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The United States currently incarcerates nearly 1 in 100 American adults,[i] holding 25% of the world’s prison population.[ii] Prison overcrowding presents a material and financial burden for correctional staff and state budget offices alike. Seventeen states currently house more prisoners than their facilities are designed to hold; at the end of 2013, Illinois housed 48,653 prisoners in facilities designed to hold just 32,075, operating at 51 percent over capacity.[iii] North Dakota was also 50 per cent over capacity, with California close behind at 41% over capacity.[iv]

 

Some facilities have simply increased their rated capacity during the past thirty years, without increasing programming, medical, or mental health resources to compensate. This adjustment enables overcrowding and inadequate servicing although technically carrying no more prisoners than facilities are now designated to hold.[v]

 

According to the New York State’s Security Services Unit, New York’s correctional facilities were operating at 100% capacity in 2013, when plans were made to close a further three correctional camps and seven prison annexes for October 2014.[vi] While New York is leading the nation with 26% reduction in prisoners between 1999 and 2012,[vii] one report noted that in 2010 there were still 6,129 double-bunked beds;[viii] a number that could be as high as 10,000 today.[ix] Although overall incarceration rates have drastically declined, since 2004, the percentage of male inmates in maximum security prisons with violent felony convictions has risen. Additionally, despite there being fewer inmates, violence in New York correctional facilities are actually at a five year high,[x] after the number of assaults on prisoners and on staff had remained fairly consistent in the 2009-2012 period.

 

Expanding parole eligibility is a change than can be engaged immediately, and would quickly reduce spending and lower prison populations. Early release could also assist in the reduction of violence related to congestion.

 

Releasing prisoners, however, opens up parole boards and a Governor to criticism if recidivism does occur, and public outrage when the community feels leniency was undeserved and secured through unequal access to favorable treatment. Further contributing to prison overcrowding, therefore, is the reluctance of parole boards to release all who are eligible to avoid public backlash.[xi]

 

Risk assessment measures help to inform the consideration of prisoners for early release. Those thought to be at lowest risk to public safety are more likely returned to the community ahead of schedule. While helpful, risk assessment measures identify only a small number of those at higher risk; the remainder group is still very large. Early release decisions therefore involve a high degree of arbitrary judgment and favor, even with the responsible utilization of risk assessment measures.

 

Moreover, offenders at low risk for recidivism may have committed particularly heinous crimes. Child abuse and other domestic homicide, and certain white collar cases may gain preferential treatment by risk assessment measures that the public perceives as unfair, especially if the crimes are disturbing. Early release decisions that likewise incorporate punitive considerations promote a sense of fairness and equal justice.

 

So what if there were more we could do to inform determinations of early release decisions, when traditional risk assessment measures are not sufficient?

 

Judges and juries in courts across the United States who decide that a crime is “depraved,” “heinous,” or “horrible” can assign more severe sentences for these statutory aggravators. Yet there is no standardized definition for such dramatic words that courts already use. We may all recognize that some crimes truly separate themselves from others, but there is no systematic, fair process in use to distinguish crimes that are the worst of the worst, or “evil.”[xii]

 

To minimize the arbitrariness of how courts determine the worst of crimes and eliminate bias in sentencing, forensic psychiatrist Michael Welner, M.D. and The Forensic Panel set out to standardize the distinction of these aggravator terms through the Depravity Standard research project.

 

The Depravity Standard[xiii] is an evidence-based measure of the worst-of-the worst elements of any criminal felony conviction that involves a victim. It has been formulated to enable courts to better distinguish those cases of murder, assault, sex crime, larceny, and white collar crime that warrant higher accountability for the severity of their actions, intent, targeted victim, and the defendant's attitude about the crimes.

 

The Depravity Standard also informs early release decisions by enabling the parole, corrections, court, or government authority to distinguish those cases of murders, assault, sex crime, and non-violent felonies that have no elements of depravity and are therefore less severe and more deserving of leniency decisions or preference in release decisions to relieve overcrowding.

 

Large-scale public participation in online Depravity Standard surveys have helped to establish consensus, across various demographics, of what intent, action, victimology and attitude items make a crime depraved and the degree of depravity within each item. The Depravity Standard, formulated with data from higher court decisions as well as adjudicated cases, will ultimately reflect a foundation of public opinion. As such, it is the first forensic science or justice project ever developed in which society (and future jurors, victims, and defendants) collectively shapes future criminal sentencing.

 

Data from the public input to the Depravity Standard is being reviewed and validated against data mined from hundreds of adjudicated criminal cases to establish statistical thresholds for low, medium, and high depravity crime.

 

The Depravity Standard is therefore a valuable means of distinguishing the worst of crimes, where accountability may include disqualification for early release, regardless of risk. At the same time, the Depravity Standard separates those crimes with unremarkable elements, for whom leniency would not offend the public trust.

 

When used in conjunction with risk assessment measures, the Depravity Standard informs early release decisions that inspire public confidence in the fairness of justice. The smaller groups of those cases meeting the criteria for low depravity and low risk focus corrections' decision-making in ways that draw support from prosecution and defense and avoid controversy and charges of unequal protection.

 

The judgment of members of parole boards is informed with the acumen and experience of the decision-maker; the Depravity Standard does not replace this level of expertise, but rather provides evidence-based guidance in an unbiased, fair and non-arbitrary manner to ensure scrutiny of all pertinent elements of an offence, with a methodology that is easily applied uniformly across all cases.

 

Results of our first large-scale population survey have demonstrated that a consensus can be formed on what the general public thinks are depraved action, attitude, intent, and victimology items in a given crime. Of the 25 items under study, all were found to be at least somewhat depraved by participants, and the top five ranked items from the New York sample can be seen in Table 1.

 

Table 1: Top five depraved items ranked in New York.

1. Intent to emotionally traumatize the victim, maximizing terror, through humiliation, or intent to create an indelible emotional memory of the event
2. Unusual and extreme quality of suffering of the victim, including terror and helplessness
3. Intent to cause permanent physical disfigurement
4. Prolonging the duration of a victim's physical suffering
5. Crime reflects intent of progressively increasing depravity

 

With this phase complete, we are now currently seeking participation in our final public survey, found at www.depravitystandard.org. This phase will refine the rankings determined during this phase into the ability to actually ascertain the weight of depravity of a crime relative to a comparable class of offenses. We encourage you to participate and share the link with your family, friends, and colleagues; it is critical to this phase that a consensus regarding what makes a crime depraved cuts across all demographics.

 

The Depravity Standard research also reflects painstaking data mining from adjudicated cases to validate the application of such a tool based on real world cases. The research team is nearing the completion of analysis of over 750 murder cases from jurisdictions across the United States. We are proud to have cultivated trust among the national prosecutor community to have been afforded access to large numbers of case files (from Utica, Kansas City, Jacksonville, Little Rock, New Orleans, and elsewhere), and we have in kind handled this data with utmost confidentiality.

 

With increased awareness for this project, our research has more recently attracted strong legislative interest in multiple states for the application of the Depravity Standard to early release decision making. As states are confronted with more urgent demands of relieving prison overcrowding, legislators recognize an evidence-driven way to inform these questions by applying the Depravity Standard to denote which sex crimes, violent felonies, and even non-violent felonies warrant continued incarceration because they are the worst of their group, and which are appropriate for leniency.

 

Based on the urgency of legislative interest, we have expanded our case analysis to areas beyond murder. These include the range of assaults and violent felonies, the gamut of sex crimes, and non-violent felonies ranging from thefts to frauds to arson to vandalism. We are currently reviewing hundreds of investigative reports, crime scene and victim photographs, indictment sheets, presentencing reports, witness, offender, and victim statements, among other documents, to test for the presence or absence of the 25 Depravity Standard items developed in earlier phases (See Table 2).

 

Therefore, we would like to now extend an invitation to the prosecutor’s office of your jurisdiction to make available samples of adjudicated assault, sex crimes, and/or non-violent felony cases for our research team to study. By including your jurisdictions’ adjudicated non-murder felony cases, you will help the Depravity Standard to be additionally informed by a case sample in your state. The process is easy and designed to minimize disruption to your office operations. Data is maintained with utmost confidentiality; the substance of cases from our research sample will not be published.

 

The Depravity Standard is a not-for-profit project. The tool, when validation studies are complete and its release approved, will feature lengthy definitions of items and protocols. These will all be provided to the courts and the justice system at no cost.

 

Our data will inform sensitive parole decisions. Applying evidence-driven criteria to distinguishing those crimes that are more severe, as well as those deserving greater leniency, results in decisions of greater validity. Furthermore, it promotes confidence that decision makers, be they the triers of fact or the parole board members, act with neither bias nor ignorance nor the inference of same.

 

1. Intent to emotionally traumatize the victim, maximizing terror, through humiliation, or intent to create an indelible emotional memory of the event
2. Intent to maximize damage or destruction, by numbers or amount if more than one person is victimized, or by degree if only one person is victimized
3. Intent to cause permanent physical disfigurement
4. Intent to carry out a crime for excitement of the criminal act
5. Targeting victims who are not merely vulnerable, but helpless
6. Exploiting a necessarily trusting relationship to the victim
7. Influencing depravity in others in order to destroy more
8. Crime reflects intent of progressively increasing depravity
9. Carrying out a crime in order to terrorize others
10. Carrying out crime in order to gain social acceptance or attention, or to show off
11. Influencing criminality in others to avoid prosecution or penalty
12. Disregarding the known consequences to the victim
13. Intentionally targeting victims based upon prejudice
14. Prolonging the duration of a victim's physical suffering
15. Unrelenting physical and emotional attack; amount of attacking
16. Exceptional degree of physical harm; amount of damage
17. Unusual and extreme quality of suffering of the victim, including terror and helplessness
18. Indulgence of actions, inconsistent with the social context
19. Carrying out attack in unnecessarily close proximity to the victim
20. Excessive response to trivial irritant; actions clearly disproportionate to the perceived provocation
21. Pleasure in response to the actions and their impact
22. Falsely implicating others, knowingly exposing them to wrongful penalty and the stress of prosecution
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