Psychiatry, the Law, and Depravity: Profile of Michael Welner, M.D. Chairman, The Forensic Panel

Click here to take part in Dr. Welner's Depravity Scale test. Over 26,000 people have taken the survey to help society determine 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.

In over 20 states that have death-penalty statutes, if a crime is considered particularly "heinous," "vile," "depraved" "atrocious," "inhuman," or "horrible," for example, the defendant can be considered for a death sentence. Other crimes, from kidnapping to sex offenses to parole, can be sentenced differently if they have likewise been distinguished as, evil. Yet there is no guidance for juries to determine just what these terms really mean.

These imprecise if very dramatic labels often blur the true nature of the actions in question and encourage juries to make emotion-based judgments. That can mean harsh penalties that are not necessarily decided in a fair manner, or lenient penalties when the true degree of depravity goes unrecognized. Appreciating the impact of this injustice, Dr. Welner has embarked on a quest.

"From my own experience consulting as a forensic psychiatrist to both prosecutors and defense attorneys, I see these terms — "depraved," "evil," "heinous," being thrown around in capital and other criminal, even civil cases," Welner said. "It is terribly difficult for a judge or jury — let alone a forensic mental health professional — to try to resolve them in a fair and non-arbitrary way."

Dr. Welner's early research on evil in crime and courts taught him that "What is considered 'heinous,' 'atrocious,' and 'cruel' in Oklahoma may be different from what those terms mean in Florida," he continued. "And a jury in a rural part of Florida may see things differently than a jury in an urban area."

And so Dr. Welner decided to try to speak to that disparity with a standardized set of criteria, based on facts and evidence. "We need consistency, and in particular standards that reflect the best that all of forensic science has to offer. From my own vantage point of working within the cases, juries and judges don't see nearly as much as they should be seeing when it comes to forensic evidence about what a person's intent was, what a person actually did, and what a person's attitude was about what he did. Even from a mental health standpoint, there's far more effort devoted to the question of who a person is or why that person did something rather than just look at what the person did."

Dr. Welner believes that while "who" and "why" are important, it's time to better assess the "what."

In 1998, he examined over 100 recent court cases in which findings of "depraved" or "heinous" were upheld or reversed, culling an inventory of examples of intent, actions, and attitudes that were regularly upheld as examples of evil in crimes. This initial research yielded twenty-six items for closer study in the Depravity Scale, a device he proposed using to establish a societal consensus about the components of a depraved crime.

"The general public makes up the victims, the defendants, their families, those who keep us safe and those who sit on juries" reasoned Dr. Welner. "In order for the public to have confidence in the justice system, it has to be more directly involved in defining the standards of the laws that affect us all."

The Depravity Scale was set up to sample the perspectives of the general public on a confidential website. How, asked Dr. Welner, would randomly participating individuals appraise the "intent," "victimology," "action," and "attitude" items under study? For example, how would they judge an offender's intent to cause emotional trauma or physical disfigurement or to prolong an attack? Would the respondents classify these acts as especially depraved, somewhat depraved, or not depraved? Could consensus even be achieved?

Over 20,000 participants have taken part in this exercise to date, validated through a response verification email system. Welner's research has analyzed item-by-item responses to see how they were influenced by such variables as:

• geographic location
• ethnic group
• spiritual orientation
• history of violent victimization
• history of incarceration
• attitude about the death penalty
• profession
• involvement in criminal cases
• age
• gender

The most important finding to date is that for sixteen of the twenty-six items under study, over 90% of respondents agree that such items are either somewhat or especially depraved. "We have established," explains Dr. Welner, "that a consensus as to what is an evil crime can be achieved."

These sixteen items will almost certainly be included in the final version of the Depravity Scale, as will a number of additional items that also enjoy strong consensus agreement, pending completion of validation studies.

A subsequent survey was added in 2006 to establish relative weights for the different examples of intent, actions, and attitudes under study. "Even among examples of depraved criminal activity, some aspects of depravity are viewed as more severe than others." Already 7,000 respondents have contributed to this more recent stage of the Depravity research.

Though Welner stresses the need for further refinement, he adds, "When I first approached this topic I was confronted with the daunting history that this was too ambiguous, too inscrutable, too controversial, and too emotional. Results that reflect a consensus show that, with deliberate study, we can achieve the precision that can assist courts."

Welner was surprised by the degree of consensus, as well as by some of the demographic results. "The most important variable in how people differ in their perception of depravity is gender, and to a lesser degree, spirituality. With gender, we see a statistically significant difference on all twenty-six items. Women evaluate each of the items as especially depraved, as opposed to men who would be consistently more likely to say something is not depraved. No other variable compares, although highly spiritual individuals are also more likely to appraise items as especially depraved."

He adds the interesting finding that support or opposition to the death penalty showed no difference in responses, and that prosecutors and defense attorneys had more in common with each other, in their perspectives on depravity, then either did with the general public.

The Depravity Scale surveys are gathering information that hopefully will one day assist war crimes prosecutions in international courts. While consistency was found in the data from among American states, the same was not true when comparing British to American respondents. "We've found that our appraisal on a number of items differs significantly from the way the British look at it. For numerous items, the British are more likely to experience certain elements of crime as not depraved."

In the coming months, Dr. Welner hopes to eventually acquire sufficiently large samples from populations in states who have yet to participate heavily in both studies. He also hopes for more participation from more minorities. "Blacks and Latinos are heavily represented in the criminal courts, and we would like to make sure that minority communities exercise their voice in crafting a societal standard for depravity," notes Dr. Welner.

Each of the items under study has been carefully defined, with input from an advisory board of over sixty nationally recognized scientists and scholars from sixteen different disciplines. "Forensic anthropology engages evil in crime differently from psychiatry, which views depravity from a different vantage point than forensic pathology," explains Dr. Welner. "We've incorporated the scientific perspective from a range of specialties to account for how different actions and intent can present in assaults, in sex crimes, not merely murder. Since there may be depravity in assaults, for example, expertise from the trauma and emergency room informs deliberations about depraved crime as well."

With these definitions, crime scene and war crimes investigators can have more specific direction on what to look for in terms of evidence to identify the degree of depravity. In other words, they will be looking for more than just evidence of guilt. Police officers may shoulder an extra burden, but the end result will make for a fairer appraisal of such aggravating factors in court.

Dr. Welner hopes that once the items for a future depravity standard are established, with proper statistical weighting complete, courts will have an evidence-driven Depravity Standard that reflects a consensus of society and is equally applied to Americans of all walks of life.

Dr. Welner is quick to point out that he does not authorize the use of the Depravity Scale research model in cases at this time: "We want to complete validity and reliability research first, and to publish our findings for widespread understanding. At this stage, we're encouraging participation to help to refine the conclusions we arrive at, to refine the eventual Depravity Standard, and to ensure its ethical use when it is applied in actual cases."

Dr. Welner believes that the issue of evil is neglected because therapeutic professions like psychiatry inherently feel they must focus on the good in order to be therapeutic. "To wade in and wrestle with evil means to confront it in ourselves, and that's a painful prospect even for the most stable of us. When I first began exploring this, I never enjoyed it and I appreciated walking away from it. The more I studied it, the more it affected even my dreams. It's an unpalatable exercise," Nevertheless, if we hope for fair decisions from juries, someone has to wrestle with these ideas, and getting a better handle on how to define evil crimes will make an important contribution to justice — especially in cases where a person's life is on the line.

Dr. Welner's research, like some of his other initiatives, was inspired by his own case experience. This uncertainty of what constitutes a "heinous" crime arose in a volatile case in Wyoming, into which The Forensic Panel was invited.