Is a “perp” who attempts to permanently scar a victim with a knife more or less depraved than one who forces a child to witness a murder? How evil would you rate a terrorist who targets civilians in comparison to a serial killer who picks victims according to their race or ethnicity?
A leading forensic psychiatrist who has testified in some of America’s most infamous violent crime cases seeks the nation’s collective opinion on these and other imponderables to complete more than 13 years of pioneering research aimed at codifying the concept of evil for the justice system.
Dr. Michael Welner and his team at the Forensic Panel in New York have issued a survey that asks participants to rate 25 violent crime elements for input into the group’s so-called Depravity Standard. Behind the scenes, talks are already under way with state officials around the country to introduce them to the standard, which Welner says would provide evidence-based guidelines aimed at helping reduce the degree of subjectivity that occurs throughout the judicial process, not least at the prosecutorial stage.
“In criminal courts today, the decision to charge a case as heinous, atrocious, cruel, depraved or vile rests with the prosecuting authority," Welner – who’s given expert testimony in such cases as Andrea Yates’ drowning of her five children in their bathtub, and the prosecution of Elizabeth Smart’s kidnapper, Brian David Mitchell – said in an interview with FoxNews.com. "But because the law does not include a standard to what constitutes an evil crime, that decision is either visceral, or one that may be driven by political considerations, bias, or sensationalism."
“A Depravity Standard that is rooted in specific hallmarks of intent, actions, attitude and victimology keeps prosecutors accountable to fully investigate a crime for these unique qualities so that evidence informs decision making.”
According to Welner, the Depravity Standard would complement the principle of legal precedent, which exists in varying capacities throughout the United States to standardize the application of justice.
Together with Forensic Panel Research Director Kate O’Malley, Welner is calling on all adults to participate in the survey, which would crown two earlier public surveys involving 30,000 participants.
“At the conclusion of this phase, we will be able to assign weights to homicides, sex crimes, assaults, and non-violent crimes to enable all crimes to be compared against one another – and to actually determine the level of evil in a crime,” Welner said.
Welner is founder and chair of the Forensic Panel, a peer-review forensic consultancy whose advisory board for the Depravity Standard includes a wide spectrum of experts from the judicial, law enforcement, medical and academic fields.
According to the organization, taking society’s temperature on what constitutes depraved crime is reflective of the spirit of the US Supreme Court’s 1976 Gregg v Georgia ruling which, in addition to effectively ending the court’s de facto moratorium on the death penalty in 1972, called for societal standards to guide deliberations of aggravating factors raised in capital sentencing.
Beyond informing prosecutors, the completed Depravity Standard will be made available to detectives to more fully draw out evidence illustrating intent; judges and juries in sentencing and other decision making; corrections officials in making early release recommendations amid prison overcrowding; prison review officials and governors regarding pardon requests; war crimes tribunals in order to transcend the political controversies that sometimes plague such institutions; and academics in order to more carefully study severity within classes of crime, such as hate crimes, domestic violence, drug-related crimes, and other distinct areas of interest.
“We have received requests to use the Depravity Standard in actual cases by criminal defense attorneys and by prosecutors,” Welner said.
“Each of these requests was motivated by, respectively, a defense attorney who recognized that his crime was being overcharged and wanted to demonstrate the unfairness for a court; or a prosecutor who believed his case reflected an exceptional crime and wanted to educate a jury as to why.”
The survey is believed to be the first criminal justice project to reflect the influence of one person, one vote, in a manner that enables future jurors, future families of victims and even perpetrators – because they’re invited to participate as well – to directly fashion an aspect of criminal sentencing that may one day affect any person’s life.
“We have more confidence in the laws we directly have a hand in making,” Welner argued. “Standards that reflect the will of many are the essence of E Pluribus Unum – out of many, one.”
Additional examples of the 25 elements include targeting victims who are not merely vulnerable, but helpless; disregarding the known consequences to a victim; and showing intent to carry out a crime for excitement of the criminal act.
You can participate in the survey at https://depravitystandard.org/register.html
Steven Edwards is a New York-based journalist. Follow him on Twitter @stevenmedwards