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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  4. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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