Legal Question: Consecutive versus Concurrent Sentencing

These two great questions are related to one another and tie into the first week’s letter, so let’s tackle them both at once.

Nikki L. asks: 

“Hi Heather! What’s the difference between concurrent and consecutive sentences? Thank you! PS- I also agree that BSB is the greatest band of all time.”

That is correct, Nikki, BSB is the greatest of all time. Thank you. 

In the first week’s newsletter, we talked about back-to-back life sentencing. That’s another way of saying “consecutive life sentences.” When a defendant is sentenced to multiple crimes, the sentencing can be either concurrent or consecutive.

Let's say for instance you get sentenced to 10 years in federal prison for smuggling a bearded vulture into the U.S. on your trip back from Switzerland. Suppose your bird supplier also sold you 99 grams old fashioned heroin to take along with you back to the States, and the judge gives you 10 years for that, too. If all goes well and there are no mitigating circumstances (discussed below) then the sentences will be served concurrently, and you would be released in 10 years. If not, and you are required to serve them consecutively, you wouldn't see the light of day for 20 years. Consecutive sentences are sometimes called “stacked” because the years stack on each other.

On a related note, Rachel D. asks:

“Why are some prison sentences concurrent and some consecutive? What’s the point of concurrent sentences, especially for something really terrible like first degree murder? I guess if it’s like 100 years concurrent then it’s more about sending a message, but what if it’s only like 20 years?”

The short answer is: concurrent is the default. 

The federal law that governs multiple sentences of imprisonment says, “Multiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.” So really, it is up to either the court (aka the judge) or the underlying law that was broken to determine how the sentences are served. 

In considering whether to order a consecutive sentence, the court looks at factors laid out in another federal law. Some of those factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence to reflect the seriousness of the offense and to provide just punishment for the offense; and (3) to protect the public from further crimes of the defendant, among others.

This is where it can get sticky, as a judge can consider “history and characteristics” of a defendant’s past actions, including crimes that a defendant has been accused of but not convicted of. In the Thanksgiving Day Murders episode of Sinisterhood, we discussed how someone who was acquitted of murder at the state level could have that same murder used against him in federal sentencing for a different but related crime. It’s a practice called “acquitted conduct sentencing” and something that we should demand that our lawmakers ban.

So, by default, sentences for federal crimes are concurrent unless the violated law mandates that they are to be served consecutively or the judge decides to make the sentences consecutive. There are also federal “add-on” statutes that can enhance the sentence for a crime if a prosecutor chooses to charge a defendant with them.

When those additional charges are added, they include language that requires the sentences to be served consecutively and even multiplies the number of years to be served. For further reading on how some federal add-on statutes that require consecutive sentencing lead to low-level offenders being sentenced to longer jail terms than airplane hijackers, check out this article from the ACLU.

In Texas, the law is similar. If a defendant is convicted and sentenced for multiple crimes, the sentences automatically run at the same time (concurrently), unless the judge or jury decides otherwise. In Texas, a defendant can choose to have a jury determine punishment rather than a judge. 

As a general rule, in both federal and Texas cases, the sentences will run concurrently - at the same time - by default unless a statute, judge, or jury for a Texas case, says otherwise.

Regarding the second part of your question, sometimes back-to-back sentences are used to send a message, and other times they are meant to “protect the public” as the federal guidelines suggest. By stacking the sentences, the government can keep defendants incarcerated for as long as possible, even if it is for low-level crimes. 

Here is a link to the ACLU’s page on Sentencing Reform if you want to dive deeper into some of the problematic laws on the books as well as their inequitable application in both state and federal courtrooms. We’ve got a long way to go on criminal justice reform, especially in the area of sentencing. Knowing what the law is today so we know how to demand change is a good first step.

Thanks for asking those great question, Nikki and Rachel!

Got a question? Submit it here. They can be legal what-if questions or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don’t send those. Love you, but I don’t do that.

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This piece first appeared in Sunday Morning Hot Tea. Subscribe so you don’t miss another piece.