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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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