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.

Legal Question: Back-to-Back Life Sentences

This question comes from Jackie B. via my Instagram DMs.

“Hi Heather! I was watching Forensic Files, and I thought of a random question. What’s the difference between one life sentence versus two or three? If you’re already serving a life sentence, does it make a big difference if you serve more than one? I know you are super busy, but I am fascinated by this stuff and want to learn more.”

Excellent question, Jackie. First of all, the Forensic Files is a sweet show. One of my vacation go-to shows. Pop that on, order some room service, never leave the bed. Perfect vacation.

I don’t have any details on the underlying crimes in this case, but there are a few reasons why a defendant would be sentenced to multiple or “back-to-back” life sentences. In the transactional law world, we would refer to something like back-to-back life sentencing as “belt and suspenders.” You use both so if one fails, your ass doesn’t show.

Back-to-back life sentences are belt and suspenders for people who commit multiple murders or other heinous crimes like terrorism. If someone is sentenced to a single term of life in prison with the possibility of parole, the person may be eligible to be released from prison after just 25 years.

On the other hand, if they are sentenced to multiple, consecutive life sentences, that won’t happen. That way, when they are paroled for their initial life sentence after 25 years, they won’t be automatically released. Instead, they would begin serving their next life sentence. Then, after serving 25 years of that second life sentence, only then would they be eligible for parole, having served a combined total of 50 years.

Additionally, convictions and sentences are not final until they’re final. By “final,” I mean appealed to the highest possible court and affirmed at all levels. At sentencing, it is impossible to know whether a conviction will be successfully appealed or if it will be affirmed. So back-to-back life sentences prevent possible early release based on a conviction/sentence being thrown out by a higher court.

Let’s say someone is convicted of crimes A, B, and C, and they are sentenced to 3 consecutive life sentences, one for each crime. At first glance, that may seem duplicative. But imagine things played out like this:

Crime A: Defendant serves this sentence and becomes eligible for parole after 25 years.

Crime B: Defendant successfully appeals this conviction, has the conviction overturned, and has the sentence vacated.

Crime C: Defendant still has to serve a life sentence for this crime.

If not for the life sentence on Crime C, then the defendant could, in theory, be released after just 25 years. On the other hand, this is also why a defense attorney would ask for the sentences to be served concurrently, or at the same time, rather than consecutively, meaning one after the other.

Frequently in cases like this, we also see defendants sentenced for lesser offenses on top of the life sentence. For instance, you may hear someone received back-to-back life sentences, plus 20 years for a charge of being a felon in possession of a weapon. That is more of a belt, suspenders, and zip-tie kind of approach where a judge wants to be really sure that the offender serves a meaningful amount of time.

But why not just sentence them to life without parole? For some crimes and in some jurisdictions, this is not an available sentence. Remember, criminal law is jurisdiction specific. So, depending on what state a crime is committed in, and whether the crime is a violation of state or federal law, the sentencing rules and guidelines vary.

Side note: I have a lot to say about convictions, sentencing, and criminal justice reform, but those are all outside the scope of Jackie’s excellent question. If you want more, listen to literally any crime-related episode of Sinisterhood where we almost always discuss criminal justice reform. Try this one, this one, or this one. We also recently discussed the controversial topic of acquitted conduct sentencing in Episode 121, which you can listen to here.

I hope that answers the question. Thanks, Jackie!

Got a question? Submit it here. They can be legal what-if questions like the one above, 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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