What Are Consecutive Sentences?
Consecutive sentences are those types of sentences where a judge mandates that a convicted criminal serve a certain amount of time for one crime after serving time from another crime (after the conclusion of a previous sentence). The total amount of time a prisoner spends in prison is generally longer than a concurrent sentence, which is a sentence given to a criminal defendant to run at the same time as another type of sentence. In other words, running a concurrent sentence means the two sentences are added together but will run at the same time.
During sentencing, criminal judges will often consider any past criminal charges or convictions the defendant may have , when determining what type of sentence in a particular case is merited. After determining the estimated amount of time to be served for the criminal charge being dealt with in a particular case (obviously, the nature of the crime in question will play a large role in how the punishment is determined), the judge will then take any past convictions into consideration. The aim of consecutive sentences is to try to punish the criminal for every crime that the criminal has committed. From this, it is easy to see how consecutive sentences and concurrent sentences are two very much different things.
Legal Consequences of Consecutive Sentences
Consecutive sentencing can have significant legal implications for defendants and the justice system as a whole. For the defendant, the imposition of consecutive sentences means a longer period of incarceration, significantly extending the time spent behind bars. From a parole eligibility standpoint, consecutive sentences generally mean that parole doors open up later in the convicted felons’ life than they otherwise would if the same sentences were served concurrently. For the justice system, consecutive sentences can help ensure that defendants who engage in multiple criminal behaviors are held accountable for each of the acts, thereby preventing double dipping and ensuring that justice is meted out to a degree commensurate with the crimes committed. However, in more "penal" jurisdictions, where sentencing practices are more driven by punishment for the sake of punishment than rehabilitation or reconciliation with victims, consecutive sentences may simply extend an offender’s sentence beyond what many in the system consider a reasonable period of incarceration.
Consecutive Sentencing and Concurrent Sentencing
When a Court imposes a sentence upon a person convicted of a crime, the Court can impose it in a concurrent or consecutive nature. In the simplest form for purposes of this blog, a concurrent sentence is when the Courts are served at the same time. A consecutive sentence is when terms are served one after another. For example, if a person is sentenced to 3 years probation for resisting arrest and 5 years probation for criminal impersonation, the sentences are served concurrently – 5 years. If the person was sentenced to serve 3 years probation on the resisting arrest, but the probation sentence for criminal impersonation is ordered to be served consecutive to the term for resisting arrest, they would have served a total of 8 years probation. Courts generally impose concurrent sentences when an accused has been convicted of separate offenses that are independent from one another. The purpose is that the Court does not want to punish the accused twice for the same behavior. On the other hand, Courts generally impose consecutive sentences when those separate offenses arose out of a common act or transaction and were parts of a common scheme or plan. There is no codified, hard and fast rule that guides courts precisely to impose concurrent or consecutive sentences. However, case law has established the following: 1. The sentence is final when it is imposed by the Court; 2. The Court must state the reasons for imposing consecutive sentences; 3. The Code requires the sentencing court to give reasons why a consecutive sentence is being imposed; and 4. The Code authorizes a court to impose both consecutive and concurrent sentences. The bottom line is that whether consecutive or concurrent sentences are imposed, there is little recourse for a defendant to appeal on the same basis. Where a consecutive sentence is ordered, the sentencing Court must articulate the criminal acts that support the imposition and why a consecutive sentence is appropriate. Most importantly, however, the ammunition is not much different from the beginning to the end. Courts have considerable discretion in imposing sentences. When convicted of multiple offenses, Courts vary in the application of consecutive sentences. Because of that variation, it is in your best interest to have an attorney represent you in a criminal matter – including sentencing. If a person is charged with a criminal act, has been convicted and is now looking at a sentencing hearing, they should certainly be represented by a qualified and competent counsel who has experience in sentencing matters.
How Judges Handle Consecutive Sentences
The use of consecutive sentences is not reserved for cases involving multiple victims or multiple criminal acts. It is possible for a defendant to be sentenced consecutively for a single count of a particular crime. For example, if the defendant was engaged in criminal activity for a duration of time substantially more lengthy than average, the judge will make note of that. Particularly violent crimes may be sentenced consecutively. A criminal conviction may also be punished by consecutive sentencing when there are specific statutory requirements. The most common example is when a defendant has been convicted under at least two separate subsections of California Penal Code section 667.6. This code section governs crimes committed with a sexual intent (such as rape, sodomy, lewd conduct, etc.). If a defendant is convicted of these crimes under 2 or more different subsections of 667.6, consecutive sentencing is mandatory. If the defendant has one prior sexually violent conviction or one prior violent conviction under 661.5, the offense or offenses shall be served consecutively to any sentence for the prior offense(s) and shall be served in addition to the total term of the primary offense for which the person is being sentenced.
The trial court has some discretion in determining whether sentences for eligible offenses should be served consecutively or concurrently. The trial court balances the punishment prescribed and the purpose to be accomplished against the defendant’s constitutional guarantee against cruel and unusual punishment (Cal. Const., art. I, § 17) to determine whether the imposition of consecutive sentences is "cruel." However, the imposition of consecutive terms on the ground of multiple victims is not subject to this inquiry. Rather, the imposition of consecutive terms based on multiple victims is automatic if the trial court has so ordered and is presumed to be rational and lawful.
Influences on Criminals and Strategies
The imposition of consecutive sentences by a judge can result in a variety of consequences for the offender, and has therefore served as an important tool for a skilled criminal defense attorney. Consecutive sentencing often requires that defense attorneys be master negotiators in order to translate seemingly adverse circumstances into reduced overall sentencing outcomes.
Case law has provided the framework by which a defense attorney may craft a successful case strategy for a client who is subject to a minimum mandatory or a consecutive sentence, giving the attorney the option to argue that the state’s guidelines have not been properly applied to his or her client.
In a recent case, State v. Giclewski, 32 So. 3d 726 (Fla. 3d DCA 2010), the Florida Third District Court of Appeals invalidated statutory sentencing guidelines on Double Jeopardy grounds. Specifically, the court vacated the defendant’s residence restraining order and struck two counts of violation of a domestic injunction, which were held to be a lesser included offense of the injunction. Sentencing for the remaining counts of violation of the domestic injunction were remanded for reconsideration per Giclewski’s best interest, as the sentences are now unlawful consecutively-run sentences under Giclewski’s holding.
As seen here , the sentencing scheme of various crimes overlaps in such a way that it can lead to an unfair or otherwise detrimental sentencing outcome for the defendant. Giclewski involved a violation of a domestic injunction [under Florida Statute § 741.30(4)(a)] in the form of four counts of trespass in a dwelling or a structure [under Florida Statute § 810.08]. Under Florida Statute § 741.283(1)(b), the maximum sentence for violation of a domestic injunction is one (1) year in the county jail and a fine of five hundred dollars. Yet, under section 810.08(2)(b), a defendant’s first conviction of trespass should result in a minimum [consecutive] sentence of 90 days in the county jail. By violating the injunction four times, Giclewski was subject to the prohibition of consecutive sentencing provisions.
The double jeopardy violation held by the court is the result of Giclewski receiving more than four (4) years of imprisonment for a set of offenses that only authorized the imposition of a single year. Equally important in Giclewski is the fact that the minimum mandatory sentencing schemes of the individual statutes at issue would otherwise have resulted in a criminal sentence that exceeded five (5) years of imprisonment if served consecutively, even though each of the underlying offenses are considered second degree misdemeanors.
Due to the sensitive nature of consecutive sentencing, a skilled criminal defense strategist must analyze not only the minimum mandatory sentencing schemes of his or her client’s charges, but also must take time to analyze how each can be arranged. In this way, the offender’s best interest may be secured as much as possible.
Case Studies and Practical Examples
A couple of case studies help illustrate how consecutive sentences are used in practice. Consider the case of Smith v. United States, which was heard by the U.S. Supreme Court in 1963, where a defendant committed two separate acts of bank robbery with a period of a few hours in between each. The sentencing court imposed consecutive sentences for two different bank robberies and concurring with the Court of Appeals, the Supreme Court held that in resentencing the defendant to consecutive sentences for each of the two separate offenses, the district court may do through resentencing what it could have done at the initial sentencing. Smith provided the means by which prosecutors could break up aggregated sentences over a period of months, possibly creating a scenario in which a defendant could never be released from prison.
In United States v. Brown, the Federal District Court held that a consecutive sentence could only be utilized if the defendant had committed multiple offenses against the same person or entity. The New Jersey Appeals Court addressed the issue in State v. Thomas and held the different crimes did not have to be related for the court to impose consecutive sentences.
In Matthews v. State, the defendant was charged and convicted of five separate counts of violation of the Georgia Corrupt Organization Racketeer Influenced and Corrupt Organizations Act arising out of a single criminal enterprise. The defendant received two consecutive sentences under OCGA § 16-14-6(b) (3) [the general rule for sentencing for multiple violations of the RICO Act] for a single criminal enterprise as follows: ten years on Counts One, Two and Three, to run consecutively — but to be served concurrently with Counts Four and Five — and five years on Counts Four and Five, to run consecutively. The Court of Appeals found the issue was whether ‘all consecutive sentences imposed for multiple violations of the Georgia RICO Act should be served concurrently.’ The court held "Although the issue is one of first impression, we have reviewed the statutory provisions together with the case law and conclude that all sentences imposed for multiple violations within a single criminal enterprise should be served concurrently not only because that is the legislative intent but also because that is consistent with the general rule in other states."
Future Developments of Consecutive Sentences
The landscape for consecutive sentences is in a state of flux. For example, a recent Wyoming Supreme Court decision, Lujan v. State, (7/19/10 WY) in which the Court may have blazed a new trail on the issue of consecutive sentences. Now in addition to requiring defendant to serve all his sentences including parole, the Court raised the mens rea requirement for consecutive sentences. "Similar to double jeopardy principles, the requirement for consecutive sentences is a clear and convincing standard, and we therefore hold that the higher standard is required to impose consecutive sentences." The Court then stated that absent such evidence, Lujan’s sentences have to run concurrently. One can only hope the Court missed the fact that their decision will require judges to make even more precision in pronouncing sentences.
Another problem with this case is then the court went on to address and reject the Eighth Amendment claim of cruel and unusual punishment. The court stated, "[A] concatenation of circumstances possibly drawn together by mere happenstance does not constitute the kind of rare circumstance warranting application of the Eighth Amendment’s protection against excessive sentences" citing Travis v. State, 800 P.2d 431, 439 (Wyo. 1990). Reality is more grim than that. It seems that the Eighth Amendment protection against excessive sentences has become virtually worthless. Except in the narrowest of cases, the Supreme Court continues to defer to the legislature. This past term in Graham v. Florida, 130 S.Ct. 2011; 176 L.E.d.2d 825 (2010). The Court stated, "For Graham, the question of what is an excessive sentence presents no serious difficulty: According to the Court , any sentence that falls within the statutory limits is presumptively constitutional. This Court has never held that a noncapital sentence could be unconstitutional as cruel and unusual under the Eighth Amendment…Graham was sentenced to life without parole for a nonhomicide offense. His sentence is not grossly disproportionate-and no Supreme Court precedent prohibits a sentence of life without parole." The Court overruled the lower court that had found a life sentence for a non-homicide offense cruel and unusual punishment. This is part of a growing trend in which the U. S. Supreme Court continually ignores the reality of Eighth Amendment protections. As a consequence, the states have more latitude to use consecutive sentences to achieve longer terms in prison.
It is my prediction that the use of consecutive sentencing will continue to grow. Many judges are reluctant to hand out long sentences with the possibility of parole provision. They are worried about the good time statutes some states have. Many judges will give out a sentence of 5 years with a parole possibility date after 2 years. When you apply good time statutes, the defendant ultimately may only have to do 6 months on a five year sentence. Thus, the trend becomes more and more towards consecutive sentences. With consecutive sentences the prisoner has to do the full sentence on the first before any other sentences are served. The reality is if the judge is able to sentence a criminal defendant to two consecutive sentences instead of one with the possibility of parole, the judge will invariably take the later route. The risk of parole is too high.
The bottom line is if the legislature gives a judge the ability to use a consecutive sentence, the judge will likely do so. The way the long sentences are applied, in conjunction with strict parole guidelines, encourages the use of consecutive sentences instead of a single term. Judges have less to fear from the Eighth Amendment.