The Depravity Standard for Violent Crimes

• Published date: 01 August 2023
• DOI: http://doi.org/10.1177/0306624X211058959
• Author: Michael Welner,Kate Y. O’Malley,James Gonidakis,Samantha Blair
• Date: 01 August 2023
• Subject Matter: Articles

https://doi.org/10.1177/0306624X211058959

International Journal of

Offender Therapy and

Comparative Criminology

2023, Vol. 67(10-11) 1037 –1060

© The Author(s) 2021

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DOI: 10.1177/0306624X211058959

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Article

The Depravity Standard

for Violent Crimes

Michael Welner1, Kate Y. O’Malley1,

James Gonidakis1, and Samantha Blair1

Abstract

In violent crime cases, aggravating factors in United States criminal codes, such

as “heinous,” “atrocious,” or “depraved,” are used to distinguish elements of the

crime warranting more severe sentencing. These aggravating terms are vaguely

defined and applied arbitrarily in violent cases. This paper details the development

of a 25 item Depravity Standard to operationalize an evidence-based approach to

distinguishing the worst of violent crimes. The items were applied to 393 detailed

case files drawn from several American jurisdictions to develop and refine the item

definitions, determine interrater reliability, and mine for the frequency of each item’s

occurrence. This information was combined with 1,590 participant responses ranking

the relative depravity of each item to develop a straightforward scoring system for

measuring depravity in violent cases. The Depravity Standard guide can seamlessly be

applied to identify the worst violent crimes, and provide support for those cases that

may deserve leniency or early-release.

Keywords

depravity standard, sentencing, parole, HAC statutes, violent crime

Introduction

Violence as a behavioral expression has many diverse manifestations and degrees

of severity. For those whose violence leads to criminal prosecution, aggravating

factors of the offense heighten the charges one faces and can lead to significantly

more severe sentencing if convicted. What “aggravates” a crime, makes one rob-

bery worse than another, one assault worse than another, one charge of menacing

worse than another, also engages the depravity, or the severity, of a crime (Welner,

1The Forensic Panel, New York City, NY, USA

Corresponding Author:

Michael Welner, The Forensic Panel, 515 N. Flagler Dr., West Palm Beach, FL 33401, USA.

Email: drwelner@forensicpanel.com

1058959IJOXXX10.1177/0306624X211058959International Journal of Offender Therapy and Comparative CriminologyWelner et al.

research-article2021

1038 International Journal of Offender Therapy and Comparative Criminology 67(10-11)

O’Malley, Gonidakis, & Tellalian, 2018). Any experienced law enforcement or

justice professional readily appreciates that some violent crimes are more depraved

than others.

How to classify violence, and by extension violent crime, is a long-standing interest

of the scientific community. Some researchers have found it useful to determine vio-

lence as either predatory or reactionary/affective (Crick & Dodge, 1996; Meloy, 2006;

Weinshenker & Siegel, 2002). Affective violence is preceded by high levels of arousal,

is accompanied by intense feelings, and is characterized by impulsivity and hot-blood-

edness to a real or perceived threat or fear (Weinshenker & Siegel, 2002). Predatory

violence is characterized by the absence of threat and is planned in the absence of

emotion as a goal-directed attack (Weinshenker & Siegel, 2002). Some violence may

be a mixture of predatory and impulsive qualities.

Diagnostic distinctions can also inform investigative directions of the motives of

violence. Whereas antisocial violence is instrumental in its intent, as well as the indif-

ference of the actor, narcissistic features contribute to the grandiosity of the motiva-

tion, and paranoia feeds in to prejudice motives. Violence is also distinguished for its

intended effect on the victim. Sadistic violence encompasses intended and effected

torture, as well as the relish of the victim’s suffering.

The law accounts for how some violent crimes are worse than others, and that there

are varying levels of violence even within crime types. Most states separate crimes by

level of severity such as Assault first, Assault second, or Assault third. These levels

also determine whether a crime is a misdemeanor or a felony. Critics argue that pros-

ecutors pay more attention to their cases when the victim is educated and middle- or

upper-class than when the victim is poor and uneducated, and that lenient plea bar-

gains are more available to wealthy defendants (Davis, 2008).

Statutes, additionally, contain large sentencing discretion, often without providing

clear guidance to the judge and/or jury. For example, in Illinois, depending on the fact

pattern of the crime, battery can be charged as battery, battery of an unborn child,

domestic battery, aggravated domestic battery, aggravated battery, aggravated battery

with a firearm, aggravated battery with a machine gun or a firearm equipped with any

device or attachment designed or used for silencing the report of a firearm, aggravated

battery of a child, aggravated battery of an unborn child, aggravated battery of a senior

citizen, drug induced infliction of aggravated battery to a child athlete, and heinous

battery, all carrying different recommended sentencing lengths.

Heinous battery in Illinois’ Criminal Code of 2012 (720 ILCS 5/12-4.1) is defined

as a person who, in committing a battery, knowingly causes severe and permanent dis-

ability, great bodily harm or disfigurement by means of a caustic or flammable sub-

stance, a poisonous gas, a deadly biological or chemical contaminant or agent, a

radioactive substance, or a bomb or explosive compound. This is the only guidance in

the statute, with the trier of fact directed to determine a sentence of no less than 6 years

and no more than 45 years. Who deserves 6 and who deserves 45 years? There are cur-

rently no standardized guidelines to assist the trier of fact in determining how one

battery compares to other battery offenses to inform such a decision.