For the last decade, forensic psychiatrist Michael Welner has led a quixotic, self-funded effort to create something he calls the Depravity Standard, a crowd-sourced instrument for objectively scoring the level of evil associated with humanity’s most twisted crimes. But can a scientist really define the outer edges of our morality? Rachel Monroe explores Welner’s efforts to create a standard that will “make sure we’re judging the what of the crime instead of the who.”
Our justice system holds that some crimes are more terrible, and thus worthy of harsher punishment, than others. Murder is differentiated by degree; a premeditated killing generally earns you more time than a crime of passion. The presence of certain “aggravating circumstances”—prior criminal history, for example—may result in more significant penalties. The most controversial of these factors is whether a crime can be judged “heinous, atrocious, cruel, or depraved,” language that many states have adopted in some form. The vagueness of this broad standard and its inconsistent application has resulted in a number of important Supreme Court cases about capital punishment. The 1980 Godfrey v. Georgia case concerned Georgia’s version, which applied to murders that were “outrageously or wantonly vile, horrible or inhuman.” Stressing the need for “clear and objective standards” in his opinion, Justice Potter Stewart wrote: “There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder” as meeting the standard. Some states have tried to make their standards more objective by narrowing definitions or adding required elements like torture. But in many states, even the clarified language reads like a thesaurus entry: In Arizona, “especially heinous” is defined as “hatefully or shockingly evil, in other words, grossly bad”; in Oklahoma, heinous means “extremely wicked or shockingly evil,” and atrocious means “outrageously wicked and vile.”
None of these are neat and easy categories. If some murders are especially atrocious or cruel, that implies that there’s also garden-variety atrocity and murders that aren’t merciless. But what does an average atrocity look like? Start trying to rank different kinds of awfulness and you quickly find yourself in the middle of a queasy moral puzzle. It’s no surprise, then, that juries often struggle with these judgments. In April, former football player Aaron Hernandez was convicted of first-degree murder for killing his fiancée’s sister’s boyfriend. The jury determined that his crime was characterized by extreme cruelty or atrocity and sentenced Hernandez to life in prison without the possibility of parole. “The shots. There were six of them. That’s extreme,” juror Rosalie Oliver said in a post-trial press conference. Defense attorneys disagreed: “This is not your classic case of cruelty, where somebody kills someone over a lengthy period of time,” Boston defense attorney Martin Weinberg told the Hartford Courant. Hernandez’s legal team has indicated that a dispute over the definition of “extreme cruelty” will be at the center of its appeal.
As a forensic psychiatrist, Welner saw firsthand how the fuzziness of language created confusion and inconsistency in sentencing outcomes. A 1986 survey of cases involving homicides deemed “especially heinous” found no unifying thread that linked the crimes or differentiated them from non-heinous murders.
The messiness of this system, with all its bias and guesswork, troubled him. And so, in 1998, he began work on the Depravity Standard, a crowd-sourced instrument for the rational evaluation of extreme crimes. Instead of relying on gut feelings about what constitutes depravity—gut feelings that could easily be manipulated by a charismatic prosecutor, or an unappealing defendant—Welner envisions judges, juries, and parole boards scoring crimes on the Depravity Standard to determine with some objectivity whether they are indeed examples of the worst. “When the average plumber or librarian or whoever is exposed to my world, the world of violence, where people do really bad things to other people—most of them are really disturbed by it,” Dr. Michael Bourke, the chief psychologist at the United States Marshals Service, told me. “The Depravity Standard would help people take something really horrific and think about it in a way that’s not so visceral.”
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