Indiana Supreme court weighs use of tests in sentencing

11-17-2009 Indiana:

INDIANAPOLIS - A felon's friends and hobbies could influence how much time he spends behind bars if the Indiana Supreme Court upholds a lower-court ruling.

At issue is a type of psychological test commonly used by probation officers to assess whether an offender is likely to commit more crimes and determine the level of supervision and type of treatment needed. A Tippecanoe County judge cited Anthony Malenchik's high test score in sentencing him to six years out of a possible 7 1/2 for receiving stolen property and being a habitual offender.

Malenchik appealed, but the appeals court upheld the judge's decision. Now, the Supreme Court is considering whether such tests have a place in the sentencing process. It heard arguments last month and is expected to rule in coming months.

Supporters say sentencing should be based on scientific, objective data and the tests - often called scoring models or risk/needs assessments - measure that.

But critics say the test used in Malenchik's case - the Level of Service Inventory-Revised or LSI-R - isn't intended to be used to determine prison time. They also say some of its 54 questions - which ask about leisure activities, friends, family, marital relations and income - should have no bearing on a judge's decision.

"The fact that he has relatives in jail or lives in a high crime area should not be given any weight in determining the length of his sentence," Melenchik's attorneys argued in their brief. "He should not be more severely punished because he came from a broken home, he is poor, or he is dissatisfied with his parents."

The LSI-R also asked whether Malenchik was satisfied with his marital situation, participated in organized activities or could make better use of his time, said his attorney, Michael Troemel of Lafayette.

Troemel said in his brief that 20-year-old Malenchik had "good family support, a pregnant fiance and a good probability of employment" when he was sentenced in December.

"While you always look at the character, I think some of these things look at things beyond the control of the offender," said Steve Johnson, executive director of the Indiana Prosecuting Attorneys Council, which filed a brief in the case.

The tests also measure some things, such as the risk of re-offense, that judges already consider, Johnson said. There's a risk such factors could be "double-counted," unfairly increasing an offender's sentence, he said.

The LSI-R is the most widely used test of its kind in the United States, said Roger K. Warren, a retired California judge and former president of the National Center for State Courts. Probation officers in Indiana have used it or a similar test to evaluate offenders since 1995. The scores are often cited in pre-sentencing reports delivered to judges.

But, instructions on the test warn that it's not intended to be used in sentencing.

"It is a misuse of that particular tool to use it to make a decision as to whether someone should be in prison or not, or how long they should be in prison," Warren said.

Indiana law requires judges to issue a sentencing statement outlining the logic behind their decision. During a hearing in Malenchik's case, the judge referred to his relatively high LSI-R score which showed a high risk of recidivism. The judge also said his criminal record showed a failure to take responsibility for his own actions.

The attorney general's office, which is asking the court to uphold Malenchik's sentence, acknowledged the test wasn't designed to determine penalties, but argued that such tests could be valuable to judges "provided their proper purposes and limitations are observed."

State attorney Henry Flores Jr. didn't immediately return phone calls seeking comment.

Warren and Ron Reinstein, a retired Arizona judge and adviser to that state's courts, said tests do exist to help determine, for example, whether sex offenders should be released.

And Virginia judges have the option of using a test to determine which offenders should be diverted into alternative sentencing to ease prison overcrowding.

But critics say such tests will never be a substitute for the thoughtful reasoning of a judge who can weigh factors such as criminal background and the risk of repeat offenses alongside individual character and the weight of the crime committed.

"For purposes of sentencing, most people reject the idea ... that you can do justice 'paint by numbers,"' said Larry Landis, executive director of the Indiana Public Defenders Council, which also filed a brief in the case. "We want a human being making a judgment about another human being." ..Source.. by CHARLES WILSON