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.
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.