Michael Welner, M.D. Chairman The Forensic Panel [biographical notes]

Welner: 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.

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