In the Spring issue of The Empire State Prosecutor, the publication of the New York Prosecutor’s Training Institute, Marlene Tuczinski had the opportunity to ask Dr. Michael Welner and Kate O'Malley, Director of Research at The Forensic Panel, a variety of questions relating to Dr. Welner's work as a forensic psychiatrist and more particularly, the Panel's research on the Depravity Standard. Below are their answers to the questions posed:
Tuczinski: Would you please give us a general understanding of forensic psychiatry?
Dr. Welner and O'Malley: Forensic psychiatry is the intersection of law and psychiatry. Psychiatry questions are relevant to a range of legal matters and junctures in the life cycle of litigation, across many criminal and civil cases. Evaluations of matters such as competency and risk are distinct to forensic assessment. Moreover, there are many special topics, be they violence, sexual-offending, stalking, the effects of emotional injury, and many more that present to forensic psychiatry even as they are not part of the routine experience of clinical psychiatrists. Forensic psychiatry also intersects more commonly with pathology, medicine, and toxicology, because the expectations of diagnostic accuracy that accounts for medical explanations are higher in the litigation context.
Tuczinski: As a forensic psychiatrist, you have spent several years creating a Depravity Standard that could be used by courts and prosecutors in measuring evil as it manifests in crime. You have based your findings on community-based surveys and your own review of prosecutors' files. Would you please describe this project and explain how a Depravity Standard could benefit the criminal justice system?
Dr. Welner and O'Malley: My early career experiences left me with the impression that forensic psychiatrists, forensic scientists, judges, and attorneys alike knew viscerally that there were crimes we experienced as the worst of the worst - the worst murders, the worst white collar cases, the worst sexual-assault crimes. Yet however refined the law and statutes, these worst-of-the-worst were not being captured with the precision we expect in medicine.
I had developed a strong interest in better defining the severity among similarly categorized crimes. My early study of this distinction led me to the regular controversies in appellate courts over whether adjudicated crimes were truly "heinous," "atrocious," "vile," "depraved," and other synonyms of evil. The courts were really speaking about evil, as it related to the worst of man's actions. Yet when I researched efforts to define these areas, I found them to have never been based upon the evidence that distinguishes one crime from the next, from a forensic science and criminalistics perspective. I was further ignited by an article I stumbled upon, by the late Professor Abraham Abramovsky, on depraved indifference under New York state law. I could see that the terminology and its evolving definitions likewise eluded accounting for the "worst-of-the-worst."
Medical science and in psychiatry in particular have benefitted and have in turn contributed to society by better delineating a host of otherwise ambiguous terms. What is "psychotic," for example? What makes a paraphilia deviant? What weight is obese? What is intellectual disability? Defining the seemingly abstract is a necessary exercise attracting scientific curiosity and resolve across the ages. Yet my review of the matter convinced me that defining evil was being conspicuously avoided - to the end of the frustration manifest in the court opinions I was reading.
The Depravity Standard research objectives were developed in order to fashion an instrument to assist judges and jurors, while emphasizing details and objective circumstances over impressionism, and fairness over arbitrariness, as mandated by the Supreme Court.[1] The research will ultimately develop a classification reference to provide guidance to the otherwise inexperienced trier of fact, based upon the components that make certain crimes more severe than others.
Since the research's inception, the Depravity Standard has evolved from a series of five studies. The first study established the 25 items for consideration through the review of over l00 appellate court cases upheld as "heinous, atrocious, or cruel," and by sampling students and professionals in the industry for other examples of the most severe crime scenarios. Study 2 involved an online survey where the general public rated whether each of the items under consideration were depraved to warrant inclusion in a Depravity Standard reflecting societal attitudes. The Supreme Court, upholding the use of sentencing aggravators, had many years earlier outlined a need for juror guidance regarding the factors about a crime and defendant that "society deems relevant."[2] These surveys specifically aimed to integrate public input to inform a societal standard. This phase of the study was a landmark effort in many ways - it marked the first large scale effort involving the general public (including future jurors, victims and their families, attorneys, judges, and offenders) to have a direct impact in shaping criminal sentencing.
Study 3 is a review of actual closed felony case files to further refine the item definitions and test the application of items to real cases. In order to establish inter-rater reliability, Study 4 used actual cases against the definitions developed for the Depravity Standard items to compare the scores of two groups of raters. We have been fortunate to have cultivated trust and respect among numerous prosecution agencies across America who have shared their case files with us. As a practitioner with a central role in a number of the most sensitive convictions around the United States in recent years, including capital sentences, I know how precarious successful verdicts are. We have worked carefully to safeguard the data shared and to use it delicately and with full respect for privacy considerations, and I am grateful that so many elected prosecutors have the intellectual curiosity in a refined Depravity Standard to have given us access to hundreds of full case files such as they have. No one conducts justice research with the level of diligence we have, and this is why our findings are so informative and exciting.
The most recent and fifth study involves an online survey of the general population to determine how depraved each of the 25 items under consideration are, relative to the other items. We are aiming to enable crimes to actually be weighted, even the crimes of co- defendants within the same crime. In the spirit of doing what needs to be done, we instituted the most recent on-line survey to further refine what we were learning.
Large-scale public participation in the Depravity Standard surveys is establishing consensus across various demographics of what intent, action, victimology, and attitude items make a crime depraved, and how depraved each item is. The Depravity Standard will ultimately reflect a foundation of public opinion. Data from public input on the Depravity Standard will converge with the data mined from hundreds of adjudicated cases to establish detailed guidelines with qualifying and disqualifying examples of each Depravity Standard item.
By focusing attention on evidence of intent, actions, victimology, and perpetrator attitude, the tool provides a guide that can be consistently applied across jurisdictions, and that will be easy for judges, jurors, and other justice officials to apply. The Depravity Standard will also assist in removing bias from sentencing by remaining blind to a perpetrator's race, ethnicity, gender, religion, sexual orientation, education level, and socioeconomic status. The trier of fact will retain the decision - but will have evidence-based guidance to help when these decisions are more complicated and vulnerable to bias.
Tuczinski: You have said that the type of forensic research supporting the Depravity Standard would remove prejudicial bias in sentencing. How is this so?
Dr. Welner and O'Malley: While descriptors like "heinous," "horribly inhuman" and "depraved" have been upheld as constitutional,[3] there are currently no consistent, clear definitions for the terms that provide for fair application to sentencing. With ambiguous, limited, or impressionistic instructions, judges and jurors have little direction as to what makes a crime "depraved." In the face of inexperience, jurors are forced to rely on subjective, often emotion-driven, court- arguments. Decisions that are less informed, misinformed, or focused by playing theatrically to side issues for and against, are then vulnerable to bias. Bias fills the vacuum of data and understanding - in courts, in science, in life. Understanding and evidence protects against the effects of ignorance.
Our research, which is grounded in higher-court decisions, refined by public opinion, and validated with actual large-scale case sampling, will operationalize an evidence-focused Depravity Standard. The instrument will measure specific elements of criminal activity: the "what" of a crime, as opposed to the "who" or the "why." In distinguishing depraved aspects of a crime's fact pattern, sentences applied due to a depravity-based aggravating factor will be done so without relying on arbitrary subjective opinion, but specific criteria.
Tuczinski: In trying to define conduct that is "depraved," you have compiled an inventory of 25 factors from the surveys submitted. Are any of these factors more important than others? Were any of these factors a surprise to you?
Dr. Welner & O'Malley: Our research has established that the public determined twenty-five Depravity Standard items to be at least somewhat, if not especially, representative of depravity. The results also indicated varying levels of support for whether each item was somewhat or especially depraved. Additional feedback from participants, supported my own professional experience that some items are more depraved than others, even as they may both embody depravity. The survey data has enabled us to establish a rank order of severity among the twenty-five items.
However, as a matter of application to the justice system, we are aiming at more refined distinction. If a certain intent, for example is more depraved than another intent, how much more depraved? How should either be weighted, when present in a given crime?
The present -- and critical -- online survey found at www.depravitystandard.org therefore aims to establish the weight of each item by measuring the amount of depravity the public attributes to each item on a scale of l (depraved to the least degree) to l00 (depraved to the most extreme degree). Weighing the components of each case will assist more informed decisions about the severity of a given crime, or the relative culpability of co-conspirators. We urge all of you to join others in the general public to log on, participate, and include your voice among those completing these surveys shaping the Depravity Standard.
Tuczinski : Who will benefit from using the Depravity Standard? In what way?
Dr. Welner and O'Malley: The Depravity Standard will be used as a guide to aid the trier of fact in assessing evidence on questions of depravity relevant to its sentencing decisions. Decisions will still continue to made by judge and jury and not by a Depravity Standard. In this manner, the Standard will provide a vitally needed reference point.
The Depravity Standard will also assist parole boards and other corrections agencies charged with classifying crimes by severity in order to inform early release decisions. Evidence-based release decisions promote fairness and limit bias in efforts to relieve prison overcrowding. Governors will also be able to utilize the Depravity Standard to assist in pardon decisions and to demonstrate evidence-based decision-making rather than cronyism. Moreover, the Depravity Standard will guide police investigators to more fully probe cases and ensure all aspects of a crime are duly considered for depravity, before prosecutors recommend charges.
When complete, the Depravity Standard will focus inquiry on intents, actions, victimology, and attitudes of a crime in order to minimize reliance on subjective judgments and presumptions in reaching sentencing decisions. The Standard will be applicable to felony crimes involving a victim, including any violent crime such as murder, rape, assault, and arson, and non-violent crimes such as property offenses, fraud, and embezzlement.
The Depravity Standard will provide this guidance as a tool that is grounded in higher court decisions, structured on scientific principles and method, and refined by the public - the juries of today and tomorrow - shaping societal attitudes.
Tuczinski : What is on the horizon for the Depravity Standard project? What are the next steps you are taking towards completion?
Dr. Welner and O'Malley: The Depravity Standard Murder/Attempted Murder tool and associated definitions are nearing completion and will be published in academic articles later this year. We are still in the case collection stage for the Violent Crimes, Sexual-Assault Crimes, and Non-Violent Crimes studies, and are inviting jurisdictions from across the country to participate by providing access to their closed felony cases.
We very much encourage prosecutors who recognize the tremendous potential of this research to join their colleagues in many jurisdictions - here in New York and elsewhere - and allow us to use your cases and your experiences to better refine this landmark research. Please assist us by allowing us to include your cases! As your colleagues have found, we will work with you responsibly and efficiently, and your efforts will contribute to a great betterment of our justice system and your own future prosecutorial decision-making.
As states grapple with more urgent demands of relieving prison overcrowding, legislators recognize that a more fair and evidence-driven way to deal with this is by applying the Depravity Standard to denote which felonies warrant continued incarceration because they are the worst of their group, and those more appropriate for leniency. We are refining our research in order to responsibly meet these justice needs.
Interested jurisdictions can contact Kate O'Malley, Research Director at The Forensic Panel, at komalley@forensicpanel.com.
[1] Furman v Georgia, 408 US 238 (1972); Gregg v Georgia, 428 US 153 (1976); Walton v Arizona, 497 US 639 (1990).
[2] Walton v. Arizona, 497 US 639 (1990).
[3] Gregg v. Georgia, 428 US 153 (1976).
