pneumonia, and hepatitis. One of the sons, Jerry Heitzman, was the primary caregiver for his father. In the past, the defendant Susan Heitzman lived in the home and had been the primary caregiver. One year before the incident, she moved away but visited the family. She visited the home, six weeks prior to the death, and told her brother to take their father to the doctor. Susan visited the house several days before her father’s death. Although she was not the primary caregiver, the prosecution contended that the duty of care under section 368a extended to every person and that they had a responsibility not to permit an elderly parent to suffer unjustifiable pain. The trial court dismissed the charges. The Court of Appeals reversed the trial court’s decision. The defendant requested a review of the Court of Appeals’ decision. She challenged the statute (Penal Code 368a) on constitutional grounds that she does not have a “special relationship” with the individuals alleged to have abused the victim. The Supreme Court of California reversed the decision of the Court of Appeal.

In People v. Simester (1997; Illinois), the defendant and co-defendant, Janice and Dale Simester, respectively, were found guilty of two counts of criminal neglect by failing to perform acts necessary to maintain or preserve the life and health of an elderly or disabled person. The facts of the case: the defendant lived with her 74-year-old uncle, Stanley Pierzga, and her parents. After her parents’ death, she continued to live with and provide care for her uncle. When paramedics arrived, the victim was lying on the floor in a fetal position. The room was filthy, and his clothes were urine soaked. Illinois has no filial responsibility statutes; the state prosecuted the defendants under 720 ILCS 5/12-21-a (2) and (3) (Illinois General Assembly, 2012). They contended that the statute was vague and therefore unconstitutional. Furthermore, they argued that it violates due process because there was no advance notice of the statutory requirement that such conduct is forbidden. The Appellate Court of Illinois affirmed the judgment of the circuit court of Cook County because the defendant did not provide evidence to support the claim that the trial courts erred in failing to give instructions to the jury “which defined knowledge, intent and mistake of fact” (FindLaw for Legal Professionals, n.d., para 33).

In the State of Ohio v. Flontek (1998), the defendant, Lenore Flontek, and her mother, Rosella Flontek, lived together. When the defendant was laid off from her job, she used her money and her mother’s money to make substantial improvements to her mother’s home. The defendant found her mother in the bathroom sitting on the toilet and not responding. She called 911 and took the mother to the hospital, where she died. The hospital staff noticed an odor coming from the body and saw untreated cataracts of the eyes and broken bones. The trial court found her guilty of aggravated third-degree felony and failure to provide support. The court convicted her of manslaughter and gave her 2 to

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20 years as well as six months for nonsupport, sentences to run concurrently. The appellate court reversed her misdemeanor conviction because state law only requires financial support for his or her dependent parents and lack of medical care or attention alone is not sufficient to convict someone. Because her death was a proximate result of the commission of misdemeanors, the appellate court reversed the felony conviction. These cases demonstrate inconsistencies in state legislation as well as courts’ interpretation of those laws.

ConclusionsFilial responsibility laws have presented a unique challenge for the criminal justice system for several decades. Although 29 states have filial responsibilities statutes, there is little uniformity in interpretation and enforcement. These laws place the duty of care for indigent parents on adult children, who are required to provide food, clothing, shelter, and in some cases, medical care. Filial responsibility laws, rooted in the English Poor Laws of 1601, aim to provide adequate care for elderly persons who cannot care for themselves (Moskowitz, 2001). Violation of these statutes generally carries a civil penalty. However, some states consider a failure to fulfill the obligation a criminal offense. Despite recent efforts to increase awareness of these laws, the issue of elder abuse is not a top priority for most states, allowing the hidden abuse to continue.

Critics of these laws claim that filial responsibility laws are ineffective in addressing the needs of elders and enforcing them will unnecessarily burden the families who must provide long-term care (Sketchley & McMillan, 2014). Others have recommended accessible dwelling units (ADU), which would allow elderly parents to live in their home but within the proximity of their children. Such an arrangement is mutually beneficial because the adult children can receive “child care, good advice, and love from their parents without the inconvenience of sharing their homes” (Brinig, 2015, p. 1). Some even compare elder abuse to intimate partner violence and suggest that prosecutors should avoid putting elder abuse victims on trial (Kohn, 2012).

In the United States, the healthcare system is heavily affected by the elderly population. More than 33% of all healthcare dollars in the United States are directly related to medical care for elder Americans, mainly due to the higher presence of chronic conditions and disabilities. Treating elderly patients is almost four times as expensive as treating middle-aged patients. Also, older patients utilize health-care services two to three times more than younger patients because of a lack of preventative care. Preventative care for the elderly receives little attention, despite an emerging focus on new models of general preventative health care. The emphasis on the traditional “disease-based” model, in which healthcare professionals treat illnesses rather than prevent them from occurring, contributes to the exceptionally high cost of treating older patients. Thus, the overall costs and levels of care required are much higher than the cost of providing preventative care. Even if physicians use more holistic treatment methods, insurance companies have not caught up with this shift in healthcare. Some private insurance companies have shifted their reimbursement structure to an outcome-based system in which preventative visits are encouraged. However, Medicare does not reimburse physicians for patient visits without an identifiable medical complaint. Such practice can increase the burden of care for family members who must advocate for the coverage of routine check-ups by Medicare, the predominant government insurance for elderly persons.


With the elderly population rapidly increasing, the impact felt by the healthcare system and those responsible for providing care will become more apparent. There is a high proportion of services provided for which the physicians cannot bill insurance companies because they are not considered “face-to-face” interactions. The result is that there is little incentive for physicians to specialize in geriatric care. To effectively treat elderly patients and make their care most cost-effective, health care is moving away from a fragmented system to a more integrated and coordinated method of care. This “medical-home” model will create an all-inclusive environment in which nurses, social workers, physicians and other clinical professionals work in harmony to develop a more thorough and cohesive plan of care. This more efficient system of healthcare delivery will ease the burden on those responsible for the care, potentially decreasing cases of negligence regarding elderly family members.

The Affordable Care Act attempted to close the gap in Medicare coverage that prevented many from receiving preventative care and necessary medications. Despite new policies, there are still many limitations of the Medicare system and discrepancies in coverage. Medicare does not cover social support, rehabilitation services, or in-home care unless it is in direct conjunction with a hospital visit. The reality is that financial constraints often drive decisions made by older individuals or their caregivers. Paying for prescription medications, mental health treatment, transportation, and lost wages of caregivers can cause care of elderly family members to be compromised. Furthermore, nonmedical home care is an out-of-pocket expense that imposes an additional financial burden on family members. Recently, some states (Idaho and New Hampshire) repealed their filial responsibility laws. Idaho, for example, repealed its filial law in 2011 stating that it was obsolete and that it could potentially confuse those who intend to apply “for public benefits or nursing home care” (Pearson, 2013, p. 277). The New Hampshire state law, H.B. 481, approved on July 10, 2013, eliminated the statutory basis for an adult child to provide support for his/her parents. Also, the law limits the liability of parents for the support of their adult children (Marshall, 2013). Similar legislation was introduced in Pennsylvania to limit the filial responsibility (Begley & Jeffreys, 2017). To address filial care, elder abuse, and the impact of these laws on caregivers—psychologically, emotionally, economically, and morally—policymakers must include bioethicists, social scientists, health care professionals, legislators, and social workers to develop best practices.

Declaration of Conflicting Interests The author declares no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding The author received no financial support with respect to the research, authorship, and/or publication of this article.

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Pearson, K. (2013). Filial support laws in the modern era: Domestic and international comparison of enforcement practices for laws requiring adult children to support indigent parents. Elder Law Journal, 20, 269–314.

Sketchley, T., & McMillan, C. (2014). Filial responsibility: Breaking the backbone of today’s modern long-term care system. St. Thomas Law Review, 26, 131–163.

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Book Review

___________________________________________________________________________ I Department Criminal Justice, University of Central Florida, Orlando, FL, USA. Corresponding Author: Lee E. Ross, Department of Criminal Justice, University of Central Florida, College of Health and Public Affairs, 12805 Pegasus Drive, Orlando, FL 32816-2200, USA Email: [email protected]

Book Review: Paul Butler, “Chokehold: Policing Black Men”, The New Press (2017) Lee E. Ross I

For many African-Americans the mere mentioning of the term chokehold invokes unpleasant memories of the late Eric Garner, who yelled repeatedly ‘I can’t breathe,’ before dying at the hands NYPD police officers. The New York medical examiner’s office ruled Garner’s death a homicide, caused by compression of the neck (chokehold), compression of the chest, and prone positioning during physical restraint by the police.

In his latest book, Paul Butler, a former federal prosecutor and current professor at Georgetown University, also uses the term ‘chokehold,’ but explores it through the lens of black men as a euphemism to describe the lethal effects of societal racism and how American inequality is imposed. According to Butler, the chokehold is carried out in various steps and works through state imposed violence—such as the way communities of color are policed. As a tool of oppression, it is also reflected in the profiling of Muslim Americans, the surveillance of poor women receiving government benefits, the appropriation of Native American lands, the exploitation and deportation of undocumented Latino workers, police and private violence against transgender people of color, and sex trafficking of Asian women.

Comprised of eight substantive chapters, preceded by an introduction (Broke on Purpose), Butler lays out the legacy of how our criminal justice system has treated people of color, especially young black males. Chapter 1: Constructing the Thug, explains the first step in the chokehold, where American society falsely assumes that every black male is a criminal. Given the proliferation of racial stereotypes, implicit biases, and public perceptions of crime and violence, Butler is apt to remind readers that the vast majority of African-Americans are law-abiding and not nearly as dangerous as perceived.

Chapter 2, titled Controlling the Thug, is what Butler describes as the second step in the chokehold. This step represents the transformation of anxiety about black men into law

Journal of Criminal Justice and LawVolume 2, Issue 1 (2018)

©University of Houston‐Downtown

Lee E. Ross

and policy intended to contain and control them. Moreover, Butler maintains that the chokehold is the reason why the United States has one of the largest and most punitive criminal justice systems in the history of the world, as its methods of defining, investigating, and punishing are centered on African-American men. Whether through hard stares, beat downs, or the continuum of force, police have been given what Butler refers as ‘super powers’ (resulting from various court decisions). Included among these ‘super powers’ are powers to kill (Scott v. Harris), arrest (Atwater v. Largo Vista) and racially profile (Whren v. United States). While praising Michele Alexander and others who have focused on mass incarceration, Butler notes that an arrest precedes incarceration and is an even bigger focal point, adding that the purpose of an arrest is not necessarily to establish guilt—but to place someone under government surveillance (p. 61).

Perhaps Chapter 3, Sex and Torture: The Police and Black Males, is most controversial and strains credibility. The central thesis originates from a 1954 police manual which reads:

‘the officer must feel with sensitive fingers every portion of the prisoners’ body. A thorough search must be made of the prisoner’s arms and armpits, waistline, and back, and groin areas about the testicles, and entire surface of the legs down to the feet’ (P. 81).

These searches are possible through stop and frisk practices, described by Butler as brutal assertions of police dominance on the streets, communicating to African-American men through ‘the ways of feeling a black man—sexual harassment, torture, and even terrorism—that they are objects of disdain by the state.’ Rationalized through the war on drugs and promoted through promises of increased public safety, these searches are court sanctioned and defended under the guise of reasonable suspicion. The intersectionality of race, gender, implicit bias, and the widespread availability of guns tends to insulate police from claims of excessive force, and illegal seizures—whether detentions or killings—from judicial scrutiny. Consequently, U.S. cops are allowed to shoot and kill if they reasonably believe that someone is about to shoot them, and police in the United States probably face deadly force more than cops on some other countries (p. 56). Consequently, police searches and seizures—including those characterized as harassment, sexual assaults, and torture,—are sanctioned under an officers’ perception of imminent danger. Sadly, black males are more likely perceived as dangerous. Perhaps Butler could have simply stated: show me a cop whose perceives himself in imminent danger by a black man and I will show you a cop prone to use deadly force.

Despite objections by some African-Americans, in fear of airing [our] dirty laundry, Butler felt compelled to highlight the complicity of black-on-black crime in Chapter 4: Black Male Violence: The Chokehold Within. Butler argues that black male violence is a much a symptom of the chokehold as brutal police violence and mass incarceration. While black-on-black crime is a problematic term for Butler, he regards it as legitimate and important to address because it feeds into mass incarceration. Although less likely arrested for rape, African American males are disproportionately over-represented as both murders and homicide victims. Still, in a section titled: False equivalence: police violence versus black male violence, Butler refuses to play the ‘violence card’ by equating the two. He notes that cops are agents of the state and when police shoot unarmed blacks, they almost always get away with it. Conversely, when African-Americans commit homicide, they are usually prosecuted, convicted, and sentenced to long years in prison, which adds to the chokehold and is one of the main reasons U.S. prisons are filled with black men. For Butler, there is


a categorical moral difference between antisocial conduct that is harshly punished on the one hand and authorized violence by the state committed with impunity, on the other hand (p. 126). Although well intentioned, one problem with this argument is that most would not diminish violent crime as merely ‘antisocial conduct.’ Even more, Chapter 4 fails to adequately address the magnitude and complexity of domestic violence within the black community, which is also mostly intra-racial. Like sexual assault in general and intimate partner violence in particular, many of these crimes are not reported. And when reported, they do not necessarily result in prosecution and conviction, as these crimes are classified as either first or second-degree misdemeanors and are frequent subjects of deferred prosecutions. However, if penalties for domestic battery were enhanced, it would considerably strengthen Butler’s chokehold thesis.

Chapter 5: Do The Brothers Need Keepers: How Some Black Male Programs Perpetuate the Chokehold? is more on an indictment on exiting efforts to address crime within the black community. Moreover, even programs endorsed by former President Obama and the federal government focused almost exclusively on black men and tended to render invisible the plight of African-American women. He argues that these programs embrace the concept of ‘black male exceptionalism’ (where they are worse off than others) and rest on a false premise that reinforces the chokehold. Refusing to embrace the label of black males as endangered species, given its corollary to animal like tendencies, Butler argues that Black women are also in a state of crisis as well since most share the same environment as black males (152-153).

Appreciating the oppressive and unrelenting effects of the chokehold, Chapter 6 is pessimistically titled Nothing Works: Why the Chokehold Cannot be Reformed. Here, Butler presents a number of interventions, policies, and approaches to alleviate the vice-like grip of the chokehold. But in doing so, he identifies considerable ‘tensions’ between how to define the problem and where solutions lie. Should we focus be on black male behavior, police under-enforcement and over-enforcement, police community relations, anti-black racism and white supremacy, or civil rights versus Black Lives Matter Movement? To appreciate the complexity and inter-connectedness of these issues, Butler introduces a few elements of critical race theory to further illustrate the reality of the chokehold, concluding that the country must be ‘re-made’ if it is to achieve racial equality. In a section titled ‘racism is never going away’ Butler quotes critical race theorists Devon Carbado and Daria Roithmayr as saying ‘racial inequality is hardwired into the fabric of our economic and political landscape.’ Butler also cites Derrick Bell and others to emphasize that racism represents an integral, permanent, and indestructible component of American democracy. These messages are certainly counter to the optimism of former President Obama’s vision of a post-racial or color-blind society. The last two chapters take readers in a direction where change is possible.

Chapter 7 (referred to by Butler as the nightmare chapter) is titled If You Catch a Case, Act Like You Know. Speaking as a former prosecutor, Butler offers learned advice on how to manage the criminal process. His warning to black males is that ‘cops are eager to catch you and looking for reasons to stop you” (p.201). He identifies things police are looking for, including some that are obvious and others that are not so obvious. His advice includes what to do if stopped and arrested, who to call, public versus private defenders, communicating with attorney, going to court, whether to snitch, and whether to plea. Like any responsible parent, Butler provides some useful and thoughtful advice to help prevent one’s daydreams from becoming a living nightmare. For example, to lessen chances of a

Lee E. Ross

police encounter, he advises not to drink alcohol or smoke weed in public and communicate respect when stopped by police. Interestingly, Butler notes that ‘a stop is [really] a masculinity contest between you and the police. You must let the cop win’ (p. 205). When arrested, do not talk. Do not admit to anything other than what can be found on your driver’s license. Other advice includes the usual: if possible, call a lawyer right away, gather witnesses to the incident, and have your love ones show up for your arraignment. While some might regard this advice as common sense, Butler appears reasonably convinced that most (first-time arrestees) would not know how to handle themselves in these situations. Overall, some of this advice is a carryover from his earlier work “Let’s Get Free: A Hip-Hop Theory of Justice,’ which detailed his being falsely arrested and charged—but ultimately acquitted.

The concluding chapter titled Unlocking the Chokehold promotes and espouses a type of revolution that must occur if ‘the bothers’ (for the most part) are to break the chokehold. To that end, Butler proposes a number of ideas (mostly recycled ones) along the lines of abolishing prisons, 20-year maximum sentences, alternatives to incarceration, not calling police when surviving a violent incident, decriminalizing low-level offenses, continued use of civil rights legislation, and supporting the Black Lives Matter Movement.

As an African-American reader of Chokehold: Policing Black Men, one cannot help but to emerge with an increased sense fear for their children, having to be ever vigilant and mindful of how the system targets people of color. When certain people are caught up in a system that is both suffocating and inescapable, ‘chokehold’ is certainly a suitable and appealing description for this state of affairs. However, despite its appeal, this book has a few glaring shortcomings; the most noticeable is that it really speaks more so to the plight of African-American males, with only occasional references to other ‘people of color’ who are also caught in this chokehold. In addition, there are many other paradigms, concepts, and practices that could have been used in lieu of ‘chokehold,’ to describe this state of affairs. Butler could have easily substituted ‘chokehold’ with critical race-theory, critical legal studies, structural inequality, societal oppression, the prison industrial complex, mass incarceration, or perhaps peculiar exceptions to the 13th Amendment. In a sense, the term ‘chokehold’ captures some of these terms and practices, but each is neither thoroughly explored nor given the attention each deserves.

As a law professor, it is not surprising that much of Butler’s research results from criminal cases and law journals (spiced with heavy doses of rap music and popular culture as an overture to a much younger generation who might comprise his intended audience). However, much of the literature, landmark cases, and system’s data (though widely scattered) are already well known by most scholars of race, crime, and justice. For instance, the literature on racial disparities in the criminal justice system have been a focal point of race, crime, and justice literature over the last 40 years. There are myriad scholars within the disciplines of criminology and criminal justice (i.e., African-American Criminologists and Sociologists) whose contributions would have added much needed scholarly rigor to Butler’s thesis. This would include the works of W. E. B. Du Bois, Daniel Georges-Abeyie, Darnell F. Hawkins, Helen Taylor Greene, Shaun Gabbidon, Coramae Richey Mann, William Julius Wilson, Boko Agozino, and Vernetta D. Young, among countless others. Surprisingly, none of these criminologists are cited in this book, which is disappointing.

Aside from this missed opportunity, somewhere along the way, Butler forgets that blacks are not a monolithic entity and that bi-racial and multi-racial are real constructs. Yet,


there is no mentioning of how multi-racial (or even bi-racial) blacks fare in the system. Moreover, Butler fails to critically analyze the complicity of black officers, black defense attorneys, black prosecutors, and black judges who also feed into the ‘chokehold’ that results in mass incarceration? Their obvious complicity appears overlooked, ignored, and perhaps unwittingly condoned—but for no apparent good reason.

Overall, the spirit of this book is alive and well and it is certainly a thought-provoking and interesting read. However, Chokehold: Policing Black Men appears to cater to a specific audience and might fall short of the transformation the author envisions. For all the discourse about diversity and shared oppression with other persons of color, the mentioning of Latinos, Muslims, and women gradually lessens with each succeeding chapter and detracts from Butler’s complex concerns of creating revolutionary change. At times, even his reliance of rap and hip-hop artists demonstrates great intent and social consciousness—but some of the chosen lyrics are impractical to implement. For instance, Butler includes the lyrics of Nas and Lauryn Hill who sang:

“If I ruled the world, I’d free all my sons. I’d open every cell in Attica and send them to Africa.” Undoubtedly, these lyrics are well intentioned and idealistic—but are potentially

problematic as they offend the families of back-on-black homicide victims. Realistically speaking, these artists would not want to set free someone who killed their relative. But readers get the point. These exceptions are but one example of Butler’s failure to appreciate the complexity of criminal justice reform required to achieve the change and desired transformation that he and the rest of us so desperately seeks. Nonetheless, I believe Chokehold: Policing Black Men merits the status or ‘required reading.’ However, such readings should be done through a critically objective lens.


EditorKevin Buckler, University of Houston-Downtown

Editorial BoardJames Acker, University at Albany-SUNYBarbara Belbot, University of Houston-DowntownDavid Brody, Washington State UniversityRolando del Carmen, Sam Houston State UniversityBarry Feld, University of MinnesotaJames Frank, University of CincinnatiJoy Pollock, Texas State UniversityChristopher Smith, Michigan State UniversityCassia Spohn, Arizona State UniversityMichael Vaughn, Sam Houston State UniversityJeffery Walker, University of Arkansas at Little RockJohn Worrall, University of Texas at DallasMarvin Zalman, Wayne State University

URL: www.uhd.edu/jcjl

Editorial PolicyJCJL will be a peer-reviewed journal devoted to the study of legal issues in criminal justice and criminology. Manuscripts dealing with any of the many issues in criminal justice and criminology that in some way touch on the law are welcome. Empirical studies, qualitative studies, and doctrinal legal studies are all acceptable.

Essays on appropriate topics will also be accepted. The goal is to provide an outlet that has as its primary focus manuscripts dealing with legal issues in criminal justice and criminology.

Journal Format and Publication Schedule JCJL will be an online journal initially, with plans to evolve it into a printed journal as soon as circumstances

permit. It will be published two times a year initially, and move to four issues per year as submissions warrant. The first issue is scheduled to appear in January 2017.

Manuscript SubmissionsWe are now accepting manuscript submissions. Manuscripts may be sent to: [email protected]. Manuscripts should

be in Word, be no more than 30 pages in length (including tables, figures, and references), with the little at the top of the first page. Include a separate title page, with maximum 150 word abstract, and author contact

information. Social science (APA) and legal citations (footnotes) are both acceptable.

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