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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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