Response to Simon: Legal relevance demands that evil be defined and standardized.

Beyond public fascination, there are practical realities of today’s courts that concern evil. In 39 American states, and in federal jurisdictions, statutes allow for judges and juries to enhance penalties for convicted offenders if they decide the crime committed was “heinous,” “atrocious,” “depraved,” “wanton,” or otherwise exceptional. Recent court decisions in cases of murder, kidnapping, assault, aggravated battery, rape, arson, and attempted murder,—even parole eligibility—reflect a judge or jury’s sentencing determination that a crime exemplified the above synonyms of evil. But on what basis are jurors to arrive at the determination of whether or not a crime is “vile”? There is currently no standardized definition; jurors are left to decide on instinct. Sentencing from the gut runs counter to the landmark ruling of the U.S. Supreme Court in Furman v. Georgia. In 1972, the Court in Furman opined that the death penalty could be reserved only for a narrowed class of defendants, and that narrowed class could not be arbitrarily defined. In response to the Furman decision, states created laws distinguishing potential “aggravating factors” for capital-eligible cases. In 29 states, a jury may choose to pass a death sentence if it determines that a crime was “heinous, atrocious, or cruel,” “depraved,” “vile,” “horribly inhuman,” or “evil,” for example. Use of these terms as aggravators has withstood constitutional challenge. In Gregg v. Georgia, the Supreme Court upheld the Georgia aggravator of “heinous,” “atrocious,” and “cruel” as constitutional, but allowed for the problem of jury burden in deciding this issue. Justice Stewart noted: “[T]he problem of jury inexperience in sentencing is alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the state, representing organized society, deems particularly relevant to the sentencing decision” (Ref. 17, p 192). Following Gregg, the Court, in Walton v. Arizona, clarified that aggravating factors needed to be identified through objective circumstances. Reviewing more recent cases, I examined over 100 published decisions from appellate courts, and came to appreciate that notwithstanding the U.S. Supreme Court’s decision in Furman v. Georgia, arbitrariness in distinguishing “depraved” remains. In Florida, for example, virtually anyone who commits a fatal knifing would be eligible for capital sentencing under the aggravator of “heinous,” even if the victim were “conscious for merely seconds” after the attack. Yet in Arizona, a knife attack on a bedridden, helpless, elderly victim crippled by multiple sclerosis is not sufficient to prove “depravity.” Without standardized direction, jury decisions on whether a crime is depraved are all too often contaminated by details about the “who” of a crime (i.e., a person’s checkered background or, alternatively, virtuous qualities that render a jury unable to fathom how such a privileged person could so dramatically offend), as opposed to focusing on “what” the defendant actually did. In a system sensitive, at sentencing, to prejudice influenced by race, orientation, and socioeconomic factors, mingling the “what” of a crime with other factors that had nothing to do with the perpetrator’s intent, actions, and attitudes undercuts Dr. Welner is Chairman, The Forensic Panel, New York, NY; Clinical Associate Professor of Psychiatry, New York University School of Medicine, New York, NY; and Adjunct Professor of Law, Duquesne University School of Law, Pittsburgh, PA. Address correspondence to Michael Welner, MD, 224 West 30th Street, New York, NY 10001. E-mail: [email protected]