WHAT IS THE EFFECT OF A DEFENDANT’S REFUSAL TO PARTICIPATE IN THE LSI-R?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Lawson, 364 P.3d 1221 (Kan. Ct. App. 2017).
This case answers the following question:
What is the effect of a defendant’s refusal to participate in the Level of Service Inventory-Revised (“LSI-R”)?
The issue in this case is whether refusal to take the LSI-R can be treated as having negative results on the assessment. As provided in K.S.A.2014 Supp. 75–5291(a)(2)(E), a district court is not to assign a criminal defendant convicted of a felony to a community corrections program unless he or she is determined to be ‘high risk or needs, or both’ by the use of a statewide, mandatory, standardized risk assessment tool or instrument.
Lawson was placed in the community corrections program rather than on a standard probation after pleading guilty to burglary and theft for breaking into a pickup truck. After pleading guilty, Lawson went through a presentence investigation process designed to give the district court information on his background and criminal history in order to help decide an appropriate punishment. Part of the process is a risk assessment instrument, the LSI-R. Lawson refused to complete the assessment, and his refusal was included in the presentencing report given to the district court. Lawson is appealing the decision to place him in the community corrections program rather than on a standard probation.
As provided in K.S.A.2014 Supp. 75–5291(a)(2)(E), a district court is not to assign a criminal defendant convicted of a felony to a community corrections program unless he or she is determined to be ‘high risk or needs, or both’ by the use of a statewide, mandatory, standardized risk assessment tool or instrument. The instrument designed to test the risk assessment was the LSI-R. Without the information from the LSI-R, the district court intended to defer to the highest level of supervised probation, which would mean placing Lawson in community corrections.
Shortly after sentencing, Lawson violation the terms of his probation. The district court revoked his probation and ordered him to serve the 6-month sentence, which eh completed. Since Lawson completed the sentence, a decision on his appeal would have no impact on his legal status. This means that Lawson’s appeal is moot. Courts have some discretion in applying an exception to deciding a moot case. However, this is not the case in Lawson’s appeal. The court did mention that if Lawson had based his refusal to take the LSI-R on his fifth amendment rights, rather than on the advice of counsel, the court would have done an analysis of the use of refusal to take the LSI-R on determining sentences.
The Court of Appeals of Kansas dismissed the case because they found the appeal to be moot.