A risk assessment is mandated to be conducted on the defendant as part of the presentence investigation. Kansas currently uses the Level of Service Inventory-Revised (LSI-R) as its primary risk assessment tool. The purpose of this report is to evaluate the risk the defendant might recidivate (commit further crime) and the level of care the defendant will require to be rehabilitated. The court relies upon the LSI-R when deciding what the sentence should be. This includes whether the defendant is place in prison, placed on probation, or under community corrections supervision.

What is the LSI-R?

This is a risk assessment tool which is used in lots of states to help determine the length of a sentence, disposition, and treatment. The LSI-R was developed by Multi-Health Systems, Inc. and has been found to be very useful and therefore is used in the majority of sentencing determinations. In Kansas, a LSI-R is required for every felony conviction and if the court orders it, in some misdemeanor convictions.

The focus of the test is ten interest areas, called “domains.” Each area is ranked in importance related to recidivism. Below are the domains in order from least importance to greatest importance.

  • Financial
  • Leisure/Recreation
  • Accommodation
  • Attitudes/Orientation
  • Family/Marital
  • Emotional/Personal
  • Companions
  • Alcohol/Drug Problems
  • Education/Employment
  • Criminal History

This test focuses on how each domain interacts with another. Imagine a defendant with an alcohol problem, only has friends which drink, has minimal family support, and has substantial finances would probably be considered a high risk for recidivism relating to an alcohol offense.

The test results are converted into domain scores and then totaled. The scores are then studying by an individual who has specialized education in psychology. This test is manufactured to allow the administrator of the test to not only use the scores but also give recommendations beyond what the score suggests. Together, the scores and recommendations predict an individual’s risk of recidivism along with the preferable method to rehabilitate and correct their behavior.

Court’s Use of the LSI-R

The court will receive the LSI-R as part of the presentence report. The court will then utilize the Kansas sentencing grid. By using the crime’s severity level and a defendant’s criminal history, the presumptive sentence will be determined. The court then decides if any factors can lead to altering the defendant’s presumptive sentence, either mitigating (in defendant’s favor) or aggravating (against defendant’s favor). This is where the LSI-R is extremely helpful, as it can offer insight into why the defendant could commit another crime as well as the bet way to assist the defendant in returning to normal, everyday life after the completion of their sentence. Section 21-6824 mandates that defendants who are score as “moderate risk, high risk, or very high risk” on the LSI-R to be placed in a community correctional services program.

Refusal to Take LSI-R

The LSI-R is new and law pertaining to it is continually developing. Some lawyers have argued it violates a defendant’s Fifth and Fourteenth Amendment rights and is thus unconstitutional. However, Kansas courts are likely to come to the same conclusions they have previously found regarding sentencing examinations. The court determined in State v. Schaeffer that a mental evaluation could be used during sentencing as it was considered for punishment rather than determining guilty. This seems to be a fine line but has thus far held up to constitutional challenges. Now what if a defendant refuses to participate with the LSI-R? A defendant did just that in State v. Lawson. The Kansas Court of Appeals held that the sentencing court was allowed to err on the side of caution by sentencing the defendant to community corrections rather than probation. Thus, a refusal to participate ended up having “negative” consequences on a defendant’s sentencing recommendations. The court did note that if the defendant had based their refusal on their Fifth Amendment rights, they would have completed a more comprehensive analysis on the use of the absence of the LSI-R results.