Sentencing Juvenile Killers - How Severe was the Crime?

The Depravity Standard Applied in Upcoming Journal of Forensic and Legal Medicine

Los Angeles?-?The upcoming issue of the?Journal of Forensic and Legal Medicine?demonstrates the application of the Depravity Standard to distinguish the gravity of particular murders committed by adolescents. This represents an important new aid to prosecutors’ and courts’ decision-making in how severely to charge each defendant and each case.?

Courts around the United States routinely struggle with the appropriate sentencing of adolescent murderers. Only now, with the validation of The Depravity Standard, can the heinousness of a murder be assessed with reliability and validity, allowing for another data point in judicial decision-making.

This week, for example, the familiar controversy sparked in Los Angeles as it has in other cases of undisputedly guilty inmates convicted of murders committed in adolescence. District Attorney George Gascon recommended the lifting of the death sentence of Raymond Butler, who murdered two strangers in a 1994 carjacking. Mr. Gascon cited the immaturity of the then-18 year-old perpetrator, evoking the United States Supreme Court 2012 decision in?Miller vs. Alabama?and the 2005?Roper vs. Simmons?ruling outlawing capital punishment of those who offended before age 18. The district attorney’s actions prompted outcry in a community already pushing for his recall based on other cases of more lenient prosecution than expected.

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It was in?Miller?that the Supreme Court eliminated mandatory life sentencing for convicted killers who offended prior to age 18. Citing the immaturity of youth, the?Miller?Court allowed for life sentencing, but ruled that trial courts needed to evaluate each case on an individualized basis to account for the defendant’s background, potential lack of maturity, and future risk.

Since then, courts have been awash with inmates sentenced to death at age 18 and above who have claimed immaturity at the time of their offense and citing to the same arguments that were persuasive in?Roper?and?Miller.

However, brain science and its application to whether a decision to murder is immature remains very poorly researched beyond advocacy by those opposed to severe punishment of adolescent murderers. The major psychiatry and psychology associations, as practitioners know, align closely with the liberty goals of murder defendants, as opposed to victim and public safety goals of retributive justice or incapacitation.

In reality, there are killers whose offenses at age 19 and even older reflect immaturity, just as there are killers who are mature and predatory well before 18, and aging only ripens their destructiveness and lethality. For this reason, recommendations by prosecutors such as Gascon in the Butler matter are quickly met by cynicism that they reflect ideological biases against punishment, enabled by the arguments of fellow travelers who are at times no more than hired gun experts.

Overlooked in these cases is that the Supreme Court’s earlier decisions also highlighted the importance of individualized case determinations. This means that a court has the prerogative to sentence a given convicted killer to life or to as less as it chooses – based on truly getting to know the offender and the offense.

The Depravity Standard is a 25-Item roster of specific types of victim choice, intent, actions, and offender attitudes about the crime, all of which have been?validated?as components of the worst of?murders. Developed by forensic psychiatrist Michael Welner, M.D., Chairman of The Forensic Panel, The Depravity Standard was refined as an objective, evidence-driven measure to create a narrowed class of the worst of crimes, and separately validated through protocols for murder,?other violent crimes, and non-violent crimes.

In the publication, “The Depravity Standard and individualized assessment: A case study modality for Miller resentencing cases,” Dr. Welner and criminology professor Matt DeLisi, Ph.D. demonstrated the application of The Depravity Standard to none other than the Miller case itself – which involved two perpetrators, Evan Miller and Colby Smith.

Closer scrutiny of the case evidence allows for investigators and fact finders alike to apply the definitions of The Depravity Standard based on case investigative data, rather than to depend solely on expert analysis. As such, points out Dr. Welner, “The Depravity Standard empowers judges and juries to think for themselves, and ask penetrating questions, and guides investigators to search for granular data that informs those questions. A judge that has more data about a case makes a more fair and informed decision about that case.”

In the case example of the article, The Depravity Standard demonstrates itself to not only inform the degree of culpability and relative severity of a murder, but to distinguish between perpetrators of the same crime. With respect to questions of immaturity, one’s role as an accessory or instigated party may reflect immaturity, poor judgment, impulsivity, and other factors implicated by the?Miller?Court. Predatory, sadistic and manipulative aims are also informed by evidence rather than presumption and other sources of bias.

Dr. DeLisi, who has long contributed to other areas of risk assessment and criminal offending patterns, observed, “Our research moves assessment of juvenile murderers from the philosophical and sociological to the forensic and empirical. Courts have long struggled with how to distinguish one murder from another. The Depravity Standard does so, and in a way in which more evidence yields a higher magnification of those differences. This article demonstrates how user-friendly and sensible the application and scoring of The Depravity Standard can be.”

Adds Dr. Welner, “The Depravity Standard includes a weighting system derived from public survey data. When the public, which makes up juries, guides such a societal standard, jurors can have more confidence in such tools that inform their deliberations in grave sentencing decisions. We continue to encourage public participation in these ongoing Depravity Standard surveys that refine its application in cases to come.”

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To read the article from the Journal of Forensic and Legal Medicine, click here?The Depravity Standard - Miller cases JFLM.pdf.

To read more about the Depravity Standard validation studies, click here?The Depravity Standard I-An introduction.pdf,

here?The Depravity Standard II-Developing a measure of the worst of crimes.pdf

and here?The Depravity Standard III-Validating an Evidence-Based Guide.pdf.

To participate in the Depravity Standard Study, click?here.