Monday, April 02, 2007

Depravity, Objectivity, and The Death Penalty

Adam Liptak has a fascinating story in today's New York Times entitled ,"Adding Method to Judging Mayhem." The story focuses on the efforts to two researchers to develop a framework with which to objectively gauge the culpability of particularly cold-blooded killers. With a detectable undercurrent of skepticism, Liptak explains how the work of one the researchers, Dr. Michael Wellner, who developed the so-called "depravity scale," could apply in death penalty proceedings.

Dr. Michael Welner, a clinical associate professor of psychiatry at New York University, has even greater and much more practical ambitions. He is at work on a “depravity scale” to aid juries in separating the worst of the worst from the really bad. It is based on an Internet survey that asks respondents to rank various acts in order of heinousness.

I took the survey the other day, at, but I found it hard and largely pointless to try to distinguish between, say, a contract killing and mailing anthrax.
It feels odd to put degrees of depravity up for a vote, but Dr. Welner’s work follows the erratic logic of death penalty jurisprudence.

For ordinary crimes, we rely on legislatures to distinguish among blameworthy acts in criminal codes. Juries determine guilt. Judges decide sentences, often guided by sentencing laws. But we ask more of juries in capital trials. They must decide whether convicted defendants deserve to die.

In the second, sentencing phase of a capital trial, juries weigh aggravating factors against mitigating ones. The sum of that calculation equals life or death.

Most states have long lists of possible aggravating factors, often including, for instance, killings committed during other felonies, torture and terrorism. But prosecutors are fond of relying on one aggravating factor in particular — that the murder was heinous, atrocious or cruel. That is pretty vague, and that is where Dr. Welner comes in. His aim is to use the objectivity of science to help jurors confronted with that phrase to sentence consistently.

Dr. Welner said he had collected 17,000 responses to one part of the survey. He wants more before he rolls out his depravity scale for use in the courts, but he gave me a tentative idea of what people are saying.

Almost everyone agrees that intending to inflict emotional trauma qualifies as depraved. But what racked up the biggest numbers as “especially depraved,” he said, was “prolonging the duration of a victim’s suffering.” “The weakest supported item,” Dr. Welner said, is an “extreme response to a trivial irritant.” The survey gives road rage as an example.

The survey could also help lawyers in selecting juries. Women, Dr. Welner said, are more likely to think particular acts are especially depraved. Defense lawyers and prosecutors, perhaps because they are inured to depravity, tend the opposite way.

Dr. Stone, who developed the 22-part taxonomy of evil, said his work was not meant for judges and juries. “I don’t much care about the legal system,” Dr. Stone said. “Welner is transfixed with the legal system. I’m not.” The Supreme Court has never been particularly comfortable with vague phrases like “heinous, atrocious and cruel.” Justices have repeatedly mused that all murders can be said to be depraved, and the court has sometimes struck down death sentences based on that factor.

But in 1990 the court sustained an Arizona death sentence based on a finding that the murder had been committed “in an especially heinous, cruel or depraved manner.” The court said the sentence passed muster because Arizona courts had defined the phrase narrowly.

The list of what qualifies as depraved in Arizona, however, includes the senselessness of the crime, the helplessness of the victim, the apparent relishing of the murder, the age of the victim, “needless mutilation” (as opposed, one supposes, to the kind necessary to the murder), the fact that the victim had been kind to the killer, special bullets, “gratuitous violence” and “total disregard for human life.”

As Justice Harry A. Blackmun said in dissent in the 1990 case, “there would appear to be few first-degree murders the Arizona Supreme Court would not define as especially heinous or depraved.”

Dr. Welner intends to bring some order to this chaos, to sort out the mayhem.
Prof. Robert Blecker, an authority on the death penalty at New York Law School who sits on an advisory board assisting Dr. Welner, said the survey had the potential to focus attention on sadistic cruelty, which he said “is the essence of who deserves to die.”

But Professor Blecker also worried about how a numerical scale would be used in practice. “Would it remove the arbitrariness?” he asked. “Or merely give the illusion of objectivity?”
The current system of capital sentencing, which the Supreme Court likes to call guided discretion, is not quite an oxymoron. But, as efforts to make scientific sense of it demonstrate, it is something like one.


Michael Welner, M.D. said...


Adam Liptak’s column, which commented on the Depravity Scale research which I have coordinated, incorrectly depicts key elements of the research and fails to advise of the Depravity Scale’s greatest significance.

The Depravity Scale research is in fact the first and only effort that has been undertaken to standardize legal and clinical distinctions of evil crimes. The research is the first forensic science research to incorporate psychiatric standards, judicial case decision review, and large scale input from the general public (not only surveys). This effort is also the first research effort to ever involve the general public to derive more objective sentencing standards.

In a democracy that all too often bemoans unfairness in injustice, the Depravity Scale’s goal of distinguishing the worst of crimes, must in my opinion incorporate each of these elements. In a forensic realm that utilizes the scientific method to crystallize otherwise ambiguous concepts, defining evil crimes must utilize current diagnostic understandings, the clinical experience of evil from a range of forensic sciences beyond psychiatry, and attempts to define evil by law. The Depravity Scale research has, by the complexity of this approach, established the unfathomable – that consensus of what defines an evil crime can be achieved. From the standpoint of scientific search for answers, this progress validates that our landmark research will contribute greatly to the evolution of justice.

With no advertising, the Depravity Scale Phase B and Phase C have garnered 17,000 and 5,000 responses to date, respectively – from twenty five countries. Such self-directed participation demonstrates that many personally find the exercise of public input into shaping this Depravity Standard necessary and meaningful. The research has drawn from the input of advisory board members from sixteen disciplines spanning the law and forensic sciences. It includes those supporting and opposing the death penalty who appreciate fairness as a goal we should all aspire to. aims to set an example for justice research to involve the general public because it is the very public affected by laws and the science that shapes them.

As a practitioner who witnesses recurring sentencing that does not accurately reflect the seriousness of a crime or lack thereof, I strongly encourage those who see representative laws and democracy as applicable to numerous aspects of controversy to participate in this groundbreaking research and to witness their input making a difference in clinical and legal settings.

desmondgale said...

Its a very nice to hear about Dr. Michael Weiner. The story is really facinating.

California DUI