Sunday, April 26, 2015

Determining Depravity: Can Evil Be Legally Defined?

For nearly two decades, forensic psychiatrist Dr. Michael Welner has sought a way to help jurors, judges and prosecutors make more informed decisions in cases involving "heinous" crimes. Now, he is asking the public to help refine an instrument with potentially far-reaching implications on the United States legal system.

Since 1998, Dr. Michael Welner has worked on "The Depravity Standard," an instrument designed to weigh and differentiate crimes based upon several factors, including actions, intent and victimology. 

By: James Swift
In 1976, the holding in Gregg v. Georgia brought a four-year moratorium on capital punishment in the United States to an end.

By a 7-2 vote, the Supreme Court upheld the constitutionality of the state's criteria for death penalty crimes. Among a set of 10 aggravating factors Georgia used at the time included the qualifier that the crime committed was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim."

In the court opinion, however, Justice Potter Stewart identified a structural problem that, to this day, remains unresolved in the United States judicial system. While "vile" and "inhuman" acts can be weighed as sentencing factors in criminal cases, there is no nationally codified definition of what makes a crime "evil" or "heinous."

To help jurors, Stewart said standards were direly needed.

"The problem of jury inexperience is alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the state, representing organized society, deems particularly relevant to the sentencing decision," he wrote. 

It was not long before Georgia's vaguely-defined "depravity" aggravator was once again argued before the nation's high court. In the 1980 case Godfrey v. Georgia, the Supreme Court overturned a death sentence on the grounds that the state's capital crime criteria was too nondescript.

"A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman,'" Stewart penned in the majority opinion. "Such a view may, in fact have been one to which the members of the jury in the case subscribed to. If so, their preconceptions were not dispelled by the trial judge's sentencing instructions ... these gave the jury no guidance concerning the meaning of any of [Georgia's] terms. In fact, the jury's interpretation of [Georgia's code] can only be be the subject of sheer speculation."

Thirty-five years later, forensic psychiatrist Dr. Michael Welner said the U.S. legal system has not gotten any closer to ironing out concrete definitions of what terms like "hideous" and "inhuman" actually mean.

“States attempt to define the terms in their own way, but the definitions are inconsistent and sometimes define ambiguous terms like 'heinous' with other vague terms such as 'cold,' or with descriptors that do not enable one to distinguish a most severe crime group,” he said. "Is that really fair, let alone an accurate, depiction of depravity in murder?"

Setting a Standard

Welner, founder of the peer-review practice The Forensic Panel, has examined a litany of notorious cases. Among those he has assessed have been Andrea Yates, who drowned her five children in a bathtub in 2001, mass shooter Richard Baumhammers and convicted terrorist Omar Khadr.

"Forensic scientists, psychiatrists, pathologists, criminalists, as well as the community of investigators, attorneys and judges recognize that every crime differs from all others in how severe or benign it is," he said, "yet courts continue to struggle over how to distinguish the worst of crimes."

Since 1998, Welner has been revisiting, revising and revamping something he calls "the Depravity Standard" -- a set of roughly two dozen items that paint a clearer portrait of the elements that make a crime "heinous."

"Applying the Depravity Standard will involve scrutinizing the evidence file of a particular case and developing the investigative followup," he said, "probing and confirming the presence or absence of any of the 25 components of intent, actions, victimology and attitudes of the Standard."

The Standard does not just measure actions -- such as prolonging a victim's suffering during an attack -- that can be considered "depraved." It also factors in the overarching reasons for why a crime was committed (such as fame-seeking or arousal), who is chosen as a victim (such as in terrorist attacks and racially-motivated crimes) and the victimizer's emotional response to the crime (such as indifference or projecting blame onto others.)

To define the items, as well as develop methodological data for each phase of research, Welner has worked alongside an advisory board consisting of more than 50 professionals across 16 legal and scientific disciplines.

In reviewing hundreds of murder, sex crime and violent felony cases, Welner said only a few involved more than seven items.

"A depraved crime demonstrates more items of the Depravity Standard to be present, and in particular, those items that have the greatest weight," he said. "Many crimes have no items present at all, and that is precisely in keeping with the research goal ... for delineating the exceptional crime, rather than highlighting the unremarkable one."

When he began working on the model 17 years ago, he said he only sought to demonstrate that a societal consensus of the elements of a depraved crime could be achieved. However, as research has progressed, he said the degrees of depravity have been "magnified."

"We have refined the definitions of each of those items so there is clear guidance and examples of when a crime does or not qualify for a given item," he said. "Along the way, we recognized that a Depravity Standard for murder may not be identical to the standard needed to assess sex crimes, or non-violent crimes, for their level of depravity relative to comparable offense."

Why are the Definitions Needed?

Today, Welner said prosecutors have "unguided discretion" when it comes to determining which "heinous" crimes should qualify for harsher sentences. The end result, he said, is a legal system prone to sentencing bias.

"In the current American justice system, if the prosecutor decides to argue that a crime is depraved, that prosecutor only has to appeal to a juror’s gut reaction," he said. "That prosecutor does so before a jury with little reference point to compare that crime to ... if you have never had to study a murder before, and have to take in the painful details, you may be inclined to think any murder is depraved."

With the standard in place, however, he said prosecutors would have to prove more specific elements of a crime than general "depravity" or "inhumanity," such as demonstrating that a defendant aspired to create maximum damage or exploited a trusting victim.

"Thus, the Depravity Standard in criminal prosecutions will force sentencing decisions to transcend visceral reactions, and will refocus jurors away from prejudices about a defendant’s background, ethnicity, gender, history or socioeconomics," he said, "and to guide consideration of depravity based on evidence of the crime alone."

In unusually extreme cases -- the types that most frequently result in death sentences -- he said the standard establishes "research-based wherewithal" for greater accountability and punishment.

"For crimes that are overcharged by zealous prosecutors, there would be accountability to ensure that a defendant does not get steamrolled in the face of evidence that proves to be unremarkable," he said. "The Depravity Standard is 'non-denominational' that way ... both prosecutors and defense attorneys will have reason to enthusiastically embrace it, as will courts who gain more guidance in sensitive decision-making."

The standard, he added, is not just for use as a front-end sentencing instrument. He also said it could easily be applied as a tool to guide leniency, providing a better "back-end" gauge for who should and should not be pardoned or granted early release.

"The Depravity Standard takes extremely sensitive decisions of life and liberty," he said, "and compels a data-driven process, rather than unguided and easily manipulated impressionism."

The Importance of a Knowledgeable Public

So far, Welner said the biggest challenge to fine-tuning the Standard has been the "natural passivity" of Americans towards the judicial system.

"No legal reform has ever respected the general public enough to so directly involve [them] in the nuances of weighing aspects of evidence to make policy, such as we have tried to do with the Depravity Standard research," Welner said. "So people aren't used to the opportunity to directly impact justice."

Any definition of "depravity," he said, needs to backed by popular consensus. To further refine the instrument, he has invited the public to share their thoughts in an online survey.

"Any one of us can be arrested, or have a loved one arrested, and held accountable in ways that we ought to feel are fair," he said. "In my opinion, we are more invested in a system and have more confidence in laws that we have a hand in shaping ... American justice should reflect American preferences."

While it may be difficult to confront the disturbing realities of violent crime, Welner said the research project is incomplete without citizen input.

"Public feedback from earlier surveys enabled us to actually rank which were the most depraved components of crime." he said. "The fascinating current public surveys are pivotal to our being able to develop a formula for actually assigning a numerical weight to a particular crime."

Furthermore, he said the Standard gives Americans an opportunity to personally influence the national legal system's oft-criticized processes.

"For all the protests we see from seekers of justice and social justice, people are so used to having laws written for them by an unseen hand," he said. "It need not replace the half hour you spend at a protest or writing a letter, but I guarantee it will have more impact."

The Philosophy of Evil

While creating the items listed in the Depravity Standard instrument, Welner said he and his team wanted to take as many demographic variables as possible into consideration.

"Moral variables touched on whether people identify as traditional, or spiritual, and to what degree, and people’s support or opposition to the death penalty," he said. "Accounting for the full range of variables involved sometimes personal questions such as whether a person had ever been a crime victim or incarcerated."

With the instrument specifically targeting the "what" of a crime as opposed to the "who," Welner said diagnostic issues, such as mental illnesses, will already be accounted for in criminal proceedings via pre-sentencing assessments.

"Some of the items are clearly sensitive to age and neurologically-related issues," he said. "Adolescents, the elderly, and those with brain damage or developmental disabilities are more likely to commit crimes because of poor impulse control and poor foresight ... the Standard weighs heavier with intent, and with depraved attitudes about a crime."

As such, he said impulsive crimes are likelier to score lower on depravity measurements than predatory crimes and those committed by callous offenders.

One particular item, "extreme response to trivial irritant," he said, is conspicuously affected by mental health considerations.

"Whether a perpetrator’s actions are disproportionate certainly factor in what delusions or hallucinations genuinely are, that is beliefs about provocation that are real," he said. "Still, that item relates to the crime itself and not a diagnosis per se, and that is the spirit of keeping the Depravity Standard blind to personal considerations, which are dealt with elsewhere in the process of justice."

Welner notes that the Standard has its limitations -- primarily, the fact that it can only be used in crimes with clear-cut victims. 

"I recognize that many felony drug sale offenses do not achieve this threshold," he said. "But the law and policymakers will deal with criminalization of drug and other victimless crimes without the Depravity Standard ... it is a solution for resolving the worst of the worst, and does not aim to be a generic criminal law adjunct."

As far as the "subjectivity" of terms such as "evil" and "depraved," Welner said experts in both the mental health system and the legal system routinely make decisions based on terminology that is hardly objective or concretely-defined. 

"Psychiatrists, attorneys and judges have come around to recognizing that 'normal,' 'psychotic,' 'sick,' and 'wrong' are subjective as well," he said. "Training in the law and in behavioral and forensic science is [a] professional responsibility ... the absence of guidance may not be anarchy, but the absence of guidance is injustice."

Making an Impact

The standard, he said, is a form of "representative justice" that could also have applications beyond the U.S. legal system.

"On the international stage, war crimes prosecutions are inherently challenged by the need to focus justice resources on the worst of offenders, but in an entire government or culture of perpetrators, who should be targeted, and targeted first?" he asked. "If war crimes charges are guided by who has the most influence at the United Nations or who has the economic clout to evade accountability, wouldn’t an evidence-based approach be more fair?"

Currently, Welner said his team is analyzing case data from several different jurisdictions, encompassing a geographic scope from Kansas City to Hawaii. While he said he believes the Standard could practically be usable in a few months, he also said he does not want the instrument to be employed prematurely or irresponsibly.

"Other researchers have reached out to The Forensic Panel with a range of ideas for application of the Depravity Standard to other questions," he said. "I feel a responsibility to ensure that the Depravity Standard is properly studied before its application and other contributions to behavioral, forensic and social sciences."

Without any true standards for outlining "heinous" crimes, he said inequities in both major and lesser criminal cases are all but unavoidable in U.S. courtrooms. 

"As a physician and psychiatrist, I feel that avoidance of depravity is no different from the dermatologist who refuses to treat the fungating tumor because it smells bad," he said. "Being a doctor means you cannot avert your gaze to realities. Depravity exists, it can be defined and justice needs it to be delineated in criminal law applications."

Uncommon Journalism, 2015.

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