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Empire State Prosecutor Fall 2010

Page 14
The Depravity Standard:
A Call for Large Scale
Homicide Case Research
By: Michael Welner, M.D., Chairman, The Forensic Panel
Associate Professor of Psychiatry, NYU School of Medicine and,
Theresa Mastellon, M.A., The Forensic Panel
Forensic scientists, like prosecutors, judges and defense
attorneys, learn from experience that seemingly alike crimes
may be far different in their severity. There are some sexual
assaults far more disturbing than others, and particular mur-
ders that we relate more viscerally to as heinous crimes. Evil
is the domain of the worst of crimes; yet to date it has avoided
not only reliable identifcation, but also the attentiveness
needed to objectively distinguish it. From a forensic psy-
chiatry perspective, science has given clarity to other elusive
notions, from mental illness to psychosis to dangerousness.
What, then, of depravity?
Courts have well-established mechanisms for establish-
ing a defendants diagnosis (who he is). Similarly, testimony
relevant to the defendants background and possible motives
(why he offended) are also available to jurors for delibera-
tion. To date, however, courts and legislatures have failed to
establish consistent, standardized, and evidence-based meth-
odologies to give validity to the identifcation of what it is
about certain crimes that are indeed horribly inhuman. Yet
sentencing and parole determinations may hinge on whether
an offense was heinous, atrocious, and cruel.
1
Inspired by the importance of establishing such distinc-
tions which could beneft justice, The Forensic Panel and
colleagues have undertaken a multi-phased landmark project
known as the Depravity Standard. The Depravity Standard is
an evidence-driven distinction of criminal depravity based on
a crimes intent, actions, victimology, and attitude exhibited
by the offender. Forensic pathology, anthropology, ballistics,
dentistry, psychiatry, and other forensic sciences contribute
to a fair and non-denominational guideline for courts. The
project draws heavy infuence from records of higher court
decisions and is the frst justice-driven forensic science re-
search in history to incorporate data from large scale sampling
of the general public.
2

The research has advanced through three phases of large
scale data collection and has reached the climactic validation
phase necessary before application to criminal cases. How
have we reached this point, and what do we envision?
Because the need to refne standards for determining the
severity of crimes relates to contemporary sentencing deci-
sions, we frst scrutinized over ffteen years of United States
appellate court decisions in which higher sentences for crimes
deemed heinous, depraved, vile, horribly inhuman, (and
other analogs of evil) were upheld or reversed. By recording
aspects of the perpetrators intent, actions, victimology and
attitudes that were persuasive to courts decision-making, we
established a prodigious volume of crimes that asserted their
status as the worst of the worst.
Analyzing this volume of data enabled us to establish
26 examples of intent, actions, attitudes and victimology
that would account for the variations in the rationale cited
by courts for upholding fndings that a particular crime was
substantively evil. The goal at this stage was to inventory
distinguishable features that could account for the seemingly
limitless possibilities of criminal offense, be it through vio-
lence or nonviolence.
The U.S. Supreme Court in Gregg, validating the use of
aggravating factors in capital sentencing, admonished that
these factors should refect societal standards.
3
For this
reason, the research team at The Forensic Panel developed
The Depravity Scale, an internet-based protocol for drawing
input from the general public about these 26 items.
4
While
gathering extensive demographic information, we set out
to explore whether there were components of crime that
we could all, despite our individual differences, agree were
depraved.
The results were stunning. Sixteen of the twenty-six
items under study garnered over ninety percent agreement
that they were at least somewhat depraved. Strong support for
most of the remaining items emerged as well. This research
protocol demonstrated the improbable that a consensus on
what is an evil crime could be achieved.
5
Aided by an advisory board drawing from 16 disciplines
including judges, prosecutors and defense attorneys, profes-
sors, forensic scientists and statisticians, our research team
devised a sophisticated follow-up online study. The surveyed
Empire State Prosecutor Fall 2010
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Continued on next page
general public then compared the degree of depravity among
the remaining 25 items (Table 1). One of the items, for whom
defnition proved to be potentially confusing, was dropped
from further consideration.
To date, over 40,000 completed surveys have been tallied
with extensive demographic data. Revealed here are the fve
items of The Depravity Scale to which respondents attached
the highest degree of depravity (Table 2). The research has
succeeded not only at demonstrating that a consensus can be
established for characterizing heinous elements of a crime,
but even what qualities of crime are the worst. Defning a
depraved crime is possible. How does this advance justice?
In courts current approach, judges and juries offer an
opinion about whether a crime is heinous, with no estab-
lished requirement of attorneys to present evidence beyond
that for guilt, and no reliable distinctions for what elements of
a crime should be present in order to qualify for the designa-
tion of heinous. With a Depravity Standard, prosecutors
seeking to charge a crime as heinous would offer the relevant
evidence to support the specifc intent, actions, victimology,
or attitudes. Evidence would be presented, for example,
that the defendant intended to maximize damage, involved
others to increase the degree of destructiveness, or demon-
strated satisfaction or excitement after the crime. Defense
counsel would then have an opportunity to assert evidence
to the contrary to say that the claimed intent, actions, and
attitudes were not present. The trier of fact would base a
ruling of depravity on consideration of both the prosecution
and defense evidence.
The Depravity Standard research now enters its fnal stage
of validation. We will be establishing thresholds of which
items, and the number of depravity items that distinguish the
worst of intentional homicides. Through the analysis of an
entire community sample of adjudicated murder cases over
a given period, a full variety of homicides will be reviewed.
The case review will include investigative reports, au-
topsy reports, indictment sheets, presentencing reports and
closing statements. The presence and absence of the items
of the Depravity Standard will be recorded for each case.
The data, and its weighting, from the data gathered from the
public surveys, will provide a statistical formula for strati-
fying different levels of depravity. A subset of killings will
ultimately separate itself from others murders as the worst of
the worst; other subsets will allow for distinction of moderate
and low depravity. A validated, evidence-driven means for
delineating the level of depravity of a given homicide will
then be achieved.
The frst case pools for this pivotal study of a sample of
adjudicated murders have already been obtained from dif-
ferent jurisdictions in other states. However, The Forensic
Panel is based in New York City; we have a special connec-
tion to this state, and quality control for this sensitive project
is easier to manage closer to our base.
We appreciate the encouragement of many of you in
the years since I embarked upon this project, nurturing it
alongside the demands of cases in which I have consulted
to you. It is in the spirit of the scrupulous attention to detail
that this practice brings to casework and our sensitivity to
privacy and other concerns that we have approached such a
delicate project. The nature of the research does not require
identifying information about the defendant or victim to be
recorded or published.
And it is in the same spirit of using the best practices of
evidence - gathering from cases to establish mental states,
guilt, and mitigation or aggravation that I respectfully reach
out to each of you for permission to study a sample of adju-
dicated cases from your county.
As noted by NYPTI Deputy Director Martin Cirincione,
the New York State Commission on Sentencing Reform and
Governor Paterson are seeking to expand the use of evidence
based practices.
6
The Depravity Standard is completely
driven by evidence and cannot be utilized in a judicial context
without it. The trier of fact (which will in most cases be the
jury) will be given a guideline that allows them to review the
presented items, making their own determinations, but with
much needed and relevant input.
The Depravity Standard is a methodological solution
to a serious justice need and will be made available to the
justice system upon its completion, without cost. This is a
not-for-proft project moving toward a solution to the be-
deviling challenge of defning the worst of crimes with the
best of evidence. As with any standardized instrument, the
Depravity Standard will have strict guidelines for its use,
with the protocols designed to prevent misuse. The very
nature of an instrument that imbues guidance to an ambigu-
ous, if not absent, standard will alleviate injustice. We aim
to contribute an evidenced-based advance that ignites novel
thinking about fairness in sentencing.
We urge you as leaders of the criminal justice system to
make relevant case samples available for study so that the
research refects the direct infuence of New York. We look
forward to hearing from each of you with any questions,
feedback, advice, and hopefully, kindred spirit in advancing
innovation in the criminal justice system.
Empire State Prosecutor Fall 2010
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Table 1: Items Under Study in The Depravity Scale
Item Description
1. Intent to emotionally traumatize the victim, or to maximize terror through humiliation
2. Intent to maximize damage or destruction, by numbers or amount if more than one
person is victimized, or by suffering and degree if only one person is victimized
3. Intent to cause physical disfgurement
4. Intent to carry out a crime for excitement of the criminal act alone
5. Targeting victims who are not merely vulnerable, but helpless
6. Carrying out a crime in spite of a close and trusting relationship to the victim
7. Infuencing depravity in others in order to destroy more
8. Escalating the depravity; inspiration for more
9. Carrying out a crime in order to terrorize others
10. Carrying out a crime in order to gain social acceptance or attention
11. Infuencing criminality in others to avoid prosecution or penalty
12. Disregarding the known consequences to the victim
13. Targeting victims based upon prejudice
14. Prolonging the duration of a victims suffering
15. Unrelenting physical and emotional attack; amount of attacking
16. Exceptional degree of physical harm; amount of damage
17. Unusual quality of suffering of the victim; victim demonstrated panic, terror, and help-
lessness
18. Indulgence of action, inconsistent with the social context
19. Carrying out attack in unnecessarily close proximity to the victim
20. Extreme response to trivial irritant; actions clearly disproportionate to the perceived
provocation
21. Satisfaction or pleasure in response to the actions and their impact
22. Despite criminal responsibility, falsely implicating or accusing others of actions, know-
ingly exposing them to penalty, resulting in the falsely accused being investigated and
jailed, and perhaps even tried
23. Projecting responsibility onto the victim; feeling entitlement to carry out the action
24. Disrespect for the victim after the fact
25. Indifference to the actions and their impact
Table 2: Five Qualities Ranked Highest for Level of Depravity in Phase C (as of 9/21/10)
Item
1. Unusual quality of suffering of the victim
2. Prolonging the duration of a victims physical suffering
3. Intent to emotionally traumatize the victim
4. Intent to cause permanent physical disfgurement
5. Targeting victims who are not merely vulnerable but helpless

Empire State Prosecutor Fall 2010
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(Endnotes)
1
Welner, M. (2003). Legal relevance, psychiatric realities, and the methodology for
standardized distinction of heinous and evil crimes. Journal of the American
Academy of Psychiatry and the Law 31, 4 417-421
2
Welner, M. (2006) Classifying crimes by severity: From aggravators to depravity.
In Douglas, J.E., Burgess, A.W., Burgess, A.E., & Ressler, R.K. Crime Classifca-
tion Manual (pp 55-72) San Francisco, CA: John Wiley & Sons
3
Gregg v Georgia, 428 US 153 (1976)
4
www.depravityscale.org
5
Welner, M. (2009). The justice and therapeutic promise of science-based research
on criminal evil. Journal of the American Academy of Psychiatry and Law 37, 4
442-449
6
Cirincione, Martin (2010). Evidence Based SentencingA New Frontier? Empire
State Prosecutor, 7, 2 35-36

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