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Criminal Justice Study Aims to Eliminate Bias in Sentencing … And Needs Your Participation

By Delawareblack

Delawareblack.comFebruary 11, 2016

During the evening hours of September 12th, 2014, a bicyclist was struck by a sedan heading northbound in New Castle County, Delaware. The driver, a middle-aged father of three and under the influence of alcohol, did not stop the vehicle to offer aid to the ailing victim, even amidst the haunting question coming from his sons in the back seat – “Dad, did you kill a person?” After telling the boys he had hit a tree branch, the driver continued to his house less than a mile from the scene. The following morning the owner of the sedan telephoned the police, turned himself in, and was later convicted of manslaughter, leaving the scene of a fatal accident, reckless driving, and child endangerment in a non-jury trial. Just one month later a California driver, also under the influence of a substance, accidentally struck and killed a man with his vehicle in Newport Beach and fled the scene. A jury convicted him of murder. At trial, the defendant could only bow his head and apologize to the family of the deceased. Who do you think received the harsher sentence? Don’t you wish you had more say in how our laws dictate criminal sentencing?

Take a moment to imagine yourself sitting on the jury of one such case. A person clad in an orange jumpsuit, sitting only a few feet away, maintains a stoic expression as the facts are introduced. The prosecutor stands just ahead, telling the tale of the tragic death of a person who could be you. As the prosecutor emphasizes the damning evidence of the defendant’s guilt, he looks you square in the eye, doing all that he can to convince you the man in orange deserves the worst of punishment for his offense. His counterpart, the defense attorney, does what he can to convince you that you could have been the person behind the wheel who struck and killed a pedestrian and then chose to flee. He focuses you on seeing yourself in the defendant, rather than seeing what he did. You are supposed to be impartial, while your eyes and ears bombard your biases and sensitivities.

Many people in the United States will perform jury duties at one point or another in their lives, leaving them with the responsibility of deciding the fate of a person standing trial. In criminal courts today, cases that are deemed to be especially evil or depraved can lead to harsher sentences being imposed by jurors who have never had experience with the worst of the worst offenses. Jurors – and judges – are sometimes expected to decide whether a crime is heinous or depraved. The impact of that decision can be the difference of many more years in prison and in some states, can mean the death penalty.

However, there is no consistent or clear and evidence-driven standard behind words such as “evil”, “depraved”, “vile”, “heinous”, or “atrocious.” As a result, decisions about punishment on the basis of the evil of a crime may be riddled with bias. A defendant facing a jury that has no experience or guidance can be deemed “depraved” on the basis of his appearance and yes, his nationality or race or standing in the community. Justice in criminal sentencing is compromised by that bias. Fortunately, a landmark research study to help guide juries means that risk of bias is about to change. What’s more, in an unprecedented stroke, researchers are involving the general public in having a direct say in what American courts should regard as evil in crime. The result is an opportunity for people of color to impact our laws on a level playing field.

Dr. Michael Welner, a pre-eminent forensic scientist, and his colleagues at The Forensic Panel, have spent over a decade systematically researching and refining the Depravity Standard. The Depravity Standard focuses judges and jurors on the components of a given crime – of its intent, actions, attitude, and victim choice – that do or do not distinguish it from other crimes. Such an evidence-based Standard guides judges and jurors on what facts to look for to assist them when deciding on greater punishment or greater leniency.

Consisting of extensive case review and a series of online surveys, it is the first criminal justice initiative to be shaped and defined by the views of the general public.  And because the researchers have made it a priority to establish a consensus of societal standards that cross demographics, Dr. Welner has made it his mission to include the influence of African-Americans and other ethnic minorities in refining the Depravity Standard. In an illustrious career that has placed him at the center of some of America’s most complex cases, Dr. Welner lives the many facets of how justice affects the black community. “In my estimation, laws that have a big impact on lengthy criminal sentencing and release should be representative of the Americans affected by them. High rates of long-term incarceration among African-American males has transgenerational impact. Victimization in black communities affects everyone. And so, we set up research surveys that ensure our research reflects as strong a minority influence as feasible.”

Work on The Depravity Standard began in 1998, probing the reasoning behind higher court decisions on criminal cases charged as heinous, atrocious, and cruel. Professionals and trainees in law and forensic science were also surveyed on features intent, actions, and criminal attitudes that set off the worst of crimes.

Out of this early work emerged 25 elements of intent, actions, attitudes, and victimology that by 2001 would become the focus of the Depravity Standard research. Some examples include: intent to emotionally traumatize (intent), targeting a person based on prejudice (victimology), prolonging a victim’s physical suffering (actions), and feeling pleasure or indifference in response to a crime and its impact (attitudes). Each of these qualities ensures that depravity be proven by factual details as opposed to impressions, speculation, and prejudice. An accused’s race, ethnicity, gender, national origin, religion, sexual orientation, education level, and socioeconomic status are no longer able to be factored into findings of depravity.

The need for such an unprejudiced instrument is all too apparent considering the realities of bias and racism in sentencing decisions. Particular concern has long been raised about the death penalty as it applies to minority defendants. A number of studies have been published suggesting that minority defendants are more likely to receive capital punishment than Caucasian defendants for similar crimes. One law review published by New York University[1] found, from their sample of 445 jury-eligible citizens, that people generally suffer from an unconscious bias when tasked with delivering a capital punishment verdict, reflecting tendencies that devalue the lives of African Americans. Since jurors of a capital case must be willing to impose either a life sentence or the death penalty in order to serve, the risk of a capital verdict for an African American defendant may be even higher.

In 2007, a 34-year-old African American man from Delaware was sentenced to death for breaking into the apartment of a University of Delaware student, raping, and killing her by strangulation. He tried to evade capture by setting fire to the crime scene and writing “KKK” on the wall to make it look like a hate crime. In 2015, a 33-year-old white man from Florida was sentenced to life in prison for breaking into the home of a couple he used to live with, beating the wife with a pool cue, raping her, then slitting her throat with a kitchen knife. In his testimony the perpetrator stated the killing was accidental and blamed the victim by indicating they were having an affair and she was upset that he helped her husband meet other women.

Under Delaware Legislation Del. Code § 4209 (e)(1)(l) the death penalty can be applied when ‘The murder was outrageously or wantonly vile, horrible or inhuman…’ Under Florida legislation F.R.S. § 921.141 (5)(h) the death penalty can be applied to cases that are ‘especially heinous, atrocious, or cruel.’ What thresholds would jurors have employed in each of these cases that one crime warranted the death penalty and the other did not? Is justice better served when jurors currently make a gut level decision about when a crime is, or is not, depraved? In the absence of guidance, bias creeps in far more often than many admit. And in the absence of guidance, how can the general public have confidence in the process of sentencing?

The Depravity Standard research therefore has incorporated an important companion to defining a standard of what is a “vile,” or “depraved” crime – the general public itself. Through a series of surveys at www.depravitystandard.org and available to all, the research has incorporated large scale public participation. Survey data from over 40,000 participants has demonstrated consensus agreement, across a range of demographics, for items’ reflecting somewhat or extreme depravity.

Astonishingly, the research has demonstrated that even when given an abstract notion such as evil, a societal consensus can be reached.

Now, Depravity Standard researchers are again surveying the public to help to establish weights for different items. Would intent to emotionally traumatize a victim be weighted greater, for example, than actions that cause great physical suffering?  By how much?

Furthermore, Dr. Welner and his team, led by Research Director Kate O’Malley, are refining the measurement capabilities of the Depravity Standard to enable a comparison of relative depravity between co-defendants. Equal justice is sometimes lost to those codefendants that are simply more poorly situated and unable to afford a better attorney. “Focusing a case on its evidence and facts protects disadvantaged defendants from backroom dealing in plea negotiations,” observes Ms. O’Malley. The Depravity Standard research team is refining the definitions of its items through the mining of information from many hundreds of cases, from jurisdictions around America.

Basing an evidence-driven inventory on survey consensus from the American public has another advantage. Those who serve on juries, who come into the criminal justice system, and whose loved ones are victimized or are incarcerated will have greater confidence in the fairness of sentencing that is driven by Americans taking a direct role in shaping it. Those who have participated in the Depravity Standard surveys will have built the laws themselves.

Once implemented, the Depravity Standard will guide all stages of the justice process; serving as a tangible guide for judges, juries, and other members of the court during the investigative phase of criminal trials. Law enforcement officials will use the 25-item inventory to assist in focusing on more substantive points of the alleged intent, actions, and attitude about the crime. Juries will benefit from knowing more about the case and what actually happened. Additionally, the tool will assist parole board members in making more informed decisions regarding which inmates are imprisoned for crimes that show no elements of depravity, and are therefore most deserving of early release. Since early releases are a useful way to alleviate prison overcrowding, developing tools to make those decisions fair, rather than based upon privilege, serves an important justice interest. In a system that dictates to the African-American community, it is high time that we have a voice that shapes laws, rather than the other way around. Black, Latino and Asian, and Native American voices will be heard through the data of the online surveys at www.depravitystandard.org.

For crimes like the Delaware and California hit-and-runs, the cases may leave first-time jurors thinking it is the worst crime they’ve encountered; they do not have another reference point against which to measure it. It is unsympathetic enough that these two men were operating vehicles under the influence of drugs and alcohol – but then to fatally hit someone and speed away without hesitation? Unimaginable. This framing may prompt like-minded jurors to impose a merciless punishment like a three-decade sentence. Yet, when we take into account the 25 items of the Depravity Standard, one may recognize that the defendants did not; 1) intend to physically or emotionally harm the victim, 2) did not target the victim for prejudicial or discriminatory reasons, 3) did not unrelentingly attack or actively prolong the victims suffering, 4) did not blame the victim, or feel indifference to the crime; as evidenced by the Delaware man calling the police, and the California man’s apologizing to the family and demonstrating remorse. For the New Castle perpetrator, Delaware sentencing guidelines his maximum sentence to not exceed 6.5 years. The Newport Beach driver was not so lucky – he received a sentence of 15 years The Depravity Standard will help to expose maximum sentencing ceilings that are out of step with the public consensus and society standards.

The application of the Depravity Standard will ensure that crimes carried out with purposeful malice and that incorporate sinister features above and beyond what is seen in the everyday murder, assault, rape, or nonviolent felony, are prosecuted through a societal-sourced scope. To make the ‘time fit the crime’ we must distinguish the worst of offenses from the pools of offenders, and reserve the harshest punishments for those crimes that cross the threshold of what we, as a community, have identified to be qualities of the worst-of-the-worst.

This landmark social justice initiative is inviting you to participate in the research at www.depravitystandard.org — make your voice count in reshaping the criminal justice system of tomorrow.

[1] Levinson, J. D., Smith, R. J., & Young, D. M. (2014). Devaluing death: An empirical study of implicit racial bias on jury-eligible citizens in six death penalty states. NYUL Rev.89, 513.

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If you would like to learn more about the research or would like to reprint this article, please contact the researchers at questions@depravitystandard.org

You can find the original Delawareblack.com article here

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