The Depravity Standard research addresses arbitrariness in criminal sentencing by operationalizing an evidence-driven distinction for legal terms such as “heinous,” “atrocious,” “evil” and “depraved.” The research will ultimately develop a classification reference to inform sentencing decisions and release determinations based upon the components that make certain crimes more severe than others. The Depravity Standard’s focus on evidence of intent, actions, victimology and attitude promote guidelines that are racially and socio-culturally blind, consistently applied across jurisdictions, and easy for judges, jurors, and other justice officials to apply.
Large-scale public participation in the Depravity Standard surveys helps to establish 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. 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 converges with data mined from hundreds of adjudicated cases to establish statistical thresholds for low, medium, and high depravity crime.
Why we're doing it: Our Mission
Many states rely on “aggravating factors” that escalate sentencing once a defendant is found guilty. One such factor is the depravity of the crime. A defendant found guilty of an especially depraved, heinous, atrocious, cruel, inhuman, or vile crime may have years added to their sentence, or be sentenced to the death penalty. However, while descriptors likes “evil,” “heinous” and “depraved” have been upheld as constitutional, there is no standardized, consistent, clear definition for the terms.
Current specifications within the United States, established in higher court decisions and applied by lower courts, vary from state to state, or even between courts in the same state. With ill-defined instructions, judges and jurors have little direction as to what makes a crime “depraved” and are forced to rely on subjective, often emotion-driven, court-arguments. In certain instances, these potentially uninformed decisions, which are then vulnerable to bias, can mean the difference between life and death.
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 to assist judges and juries. The instrument will measure specific intents, actions, victimology, and attitudes 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.
The Depravity Standard instrument will only be used as a guideline to aid the trier of fact in assessing evidence relevant to its sentencing decisions on questions of depravity – a decision made by the judge and juror and not by a Depravity Standard.
The U.S. Supreme Court has promoted the need for guidance to assist the trier of fact in matters of jury inexperience. The Depravity Standard and its research accomplishes exactly that mission.
Among other applications, 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.
How we’re doing it: A multiphase process
In Furman v. Georgia (1972), the U.S. Supreme Court ruled that the death penalty could be reserved only for a narrowed class of defendants, and that narrowed class could not be arbitrarily defined. In response to the Court’s ruling in Furman, states created laws that distinguished potential mitigating and aggravating factors (including the already-in-use “heinous,” “atrocious,” and “cruel” distinctions) in cases being considered for capital sentences.
In Gregg v. Georgia (1976), the Court upheld the use of the “heinous, atrocious and cruel” aggravator as constitutional. The same decision, however, acknowledged the jury’s burden to weigh factors despite a lack of expertise, and noted that this quandary could be alleviated with guidance regarding the factors about the crime and the defendant that “society deems relevant.”
Additionally, in Walton v. Arizona (1990), the Court clarified that aggravating factors need to be identified through objective circumstances.
The Depravity Standard research objectives have been developed in order to fashion an instrument that assists jurors, while emphasizing details and objective circumstances over impressionism, and fairness over arbitrariness, as mandated by the courts in Furman, Gregg, and Walton.
Laying the foundation
In 1998, psychiatrist and lead researcher Michael Welner, M.D. reviewed over 100 appellate court decisions where jury findings of “heinous” or “depraved” were challenged and upheld and reversed. Through this review, he identified details of perpetrators’ intents, actions, and attitudes that inspired these decisions, and distilled those details down to common features. The features were then organized in accordance with psychiatric diagnostic constructs; specifically, antisocial personality, psychopathy, malignant narcissism, antisocial-by-proxy, sadism, and necrophilia. Fifteen items emerged from this exercise, intents, actions, and attitudes as had been signified by American courts, establishing content validity.
Dr. Welner then prepared vignettes of fictitious homicides and provided them to attendees of law and forensic science lectures on the legal dilemma of undefined terminology denoting “evil.” Respondents were asked to volunteer hypothetical examples of intent, actions, and attitudes that would distinguish that crime as the “worst of the worst,” with application to crimes beyond homicide. The exercise sought to more fully account for the range of human choices and behavior that might manifest itself through violent or non-violent criminal acts.
Through the data gathered from this exercise, the original 15 items expanded to 26 items for further consideration of inclusion in the Depravity Standard. These items were then referred for further study in Phase B, the Depravity Scale.
Phase B - The Depravity Scale: Establishing public consensus
Phase B was an internet-based study designed to collect public opinion on what features of a criminal act represent depravity. The 26 items of specific intents, actions, and attitudes of a crime, developed from Phase A, were presented in the study, along with examples of each. Participants rated each item as “especially,” “somewhat,” or “not” depraved. One item with heavy overlap to others was dropped from consideration, leaving 25 items for continued study.
Phase B’s purpose was to assess which of the studied items could achieve consensus support (regardless of demographic and background differences) as reflective of a depraved element of a crime. Phase B did not identify any items that should be eliminated from the final instrument. Public response found that all items represented an aspect of a depraved crime, and has allowed us to rank the items from 1 (most depraved) to 25 (least depraved) based on the public’s responses.
Phase C - Ranking depravity
The goal of Phase C was to establish how the items on the Depravity Standard should be weighted when present in a given crime. We recognized that even if participants rated a number of the Phase B items as representative of depravity, some qualities of a crime may be even more depraved, even much more depraved, than others. Therefore, Phase C compared the items under study to one another. Participants are asked to rank the items from “least depraved” (1) to “most depraved” (5), when presented in randomly ordered groups. This allowed us to determine a ranking of most to least depraved, similar to Phase B results.
Phase D: Validation
Concurrent to collecting public opinion on these 25 items, we are in a phase of validating the application of the items to actual murder, assault, sex crime and non-violent felony criminal cases. Our research team is collecting and reviewing hundreds of closed convictions, randomly selected by jurisdictions all over the country for inclusion, and data mining them to discern aspects of depravity as defined and ranked in phases A-C. Data from Phase D will determine the validity of the tool in its application to real cases.
Phase E- Weighing depravity
We have established that our list of 25 items are at least somewhat, if not especially representative of depravity. We also determined a ranking system from most to least depraved items. Phase E aims to establish the weight of each item by measuring the amount of depravity the public attributes to each item. Weighting the components of each case will assist judges and juries to make more informed decisions in comparing similar crimes based on degree of depravity.
The Depravity Standard: The Instrument
There is no available inventory or methodology to assess whether specific crimes are reflective of depravity – there is no standardized definition of depravity in the first place. By identifying and refining items for inclusion on the legal instrument, we are delineating the meaning of depravity as a byproduct of court-decisions, public survey, and case sampling. In this manner, the Standard will provide not only an instrument, but a reference point.
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 Depravity Standard will insulate the assessment of what depraved factors are present in a crime from potential biases about who perpetrated the crime, or why.
The Standard will apply to any crime that is, as prescribed in a given jurisdiction’s sentencing code, eligible to receive a more severe sentence if the crime is “heinous,” “atrocious,” “depraved,” “evil,” or any such variant. This ranges from violent crime such as murder, rape, assault and arson, to non-violent crimes, including property offenses, fraud, and embezzlement.
The development of the instrument will meet a long-standing need within our criminal court system. Juries bear the burden of establishing “heinous, atrocious and cruel” will now participate in proceedings that focus on the presence or absence of given qualities of depravity, as opposed to the exercise of reaching into one’s gut with only the guidance of attorneys’ ability to argue. Parole and corrections officials will benefit from guidance that minimizes early release decisions that may favor bias or influence. The Standard will provide this guidance by presenting a tool that is grounded in law, structured on scientific principles, and refined by the public – the juries of today and tomorrow.