Courts across America are using terms like ‘heinous’, ‘atrocious’ and ‘cruel’ when weighing penalties for a variety of crimes. However, the interpretations of these terms and resulting punishment, vary from state to state.
The Forensic Panel seeks to provide a standardized scale for the justice system to determine with scientific certainty which aspects of a crime represent depravity. The scale addresses not who is depraved, but rather, whether a specific crime reflects depraved intent, actions and/or attitudes. Therefore, The Depravity Scale is race and socio-economic blind, and promotes fact-finding in resolving questions of depravity.
Michael Welner is a forensic psychiatrist currently seeking to define evil for the courts with his Depravity Scale (www.depravityscale.org), an online survey generally targeted at lawyers and judges. In his survey, Dr. Welner gives examples of specific crimes and asks responders to rate them according to the degree of depravity. By this he hopes to define such terms as ‘heinous,’ ‘cruel’ and ‘atrocious’ so that courts across the 50 states will have consistent guidelines for punishing crime. Dr. Welner wants to ensure a ‘balanced representation of differing viewpoints’ and claims his scale promotes ‘fact-finding in resolving questions of depravity.’
Dr. Welner’s goal is admirable. Intuitively he realizes that objectivity is in short supply in the justice system and he is seeking an objective method for determining how to punish criminals. In fact objectivity is central to the meaning of the term ‘justice.’ But while Dr. Welner’s goal is valid, his method is flawed.
With his scale, Dr. Welner seeks to determine ‘with scientific certainty’ which aspects of a crime represent depravity, i.e., ‘evil.’ However, an opinion poll can never determine this. Dr. Welner’s survey is scientific, i.e., objective, only if his aim is purely statistical – meant to collect and study the views inherent in American culture today. This is certainly beneficial for a psychiatrist studying human behavior, but it is entirely useless if one’s aim is to further justice. The poll will tell you what people’s valuations are, but it can not tell you what those valuations ought to be. It cannot tell you what is right or wrong. An opinion poll, or democratic vote, does not ensure justice – in fact it can, and often does, ensure the opposite. Throughout history slavery and genocide have been sanctioned by the majority – and written into law – but they were never right. (Incidentally, the jury, which to some might seem like a kind of democratic vote, is in fact a system for determining the truth of the matter at hand by limiting the expression of bias – hence juries deliberate, and their verdict must be unanimous.)
Words like ‘heinous’, ‘atrocious’ and ‘cruel’ are not useful additions to the language of law. In fact, they serve only to confuse and subvert the underlying ideals. Dr. Welner does not question the use of such terms by the courts, but he does realize that they are at the heart of the problem. In essence, Dr. Welner is studying, not justice, but vengeance. Vengeance is related to justice in that its goal is the same, but its process is very different. In order to understand how the subjective emotional desire for vengeance translates to an objective pursuit of justice we might first ask why we experience an emotional need for vengeance in the first place.
Vengeance is the original, evolutionarily driven, emotional response of an individual to the use of force against his person or property. The desire for vengeance compels a person to act in his own defense and hence preserve his life. But ‘vengeance’ implies that a man acts after the infringement of his rights. Of what use is this? Any school child abused by a bully can tell you – deterrence. Exacting vengeance not only gets the bully to leave him alone in the future, it serves as an example to anyone else who might think to do him harm. The desire for vengeance, however, is an individual emotion. The degree to which an individual feels the need for vengeance in any given instance depends upon who he is; his personal experiences in life; his personal views and calculations. Justice, on the other hand, is an objective pursuit of the same goal of deterrence. Justice is an ideal. It is not based upon a collective consensus, but is deduced from an axiom with cold hard logic. Justice is the scientific study of deterrence.
Justice begins with life. Human Life is the source of the axiom from which all law is a priori derived: every individual possesses a right to life. This axiom is the starting point for an ideal known as ‘Natural Rights.’ Natural Rights do not exist in nature. They are an ideal based upon the notion that life (a natural phenomenon) is the ultimate human value because without it no other human values are possible. From this initial axiom, that all individuals possess a right to life, the corollary is deduced that all individuals also possess the right to sustain their lives by their own hands, which means they must have the right to property in their own bodies and the fruits of their labors. No man can have the ‘right’ to sustain his life at the expense of others for this violates the rights of the others to their own lives and property. This ideal of Natural Rights is the basis for the American justice system and supplies the specific definition of the term ‘crime’ namely, the initiation of force against another individual with the intention of depriving him of his rights.
The most just form of punishment known to man is the ancient ‘eye for an eye.’ Under such a system crime is deterred by exposing the criminal to a punishment based strictly upon his specific crime. There is no need to define ‘evil’ as that definition is already implicit in our premises and hence in our definition of the word ‘crime.’ With the definition of ‘crime’ in mind, one can see how the ancient concept of ‘an eye for an eye’ has the added benefit of preventing the punishment of ‘victimless’ crimes, i.e., non-crime. We can now use the idea of ‘an eye for an eye’ as a test. If we are not able to imagine punishing the proposed crime in this manner, then we are not dealing with a crime at all.
So if ‘an eye for an eye’ is so good, why don’t we use it? While ‘an eye for an eye’ is the most just form of punishment, it gets a lot of bad press. Gandhi once said ‘An eye for an eye leaves the whole world blind,’ and many people agree with this view. But by his statement, Gandhi implies that there is no benefit to punishment at all, that individuals have no ability to weigh the consequences of their actions. By Gandhi’s logic, there are no such things as crimes at all, only accidents. Of course, individuals do have the ability to weigh the consequences of their actions and to abstain from infringing upon the rights of others. The law, as an ideal, as the scientific study of deterrence, recognizes the difference between a crime and an accident, hence, ‘an eye for an eye’ does not leave the whole world blind, it leaves criminals blind.
There are other objections to the use of ‘an eye for an eye.’ America’s founders forbid the use of ‘cruel and unusual’ punishments, possibly wishing to prevent the use of torture – which in cases of ‘an eye for an eye’ might be warranted. Their wording still inspires considerable debate over whether the death penalty qualifies as ‘cruel and unusual,’ which is another example of why such wording ought to be avoided. People often feel that punishments must be humane and merciful. The founders were not so concerned about being humane and merciful as they were about limiting the power of the state. They recognized that the state, with it’s monopoly on the use of force, could easily turn against the citizens it was instituted to protect and instead of fighting crime, perpetrate it. It is for this reason that they believed in setting limits with regard to punishments.
Another argument against ‘an eye for an eye’ is one of practicality. While it might be imaginable, it is certainly not always possible to inflict upon a criminal the very same punishment as his crime inflicted upon his victim. For the sake of our study at this point let’s assume that it is possible to inflict such a punishment. How, then, do we determine the proper punishment for a specific crime which may include circumstances that it is not desirable to punish? We can effectively determine the seriousness of a specific crime, and therefore how it ought to be punished, by again, considering the purpose of punishing it in the first place – deterrence. Now, we can ask, to what degree is it necessary to deter a particular act and to what degree is it possible to deter it? There are three determinants.
- The possibility of the payment of restitution: The need for deterrence is initially determined by the degree of difficulty associated with restoring the victim to his pre-harmed condition. The theft of a loaf of bread, for example, which can easily be returned or replaced, is much less serious than the killing of human being, for which there can be no restitution at all. A continuum of seriousness exists between such extremes.
- The degree to which the crime was provoked: it would not be just to subject an individual to death for the killing of someone who attacked him. Provocation also includes a continuum. We understand that even a premeditated homicide can be provoked, as in the case of a son who murders his father after suffering years of brutal abuse by him.
- The degree to which the crime was intentional: A non-intentional act cannot be deterred. Here, too, exists a continuum, hence we recognize that crimes can result from negligence or unnecessary risk-taking.
One can now see that if the highest possible punishment is ‘an eye for an eye’ specific details of a crime either mitigate punishment (lessen it) or they do not. There are no aggravating details that need be described by such terms as ‘atrocious,’ ‘heinous,’ ‘cruel,’ or ‘depraved.’ For example, a killing is punishable by death, unless it is mitigated by the circumstances of the act – i.e., provocation or lack of intention. Where the death penalty is debated or undesirable, the harshest punishment from which mitigation would take place might then be life in prison. It must be noted that the lessening of punishment because of mitigating factors is not the same thing as mercy. Mitigation can be defined as the lessening of the need to (or the ability to) deter an act which therefore results in a lesser punishment. Mercy, on the other hand, is the lessening of punishment despite the need to (or the ability to) deter. Mercy always weakens justice; Mitigation strengthens it. The lessening of punishment in order to check the power of the state, while necessary, is another matter entirely.
Dr. Welner’s Depravity Scale seeks to correct errors in meting out justice but it seeks to do so with a flawed method that gives credence to the errors already committed by legislators, namely their inclusion of such terms as ‘heinous,’ ‘atrocious,’ and ‘cruel’ into the law in the first place. Also, Welner mentions that his survey addresses not people, but specific crimes. But what crimes are these? No two crimes are precisely alike – no two criminals experience the same situations, motivations, provocations, or intentions – even as they commit the same acts. There is an ongoing tendency in law to attempt to pigeonhole every possible crime with ready-made rules for punishment – a precedence intended to remove the need for thinking and deliberating – perhaps with the ultimate goal of doing away with the jury altogether. Collecting viewpoints won’t make this goal scientific, it will only further subvert the ideal of justice by losing sight of the logic upon which it is based. This leads to a whole host of perversions such as the prosecution of ‘victimless crimes’ (an oxymoron), the equation of mitigation with mercy (a contradiction), and the precedence of mandatory sentencing which often removes the ability of a defendant to present mitigating circumstances at all – which is the source of yet another perversion: the ‘insanity defense’.
‘Evil’ and ‘justice’ are not relative terms made up of the averaging of the opinions of average people. Helping lawmakers mete out more just punishments requires reasoning and objectivity, not opinions. This requires time, effort, thinking, and deliberating, but the goal is so important, it is well worth it. I congratulate Dr. Welner in noting an area of the law that is desperately in need of reform, but I ask him to re-evaluate his method. Such a study as his survey is an interesting and worthy effort for the advancement of psychological science, which is itself desperately in need of reform, but for the advancement of justice, a different approach is needed – one that recognizes the value of human life and importance of a conceptually based system of justice – one that does not lose sight of the ideal upon which the American justice system was founded.