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Justices say sentencing scores can be used

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State trial judges can consider sentencing scores to help tailor penalties to individual defendants, as long as those results aren’t used as final aggravating or mitigating factors in deciding a penalty length, the Indiana Supreme Court says.

In Anthony Malenchik v. State of Indiana, 79S02-0908-CR-365, the court unanimously found that judges can use what are called Level of Service Inventory-Revised, or LSI-R, in order to assess whether an offender is likely to commit more crimes and determine the level of supervision and type of treatment needed.

“Such evidence-based assessment instruments can be significant sources of valuable information for judicial consideration in deciding whether to suspend all or part of a sentence, how to design a probation program for the offender, whether to assign an offender to alternative treatment facilities or programs, and other such corollary sentencing matters,” Justice Brent Dickson wrote in the 15-page decision.

After pleading guilty to receiving stolen property and admitting to being a habitual offender, Malenchik received a six-year sentence with two years suspended. On appeal, the defendant argued the trial judge used the numerical scores as an aggravating circumstance and that his sentence was improper. He argued that it was improper for the judge to use those scores, as those models aren’t scientifically or objectively reliable and that it conflicts with his state constitutional right that the penal code be founded on reformation principles and not vindictive justice. More broadly, he contended that using such scores could lead to “an unwise fundamental change” in Indiana’s sentencing system. The Court of Appeals affirmed the sentence and score use.

Finding that state judges have judicial flexibility in considering various aspects for sentences, the justices determined that Tippecanoe Superior Judge Les Meade hadn’t used the test scores as aggravating factors against Malenchik.

Pointing out that the Court of Appeals has questioned the legitimacy of sentencing consideration of evidence-based assessment results in this case and another, the justices disagreed based on “a growing body of impressive research supporting the widespread use and efficacy of evidence-based offender assessment tools.”

But in saying the scores can be used, the court clearly noted that these tests are neither “intended nor recommended to substitute for the judicial function of determining the length of sentence appropriate for each offender.”

Justice Dickson wrote, “We defer to the sound discernment and discretion of trial judges to give the tools proper consideration and appropriate weight.”

In an accompanying four-page opinion in J.S. v. State of Indiana, 79S02-1006-CR-296, the court applied that Malenchik rationale in granting transfer and affirming another Tippecanoe Superior judge’s order, keeping intact a convicted child molester’s eight-year sentence on the same grounds.
 

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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