Forensic Psychiatrists hike along pitch black and winding roads of the mind as a matter of course. Encountered, in all the darkness, are people with stories to tell of mistakes and misdeeds, of criminal acts and often, criminal minds. We share these tales of sociopaths, the ill, and those in whom we see ourselves, insulated by our defenses. Even amidst this, evil appears only occasionally, undetected and unexpected, but most unforgettable. For years, the behavioral sciences have maintained distance from explaining evil acts and evil minds. The result? A lingering gap between criminal responsibility and morality for which no explanation is offered. A lack of direction continues to force courts to employ arbitrary standards for wickedness.
What is "depraved," as in depraved indifference? In New York, where depraved indifference means circumstances which create a grave risk to human life, depravity aggravates an assault charge (NYS CPL § 120.10). Or, even if no physical injury occurs, depravity warrants a charge of reckless endangerment (NYS CPL §120.25). Defense attorneys bemoan how some prosecutors charge depraved indifference, talking advantage of the vagueness of its definition to aggravate the charges against defendants alleged to have committed a variety of crimes.
Nowhere is the standardless standard more fraught with consequences than in capital offenses. All across America, death penalty statutes include various aggravating and mitigating circumstances. See Table 1. A closer look reveals a thesaurus of behaviors and actions listed as aggravating factors. Such terms as "especially heinous;" "outrageously vile;" "wanton;" "cruel;" "atrocious;" "horrible;" and others are used time and again in today's courts. What is the difference between horrible and vile? If you know, skip to the next section of this magazine. If, like the most triers of fact, you do not, you are not the first to run scrambling for the dictionary.
Even the United States Supreme Court has repeatedly engaged in a battle of the wordsmiths. In Arave v. Creech, 113 S.Ct. 1534 (1993), the Court considered the dilemma of Thomas Creech, an Idaho maximum security prisoner who pulverized another inmate who had first assaulted him with a sock full of quarters. Mr. Creech received the death penalty after being designated a "cold-blooded, pitiless slayer." The sentence was challenged on the basis of Walton v. Arizona, 497 U.S. 639 (1990), which required that aggravating circumstances be defined through objective circumstances. The Walton ruling was a further refinement of the opinion in Furman v. Georgia, 408 U.S. 238 (1972), which established that consideration of aggravating circumstances in death penalty cases is unconstitutional if too much discretion is given to the sentencer, or a risk is created that the sentence will be given in too arbitrary a manner. What is cold-blooded? The smoldering debate was anything but.
After the Ninth Circuit Court of Appeals held that the characterization of Creech could not be reconciled with his having acted in a violent rage, the U.S. Supreme Court disagreed. "The facts underlying this case could not be more chilling," wrote Justice Sandra Day O'Connor for the majority. "Webster's Dictionary defines 'pitiless' as devoid of or unmoved by compassion...the lead entry for 'cold-blooded' gives coordinate definitions. One, 'marked by absence of warm feelings'... the other...'to mean matter of fact, emotionless.'"
Now, is that clear? Not to Justice Harry Blackmun, who dissented, "in ordinary usage the nebulous description 'cold blooded' simply is not limited to defendants who kill without emotion." To illustrate his point, Justice Blackmun collected news articles from around the country that applied the expression, "cold-blooded" to a variety of homicides.
How isolated is the case of Arave, where the aggravating circumstances of the offender's behavior and thinking make the difference between the defendant's life and death? Not at all. While the mental health profession avoids the obvious, higher courts across America have been the site of repeated unresolvable battles over what is wanton or what is especially cruel. To read decision after decision, as we do every month here at The Forensic Echo, is especially confusing.
This baroque imprecision challenges more than just the criminal courts. Personal injury plaintiffs seek punitive damages on the basis of "outrageous" behavior. Was President Clinton outrageous for having allegedly exposed himself to Paula Jones? Was Mr. Fluharty [The Forensic Echo 2(4) 22-24 March 1998] outrageous for having blown away the mother of his son, then telephoning that son to invite him to witness his suicide? Was O.J. Simpson outrageous the night he left Bruno Magli footprints behind? Are there actions which, by virtue of their especial depravity or outrageousness, warrant more serious monetary penalty? A standard would eliminate the arbitrariness vulnerable to reversed on appeal.
Nowhere is the standardless standard more problematic than in death penalty cases
Even in family court, evil acts of evil parents are open to capricious interpretation. But the vile, horrible, and cruel conduct revealed and alleged in some of these child custody cases is astonishing. Psychologists and psychiatrists masochistic enough to descend into this legal Bermuda Triangle already shoulder, in part, the responsibility of determining who is more evil, and why. This, of course, is more palatably articulated as the "what's best for the child" standard. Burdened with the enormous responsibility of playing God, is it really fair for child forensic specialists to be assessing the presence of neglect without appraising the degree? What would you call the parent who eats while starving the unwanted child she beats every day? Right now, neglectful, and nothing more.
Table 1.
Death Penalty Statutes: Aggravating Behavior
Federal—Heinous, cruel, depraved
NJ, MO, GA, DE, SD—Outrageously or wantonly vile, horrible or inhuman
NC, NE, FL, LA, CA, AZ, AK, TN—Especially heinous, atrocious, or cruel
ID—Utter disregard for human life
MA—Torture or infliction of extreme pain
Evil occasionally poisons the workplace in aspects pertinent to employment law. The heinous and horrible worker, especially destructive, eventually leaves, but no protection exists for future employers. In the military, Court Martial for a crime can lead to a Dishonorable discharge. Even in non-judicial matters, personnel can be given a Bad Conduct, or Less Than Honorable, discharge. In this age of workplace mass homicide, industrial espionage, computer viruses and product tampering, surely there must be behaviors of mental states that would enable a dishonorable discharge in the private sector. Accurate information available to prospective employers helps particularly vulnerable workplaces to steer clear of evil that can wreak atrocious havoc.
Clearly, criminal, civil, employment, and family law address the evil acts of depraved minds on occasion, with little guidance from those they look to about the mind and behavior. Is it time for the mental health professions to show a little professional responsibility? Or does mental health input fail to offer scientifically credible information of use to the trier of fact?
The evaluation of evil can be a moral judgement—and so is the evaluation of sanity.
New to the Neighborhood
Perhaps psychiatrists can offer no expertise in standardizing depravity. Critics of mental health quasi-expertise, such as author Maureen Hagen, offer plenty of examples of psychiatrists and psychologists overstepping available research. From repressed memory to neonaticide, expert creativity in the court has been embarrassing at times. One of the more contested battles over the province of psychiatry occurred over the prediction of dangerousness into the neighborhood of psychiatry was met with stiff and angry resistance, the field has responded with exciting progress (See Lessons Learned From Predicting Dangerousness).
The resistance to mental health scientific input on assessment of evil within the mental health community is fierce. "No competent psychiatrist is so arrogant as to think that human motivation and behavior can be fully explained by current medical and psychological theories. Only God knows the human mind and heart," wrote Robert Simon, a forensic psychiatrist, in his text, Bad Men Do What Good Men Dream (American Psychiatric Press, Washington, D.C. 1996). Dr. Simon's opinion is representative of the school of thought that evil is open to wide interpretation, deservedly at the theological/philosophical level. We are not theologians, we are scientists. Dr. Simon asserts a continuum of good and evil of human behavior. Are bad men merely those who do what good men dream about? When was the last time you ate someone's liver with a bottle of Chianti?
Is there not also a continuum of psychotic and completely sane? Value judgments are a necessary occupational burden of the mental health professional—and the raison d'etre of psychiatrists. Indeed, isn't the evaluation of normal a morality judgment? Thomas Szasz, M.D. is the most vocal of those who question well-established notions of mental illness with often cogent analysis. Insanity: The Idea And Its Consequences (Wiley Interscience, New York, 1990). Just ask the tens of thousands of consumers all over America who consider themselves victimized by some psychiatrist having arbitrarily determined they are "sick." Who indeed is to say?
Is it that psychiatrists feel guilty about tagging someone as evil? What is a worse label, anyway—crazy, or evil? Hard to tell which stigma inspires more revulsion. The need to standardize sickness ultimately established the necessity for the Diagnostic and Statistical Manuals ("DSM") of psychiatry. And what about the alienists who won't quantify evil, but yet, readily offer diagnoses from, ironically, the DSM—which carries a caution about applying the manual to court matters!
Other issues of personal and professional bias intersect with psychiatric involvement in the assessment of depravity. And the future of psychological expertise on evil, like that of dangerousness, is only two degrees separated from examiner bias over the death penalty. Some death penalty opponents, such as the eminent Abraham Halpern, M.D., have zealously argued for the prohibition of psychiatrists and psychologists from examining defendants for competency to be executed. Who then, will do it? Ah, that's the idea. Opponents to the death penalty would wish to thwart any psychiatric effort to better illustrate evil, depraved, vile, and outrageous behavior, because this might result in a death sentence. However, those frustrated by standardless standards that are routinely exploited by prosecutors in far more frequent cases, know that standards can only mean a more selective, more narrow application of the death penalty.
Behavioral sciences preach objectivity even as our role in the criminal court is confined to elaborating on diminished blameworthiness. In personal injury cases, we assess degree of suffering, not of victimization by the actor. Only in the family court is there opportunity for more balanced contribution, in the presentation of both strengths and weaknesses of parents. This implicit bias does little to aid the validity of the science. Making the tools of diagnostic assessment available to both sides is the antidote for the cynicism psychiatry's civil plaintiff/criminal defense bias inspires.
Perhaps mental health has a reason to fear the feeling of omnipotence that involvement in capital cases can inspire. The evaluation of depravity will no doubt bring forward some of the same personalities drawn to corrections, police work, and prosecution by their own sadistic dark sides. And just as the cop who shoves a night stick in a suspect's rectum is exposed in time, so too is the disingenuous sadist expert eager to professionally pull the switch. But we don't disavow the need for police officers, prosecutors and corrections officers just because we realize sadists will be drawn to a vehicle for legalized destruction. And to deny the potentially useful participation of psychology in the evaluation of evil is akin to denying the responsibility to evaluate whether someone appreciated wrong in the first place.
Other critics of the involvement of mental health input fear the expert will usurp the trier of fact. Experts can never offer ultimate conclusions in their testimony, and courts traditionally establish boundaries in case law to set just these limits. Such a boundary would not be difficult to establish in the assessment of depravity.
The most convincing argument to exclude psychiatry from the assessment of cruelty is the available literature. No double blind, placebo controlled studies exist to distinguish evil, depraved or cruel actions or intentions from any others. But neither, for that matter, do studies that distinguish appreciation of wrong, or degree of emotional distress.
Research has, however, focused on distinguishing types of criminality, such as violent and non-violent. Certain personalities, such as the psychopath, who demonstrates a longstanding and somewhat predictable menace to society, have illustrated that there are those without apparent psychosis who are quite different from other humans, even biologically. After considering the understanding gained by generations past, and research results of today, we can apply what we have learned to date to now propose a scale of evil for scrutiny, refinement, and pilot implementation.
Lessons Learned from Predicting Dangerousness
In Estelle v. Smith, 451 U.S. 454 (1981), the presumptuousness of psychiatry to predict dangerousness was placed on trial in the person of James Grigson, M.D. The Texas psychiatrist, responsible for repeatedly affixing the prognosis of dangerous to scores of defendants, sparked a compelling debate on the capacity of psychiatry to predict dangerousness. Studies demonstrated that the accuracy with which future dangerousness was predicted was embarrassingly low. But the Supreme Court, even in considering this fact, would not let psychiatry off the hook. Chief Justice Burger wrote in the majority opinion, "Some in the psychiatric community are of the view that clinical predictions as to whether a person would or would not commit violent acts in the future are 'fundamentally of very low reliability' and that psychiatrists possess no special qualifications for making such forecasts." Quoting an earlier Supreme Court opinion in Jurek v. Texas, 428 U.S. 262 (1976), the Chief Justice added, "prediction of future criminal conduct is an essential element of many of the decisions rendered throughout our criminal justice system. Today, psychologists and psychiatrists are confronted daily with questions of the likelihood of dangerousness. A cottage industry of predicting violence at the workplace has been spawned. Some still protest these expectations on principle. But no one can deny that the burden, placed squarely on the reluctant professional, has sparked important and sophisticated research at improving the way we do predict risk. The prediction of dangerousness remains far from foolproof; but medical science has long accepted less than perfect predictive results. Weighing probabilities is a pivotal decision made every day when physicians recommend medical treatment vs. surgery. Even FDA approved antidepressants are expected not to work thirty percent of the time. We may have already reached the point where risk prediction is more reliable than Prozac.
What Makes Bad Actors Different
This article proposes The Depravity Scale for the clinical assessment of evil behavior and intent in a variety of legal arenas. While the scale proposed is novel, the contemporary psychiatric vocabulary has distinguished a number of diagnostic entities for their different forms of wantonness. See Table 2.
Courts are long familiar with antisocial personality disorder, a condition spawned from childhood. Is there a more pernicious being than the antisocial? Yes. Psychopathy has emerged as an entity with great overlap, but its own personality—literally. Long described in clinical literature, psychopathy was most notable for its attribution to chronic ne'er do well law breakers who periodically created havoc through crime or brazenly exploitive behavior.
What would Megan's Law sentencing be like without the point system?
As we begin to do here with The Depravity Scale, structured interviewing instruments have provided the gateway to understanding psychopathy. Robert Hare, Ph.D., a British Columbia psychologist, developed a 20 item Psychopathy Checklist ("PCL"), in the 1980's which distinguished characteristic personality features and behavior of the psychopath. Research using the validated revised PCL-R (Toronto: Multi-Health systems 1991) has enabled a more precise understanding of the psychopath. Psychopaths, as distinguished by the PCL-R, are especially more likely to offend after treatment. Perhaps this is why today's Canadian prisons factor scores on the PCL-R in parole decision making—which, incidentally, sounds a lot like dangerousness prediction.
Sexual sadism has grown in notoriety through the motivations of some serial killers, such as Jeffrey Dahmer, to satisfy their sexual appetites through their control and destruction of others. Malignant narcissism, elaborated by the noted personality disorder scholar, Otto Kernberg, M.D., (Psychiatric Clinics, 1989, 12, 3:563) distinguishes those whose misanthropy leads them to devalue the rights and significance of others to the point of manipulation, even violence.
Theoretical perspectives on evil are not easy to find. Eric Fromm described necrophilia in wholly asexual terms. The Heart of Man (Holt, Rinehart and Winston, New York 1973). Necrophilia, wrote Fromm, engendered a fascination with death and decay as given to destroy for the sake of destruction. Dr. Fromm further delineated different forms of violence, including sadism, the wish to inflict pain, and blood thirst, the actual drawing of vitality from the ability to destroy.
Scott Peck, M.D., a popular writer unapologetic in his blending of theology with psychiatry, offered examples of everyday evil far from the courts and prisons. People of the Lie (Simon and Schuster, New York 1983). Peck drew particular focus to those "utterly dedicated to preserving their self-image of perfection, they are unceasingly engaged in the effort to maintain the appearance of moral purity... they sacrifice others to preserve their self-image of perfection." Peck's scenarios elegantly illustrate the utter self-centered and sometimes subtle destructive indifference with which evil related to others, and distinguishes it from criminality per se.
So medical science has learned a lot about criminal "types." Is there actually precedent to standardizing analysis of behavior, and the mind behind them? Actually, yes.
In this controversial age of Megan's Law and its implementation, what would sentencing be like if no standard existed at all for distinguishing sexually violent predators? Research has enabled distinctions to emerge that better appraise risk factors for sex offender recidivism. This know-how bolsters the prospects for more practical sex offender classification. Point systems, which vary to a degree by state, allow the tabulation of a score that influences the convicted offender's risk classification. These ensure consistency and discourage arbitrary conclusion. Some states had the good fortune of incorporating mental health input into carefully drafted point systems. Others were sometimes hampered by the obstinate pouting of organized mental health, which later gave way to assertions that "we were never consulted."
The law knows it needs to standardize behavioral and mental words like depraved, evil, and cruel. A Psychology contribution would add much clarity and consistency to quantifying evil. What if we pout and punt? Will we prevent the inevitable from happening? Or will we bemoan insensitive and uninformed decisions of courts to send intoxicated offenders to death row having judged them atrocious? Will plaintiffs be short-changed by a lack of accountability for the evil of the civil defendant? Will depraved employees infect a future unsuspecting workplace simply because no provision exists for distinguishing heinous acts of heinous mind for dishonorable discharge?
In order to make a difference, a standardizable scale must relate to the actions, the circumstances, and the mental state of the actor, and not his underlying diagnosis. In order to be fair, it should be applicable to violent as well as white collar crime; to personal injury cases as well as workplace law, and as an instrument to the family court to assess the relative weight of creative misdeeds and counter-misdeeds.
Table 2.
Diagnosis / Characteristics
Antisocial Personality Disorder (DSM IV):
History of Conduct Disorder in youths; adult pattern of irresponsibility and rule breaking, age appropriate exploitativeness for money, sex, and other primitive needs. Poor treatment potential. Approximately 75% of prison inmates
Conduct Disorder (DSM IV):
Childhood/adolescence of truancy, lying, fighting, destruction of property, fire-setting, impulsivity and cruelty to animals
Brazenness, manipulation, intimidating self-centered, grandiose personality, plus antisocial behavior. Superficial connection to others 33% of prison inmates
Sexual arousal through coercion or infliction of pain
The desire to inflict pain irrespective of sexual satisfaction
Malignant Narcissism (Kernberg) :
Antisocial behavior, sadism, paranoia, more ideological and more likely to attach to groups. Experience others as enemies rather than merely objects to be exploited
Antisocial Personality by Proxy (Stawar):
Predator, physically or materially unable to carry out an antisocial impulse, manipulates a vulnerable and less inhibited person to do so
The Depravity Scale
With this objective, I introduce The Depravity Scale. It is a 15-item inventory which incorporates specific behaviors and intent which distinguish the actor. I arrived at these definitions through review of over one hundred higher court cases in recent years where aggravating mental states were debated; applying the not unexpected behaviors associated with the above diagnoses; and the distinctive characteristics biological research has fleshed out to date.
The Depravity Scale represents a quantifiable and less arbitrary mechanism for evaluation, with close questioning, the presence of heinous, atrocious, and cruel actions. As a means of bringing detail to the court, it is already an improvement on the impressionistic conclusions based on diagnosis alone. The Depravity Scale does not, and should not, factor in diagnosis or amenability to treatment. Nor does The Depravity Scale predict future dangerousness.
The scale does, however, allow the easier conclusion of those too impulsive, brain injured, or immature to join the ranks of the depraved, because of its consideration of the capacity of the actor to make a deliberate choice.
Thus, The Depravity Scale is notable not for whom it demonizes, but for whom it excludes from the very narrow descriptors listed. In its capacity to enumerate evidence for evil based on our biological and clinical understanding of behavior, The Depravity Scale is a useful instrument to the defense bar interested in distinguishing defendants as not necessarily representative of evil. In this regard, it is especially helpful to lawyers in capital cases. The Depravity Scale is likewise a tool available to the prosecution to focus the acts and intent of defendants as legitimately depraved in a manner that raises aggravating circumstances even prior to sentencing. It provides more sophisticated concrete data to the trier of fact to consider for sentencing.
The Depravity Scale will have more impact for whom it excludes
At this point the only counterbalance to the defense presentation of mitigating circumstances are controversial victim impact statements. The potential for balanced application offered through The Depravity Scale ultimately benefits mental health professionals by recasting the science as non-aligned.
The employment law community, through The Depravity Scale, can establish a basis for drafting dishonorable discharge legislation, to protect workplaces from malignant employees who seed in different environments but are protected by disclosure laws.
The use of The Depravity Scale in family court proceedings can upgrade parental rights evaluations to be less arbitrary.
As for the behavioral sciences, The Depravity Scale follows the current trend for standardized questioning that has enhanced the diagnosis of otherwise hidden questions. It is all too easy for well-trained professionals to assume, and to surmise the presence or absence of behavioral conditions. The Depravity Scale, in a manageable fashion, prompts the interviewer to probe the feelings and circumstances of actions and events of legal import.
The Depravity Scale has three sections: Intent analysis examines the planning of the perpetrator just as is done in criminal responsibility questions. Actions analysis scrutinizes crime scene information and pathology input. Behavior analysis focuses on the perpetrator's behavior around the time of the event, much the way mental health professionals take diagnostic histories.
A longer manuscript is now being prepared for publication that further distinguishes fact patterns that do and do not fall within the parameters set by The Depravity Scale. This will also provide further guidance to the application of The Depravity Scale to criminal, civil, and other court proceedings.
One cannot help but notice that the mental health profession knows far less about good than about evil. This raises highly relevant questions about our priorities and preoccupations. Will our newfound scientific sophistication enable us to discover how to deny depravity the chance to take hold?
A team the author is assembling will now begin the interdisciplinary effort of further studying, optimizing and validating The Depravity Scale, including the arduous task of point assignment. We certainly invite the participation and input of our colleagues in law, government, and the forensic sciences. For flirting with the poison of evil requires a shared collaboration with colleagues in order to gather strength on a road where for some, there is no return.
Different, If Not Distinct
"Santa gave Drew Golden a gun when he was six." —Time Magazine article on Jonesboro, Arkansas mass homicide, April 6, 1998.
When unconscionable tragedy strikes, the press predictably rushes to present the human side of perpetrators who bleed red and breath in and out. Biological and psychological research, however, has established many criminals as essentially different. How else to explain the fifty percent likelihood that the twin reared apart of his criminal brother; will have a history of criminality? Raine, The Psychopathology of Crime (Academic Press, San Diego 1993, p.72). Studies of those with antisocial personality also revealed lower heart rate in violent offenders, children of criminal parents, even in adolescents, and even in women (Raine, p. 167).
The centers of conscience and response to stimuli from the environment, are believed to be located in the portion of frontal lobes of the brain closet to the front of the brain. This understanding has been gained through histories of those injured by stroke of trauma, and the behavioral and mental consequences that follow. Lower brain arousal in areas responsible for decision making, primarily in the prefrontal regions of the brain. (Biol Psychiatry, 1997, 42: 495-508), has also been found in a group of murderers.
Trauma is not a prerequisite to a brain that works differently. We simply have a reservoir of available biological data of convicted criminals to conclude that all men, or women for that matter, are not created equal. If you look hard enough for humanity, you'll find enough of it in those who act in a heinous, atrocious, and especially cruel fashion. But underneath the superficial layer is often clear indication of a person whose decision-making conscience and emotional reactivity are very different, if not yet distinct. In this way, humanizing the depraved is no different from calling the cunning brilliant simply because they lie with such aplomb.
Evil Phobia
In a profession that demands an accountability for biases, coming face-to-face with evil requires us to suspend our moral judgments for sake of the integrity of the evaluation. It ain't easy. For forensic scientists, dealing with death and all its gore is as much an occupational reality as for law enforcement and emergency personnel. But evil, well, evil is different. Evil haunts, even traumatizes many of the professional who sits with it. Is it the power of evil? The utter helplessness we feeling treating it? Or is it great sadness at the destruction one person is capable of, even to the ignorance of the untrained and therefore victimized?
The horror of evil, beyond death itself, is neither glamorous or intriguing. Depravity is empty and frighteningly unfamiliar. It is empty and frighteningly unfamiliar—and for many, not the reason they went to medical school or training programs. Aldous Huxley wrote, "To be more against the devil than for God is exceedingly dangerous...the wickedness which he attributes to his enemies; it becomes in some a part of him." The Devils of London (Harper and Row, 1952, p. 260). Evil is enough to freeze the idealism of the young corrections professional, to infect the sociopathic caregiver with amorality, and to drive the consultant to despair. Is it any wonder why the inhumanity of evil repels the profession so responsible for assessing and treating behavior of humans?
Indeed the hell of imagery I have vividly experienced while researching and living this topic are of far greater intensity than from any patient I have yet encountered. Yes, it is easier to detach oneself instinctively from even the intimate communication of psychiatric treatment than the editorial deadline.
