As part of the presentence investigation, a risk assessment must be performed on the defendant. Kansas currently utilizes the Level of Service Inventory-Revised (“LSI-R”) as its risk assessment instrument. The purpose of these assessments is to determine the risk a defendant poses to society through recidivism—committing another crime—and the level of need the defendant requires to become rehabilitated. The LSI-R is relied upon in determining what sentence to impose. This includes whether a defendant is allowed to be place on probation, in prison, or under the supervision of community corrections.

What Is The LSI-R?

The LSI-R is a risk assessment test that is widely used by many states in determining sentence length, disposition, and treatment. It may be surprising to learn that the LSI-R was developed by a private company, Multi-Health Systems, Inc. States and various research groups have found the test to be successful enough to warrant its use in most sentencing determinations. Currently, Kansas requires a LSI-R to be completed for every felony conviction and by the court’s order in some misdemeanor convictions.

The focus of the instrument is on ten areas of interest, referred to as “domains.” Each category is ranked in importance to recidivism and the test focuses on these domains more heavily in general. The domains, in order from greatest importance to least, are:

  • Criminal History

  • Education/Employment

  • Alcohol/Drug Problems

  • Companions

  • Emotional/Personal

  • Family/Martial

  • Attitudes/Orientation

  • Accommodation

  • Leisure/Recreation

  • Financial

The test not only focuses on each domain individually, but also how they interact with one another. For example, a defendant with a drug problem, solely friends that use drugs, little family support, and substantial finances would be considered a high risk factor for recidivism relating to a drug offense.

The results of the test are converted into domain scores and then a total score. These scores are then analyzed by an individual possessing some manner of advanced education in psychology. This individual does not need to be a psychologist or even mental health professional, however. The test is designed to allow the person administering the test to use the scores but also make recommendations outside of what the scores suggest. The scores and the recommendations go to both a prediction of the defendant’s recidivism and the best method of rehabilitating and correcting the defendant’s behavior.

Court’s Use Of The LSI-R

Kansas courts receive the LSI-R results as part of the presentence report. The other details of that report are discussed on another page. The court begins sentencing using Kansas’ sentencing grid. The presumptive sentence is located using the crime’s severity level and the defendant’s criminal conviction history from the presentence report. The court then determines if any factors warrant mitigating—altering in the defendant’s favor—or enhancing the defendant’s presumptive sentence. The LSI-R is particularly helpful in this area, as it offers some insight into why a defendant may commit another crime and how best to help the defendant return to normal, everyday life after a conviction. For example, Section 75-5291 requires the court to place defendants that are scored as “moderate risk, high risk, or very high risk” on the LSI-R in a community correctional services program.

Refusal To Take LSI-R

The LSI-R is relatively new. As such, the law on the instrument is still developing. Some attorneys have argued that the LSI-R may be unconstitutional, as it attempts to force the defendant to self-incriminate in violation of the Fifth and Fourteenth Amendments. However, it is likely that Kansas courts would draw the same distinction they have in other contexts of sentencing examinations. In State v. Schaeffer, the court determined that a mental examination—even one that contained incriminating statements made by the defendant—could be used during sentencing because it was being considered as a factor for punishment rather than guilt. This is a fine line, but one that has seemed to hold up to Constitutional challenges thus far. One issue that has been addressed by the Kansas courts is a defendant’s refusal to participate in the LSI-R. In State v. Lawson, the defendant refused to take part in his examination. The Kansas Court of Appeals determined that the sentencing court could err on the side of caution by sentencing Lawson to community correction supervision, rather than probation. Thus, refusing to take the LSI-R was treated as having “negative” results on the assessment. The court did leave open a small window in Lawson, noting that had the defendant based his refusal on his Fifth Amendment rights, the court would have to do a more detailed analysis of the use of the absence of the LSI-R results.