CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, April 3, 2007

The Depravity Scale: Adding Method to Judging Criminal Depravity?

This NYTimes story focuses on the efforts to two researchers to develop a framework with which to objectively gauge the culpability of particularly cold-blooded killers. The article explains how the work of one the researchers, Dr. Michael Wellner, a clinical associate professor of psychiatry, who developed the so-called "depravity scale," could apply in death penalty proceedings.  He is at work on the “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.

From "To minimize the arbitrariness of how courts determine the worst of crimes, and to eliminate bias in sentencing, the Depravity Scale research aims to establish societal standards of what makes a crime depraved, and to develop a standardized instrument based on specific characteristics of a crime that must be proven in order to merit more severe sentences.

This research will refine into the Depravity Standard, an objective measure based on forensic evidence. This instrument distinguishes not who is depraved but rather, what aspects of a given crime are depraved and the degree of a specific crime's depravity."

According to the reasearchers, the depravity scale research will enhance fairness in sentencing, given that it is race, gender and socio-economic blind.  But, CrimProf Robert Blecker, an authority on the death penalty at New York Law School who sits on an advisory board assisting Dr. Welner, is 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?” Story here. . . [Michele Berry]

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The New York Times article, well written though it was, does incorrectly depict 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. 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 is more than just my efforts in spawning it - The Depravity Scale 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.

As for Professor Blecker's comments, the practical application of the Depravity Standard would inform the jury without thinking for the jury. Instead of jurors making decisions about depravity with no guidance, jurors would consider the presence or absence of intents, actions, victimology and attitudes that may or may not be present in a crime.

Prosecution and defense would be presenting to the jury evidence relating to "Intent to emotionally traumatize," for example, rather than "evidence that the crime is heinous." And so, the Depravity Standard would advance evidence-based determination as opposed to a visceral determination, but still a determination by the fact finder.

Law professors already are engaging their classes in participating in this research and find that it stimulates interesting discussion about culpability and fairness. If you have any questions about how you can engage your class in these kinds of discussions and classroom interactivity, based on the experiences we have learned of, we would be happy to let you know.



Posted by: Michael Welner, M.D. | Apr 5, 2007 12:34:28 PM

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