Tuesday, July 12, 2011

How Much Wood Could a Woodchuck Chuck?

I mean, what's a poor judge to do?
He's got two defendants to sentence for murder. 
  • One strung his victim up by his toes in a dungeon, denied him food, and starved him to death.
  • The other deep fried his victim in a vat of boiling canola oil.
Gee.  You know the judge wants to make the punishment fit the crime.  How to decide what sentence to impose?
Duh.  Of course.  The harsher sentence goes to the one who did the more depraved act.
But which one is that?  Via Mark Hansen writing for the ABA Journal News Line:
Enter the depravity scale: the first-ever attempt by researchers to objectively measure what societal standards of depravity are and to categorize crimes based on specific characteristics that society regards as more or less depraved.
Dr. Michael Welner, a forensic psychiatrist who heads the project, says the research is designed to minimize arbitrariness and eliminate bias in sentencing.
“The idea is to create an instrument that will distinguish not who is depraved, but rather what aspects of a given crime are depraved and the degree of a specific crime’s depravity,” says Welner, a clinical associate professor of psychiatry at New York University School of Medicine and chair of the Forensic Panel, a forensic science consulting firm.
Follow the link in Hansen's story (no, I'm not providing it) and you can participate in Welner's study.  Be part of the cutting edge.
Except, of course, this is bullshit.
Oh, I suppose if Welner really did a statistically reliable survey he could discover what sorts of facts seemed (or did not seem) especially depraved (whatever that might mean) to what percentage of the population.  Is there any real-world correlation between that discovery and sentencing?
Not for murders in all those states where the only sentencing option is life.  Not for any of those murders where the mandated sentence is LWOP.  Not for the killings that the law doesn't call murder at all but one or another form of manslaughter.  Not for . . . . 
Well, gee.  Are there any cases where depravity of act would make a difference to a sentencing judge?  Maybe death penalty cases where -- Oh, silly me.  The jury gets to decide (except in those states that allow judges some, or total, discretion to overrule jury verdicts in death cases).  But then there are supposed to be serious other considerations in mitigation, so it doesn't really help there.
And anyway, the whole point is for the judge to exercise his sound discretion, not to follow some opinion survey, however well its results reveal what might (or might not) be a national consensus about whether it's more depraved to murder a stranger than a co-worker or whether uxorcide is a more depraved than fratricide.
So it's worthless.
Worse, it's dangerous.  Sentencing isn't a popularity contest.  And it's not supposed to be an exercise in group think.  (Yeah, Gamso.  Try telling that to the USSG as it promulgates and revises the federal sentencing guidelines or to the Ohio Sentencing Commission.)  Sentencing, even within those guidelines (when they had the force of law) and within the bounds of other sentencing systems is supposed to represent a reasoned choice by an disinterested and learned judge (yeah, right; yes, right; that's what it's supposed to be) about how the offender should be treated.  It's not supposed to be a mechanistic process (and damn those folks at USSG, anyhow).
Besides, it's the opinion poll that has Casey Anthony heading for the needle and the gurney while the jury that heard the evidence and the instructions of law said simply that the state didn't prove it.  Can't trust the opinion polls for these sorts of things.
I'm something of an academic geek. My first career choice was English Professor.  My wife is a professor.  My kids are both pursuing doctorates in fields perhaps more intellectual than practical.  I believe deeply in the value of a liberal arts education, in the trivium and the quadrivium.  I'm a fan of education and research and scholarship for their own sake, wholly devoid of any relationship to or application in the real world.
How many angels can dance on the head of a pin?  The debate, however meaningless, is a value in itself.
It's not that I'm uninterested in the practical.  I am a criminal defense lawyer.  I deal with real world acts and real world consequences every day.  But I keep a copy of The Faerie Queene (Edmund Spenser, 1590, 1596) on my shelf right near Black's Law Dictionary and the Ohio Rules of Criminal Procedure.
So it doesn't offend me that Welner is engaged in worthless research.  The part that bothers me is what happens when he's done.  Because Welner doesn't realize that what he's doing is silly and meaningless.  He thinks he's making a real contribution.
And so, there'll be the Welner Depravity Scale to put up against the Hare Psychopathy Scale.  And you'll have your grid.  And it will be death and death and death and damned the facts or the reality or the consequences.
Because it's bullshit and dangerous.
But by god the courts and the legislators will latch onto it.
And Dr. Welner will never realize that in his effort to do some good, he's violated his basic oath as a physician.
First, do no harm.


  1. I don't think his 'research' will stand the test of the Howling Moonbat Media, but then I didn't really think that the Federal government would ever balance the budget, either.

    All you have to do with this 'scientific study' is ask for the source of the interviews. Anyone who takes the results of an Internet poll seriously desperately needs their head examined and their driver's license revoked.

  2. The study screens for age, gender, educational level, experience with criminal matters, what side, how much, etc. There are a lot of controls in place and if he can control for opt-in/self-selection bias he might come out with some decent data. The value of which, if we are going to engage in real proportionality review, seems pretty apparent.

  3. You can control for all sorts of things (though it's always tricky, and a poll with self-chosen participants has built in difficulties, and then there's the whole issue of it being an internet poll since on the internet, as the cartoon rightly said, nobody knows if you're a dog).

    But if we waive the magic wand over that and make the results reliable, they're still no more than a popularity contest, and it's value seems supreficially - but only superficially - apparent.

    At least, that's my view.