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The IBA's Criminal Justice and Appellate Sections File Amicus Brief on Sentencing Issue

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By James Bell and Casey Kannenberg, Bingham McHale
 

Bell James Bell

Sentencing hearings occur in the vast majority of Indiana’s criminal cases. For years, the tools trial judges have used to determine a reasonable sentence have included testimony, character letters, the defendant’s background and Indiana’s sentencing statutes. Recently, Indiana’s trial courts have begun utilizing “scoring models” to help determine a reasonable sentence. The practice of using such “scoring models” was recently challenged by a criminal defendant and his case reached the Supreme Court of Indiana.
 

Kannenberg Casey Kannenberg

Specifically, in Malenchik v. State of Indiana, No. 79S02-0908-CR-364 (Ind. 2010), the trial court, at sentencing, considered the results of a Level of Service Inventory-Revised (“LSI-R”) Report and the results of the defendant’s Substance Abuse Subtle Screening Inventory (“SASSI”). The defendant’s score on the LSI-R placed him in the “High Risk/Needs” category and the SASSI indicated that the defendant has a “high probability” of having a substance dependency. During the sentencing hearing, the judge referenced both the LSI-R and SASSI results, noting that “[Y]our LSIR score is high. Your SASSI score is high with a high probability of substance dependence disorder.” Id. at 3. After considering the Reports and other factors, the trial court ultimately sentenced the defendant to six years imprisonment, with two years suspended. Malenchik, No. 79S02-0908-CR-364, at 3, 4.

On appeal, the defendant challenged the trial court’s use of these scoring models. The State, on the other hand, argued that the Reports may be used in criminal sentencing “if employed consistently with [their] proper purposes and limitations.” Id. Eventually, these arguments reached the Supreme Court of Indiana.

However, prior to ruling on the issue, Chief Justice Shepard requested amicus briefs to aid the Court in reaching a conclusion. With the approval of the IBA Board of Directors, the IBA’s Criminal Justice and Appellate Sections drafted and filed an amicus curiae brief. Prior to the filing of the brief, members of these sections polled judges and criminal practitioners to determine the IBA’s position. Regardless of the position taken by the IBA, the views of all members were contained in the amicus brief and presented to the Court.

The Supreme Court of Indiana eventually arrived at a balanced result that upheld the use of “scoring models,” but limited their use. Specifically, the Court held that “legitimate offender assessment instruments do not replace but may inform a trial court’s sentencing determinations.” Malenchik, No. 79S02-0908-CR-364, at 2. The Court also concluded that “[t]hese evaluations and their scores are not intended to serve as aggravating or mitigating circumstances nor to determine the gross length of sentence, but a trial court may employ such results in formulating the manner in which a sentence is to be served.” Id. at 14.

The Criminal Justice and Appellate Sections would like to thank the judges and lawyers who shared their views and aided in the drafting of this amicus brief. In addition, both sections would like to give a special thanks to Professor Joel Schumm of the Indiana University School of Law-Indianapolis for taking his personal time to draft the amicus brief and for allowing the voices of the IBA’s members to be heard.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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