Adding Method to Judging Mayhem

April 2, 2007
Sidebar
Adding Method to Judging Mayhem
NEW YORK TIMES By ADAM LIPTAK

There are, Dr. Michael H. Stone says, 22 varieties of killers, and he
has ranked them in order of evil.

The worst are your psychopathic torture-murderers, at least where
torture is the primary motive. Near the other end, at No. 4, are those
who killed in self-defense "but had been extremely provocative towards
the victim."

Dr. Stone, a professor of clinical psychiatry at Columbia, said he had
put the scale together based on the biographies of hundreds of killers.
"I have a very extensive spreadsheet,

" he said.

Dr. Michael Welner, a clinical associate professor of psychiatry at New
York University, has even greater and much more practical ambitions. He
is at work on a "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.

I took the survey the other day, at www.depravityscale.org
<http://www.depravityscale.org/> , but I found
it hard and largely pointless to try to distinguish between, say, a
contract killing and mailing anthrax.

It feels odd to put degrees of depravity up for a vote, but Dr.
Welner's work follows the erratic logic of death penalty
jurisprudence.

For ordinary crimes, we rely on legislatures to distinguish among
blameworthy acts in criminal codes. Juries determine guilt. Judges
decide sentences, often guided by sentencing laws.

But we ask more of juries in capital trials. They must decide whether
convicted defendants deserve to die.

In the second, sentencing phase of a capital trial, juries weigh
aggravating factors against mitigating ones. The sum of that calculation
equals life or death.

Most states have long lists of possible aggravating factors, often
including, for instance, killings committed during other felonies,
torture and terrorism. But prosecutors are fond of relying on one
aggravating factor in particular - that the murder was heinous,
atrocious or cruel.

That is pretty vague, and that is where Dr. Welner comes in. His aim is
to use the objectivity of science to help jurors confronted with that
phrase to sentence consistently.

Dr. Welner said he had collected 17,000 responses to one part of the
survey. He wants more before he rolls out his depravity scale for use in
the courts, but he gave me a tentative idea of what people are saying.

Almost everyone agrees that intending to inflict emotional trauma
qualifies as depraved. But what racked up the biggest numbers as
"especially depraved," he said, was "prolonging the duration of
a victim's suffering."

"The weakest supported item," Dr. Welner said, is an "extreme
response to a trivial irritant." The survey gives road rage as an
example.

The survey could also help lawyers in selecting juries. Women, Dr.
Welner said, are more likely to think particular acts are especially
depraved. Defense lawyers and prosecutors, perhaps because they are
inured to depravity, tend the opposite way.

Dr. Stone, who developed the 22-part taxonomy of evil, said his work
was not meant for judges and juries. "I don't much care about the
legal system," Dr. Stone said. "Welner is transfixed with the legal
system. I'm not."

The Supreme Court has never been particularly comfortable with vague
phrases like "heinous, atrocious and cruel." Justices have
repeatedly mused that all murders can be said to be depraved, and the
court has sometimes struck down death sentences based on that factor.

But in 1990 the court sustained an Arizona death sentence based on a
finding that the murder had been committed "in an especially heinous,
cruel or depraved manner." The court said the sentence passed muster
because Arizona courts had defined the phrase narrowly.

The list of what qualifies as depraved in Arizona, however, includes
the senselessness of the crime, the helplessness of the victim, the
apparent relishing of the murder, the age of the victim, "needless
mutilation" (as opposed, one supposes, to the kind necessary to the
murder), the fact that the victim had been kind to the killer, special
bullets, "gratuitous violence" and "total disregard for human
life."

As Justice Harry A. Blackmun said in dissent in the 1990 case, "there
would appear to be few first-degree murders the Arizona Supreme Court
would not define as especially heinous or depraved."

Dr. Welner intends to bring some order to this chaos, to sort out the
mayhem.

Prof. Robert Blecker, an authority on the death penalty at New York Law
School who sits on an advisory board assisting Dr. Welner, said the
survey had the potential to focus attention on sadistic cruelty, which
he said "is the essence of who deserves to die."

But Professor Blecker also 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?"

The current system of capital sentencing, which the Supreme Court likes
to call guided discretion, is not quite an oxymoron. But, as efforts to
make scientific sense of it demonstrate, it is something like one.