A federal jury convicts a defendant of two drug trafficking charges (multiple charges are common in drug trafficking cases). The judge sentences the defendant to five years in prison for Count 1, and two years in prison for Count 2, with the sentences to be served consecutively.
What’s the total time the defendant will spend in prison? For this case, that would be seven years.
Now let’s take a look at another example. A different defendant is convicted on two counts of drug trafficking. Count 1 carries a prison term of 20 years, while Count 2 carries a sentence of 15 years. This time, though, the sentences will be served concurrently.
What’s the total time this defendant will spend in prison? If they were consecutive sentences, it would be 35 years. However, concurrent sentences are served at the same time.
Essentially, that means the longer sentence is the amount of time the person would be in prison – 20 years. Not good, but far better than 35 years.
How much discretion do judges have in determining concurrent or consecutive sentencing, and what factors make each more likely? In this post, we’re going to look at how federal sentencing works, what the determinants are for consecutive sentencing, and how you can improve your chances of receiving concurrent sentencing.
Some Important Basics about Federal Drug Sentencing
The two biggest things to know about federal sentencing involve mandatory minimums and early release.
Mandatory minimums refer to crimes that always carry a minimum amount of prison time. Drug charges at the federal level fall into this category.
What does that mean?
If you are convicted of a federal drug offense, you will be incarcerated for at least the minimum amount of time as laid out for that charge. There’s no chance of avoiding prison entirely by taking a plea deal for probation or a drug treatment program or any of the other things that are often possible at the state level.
What about early release?
Most state prison inmates do not spend all of their sentences behind bars due to parole or other criminal justice programs. No so for federal crimes. Congress ruled in 1984 that federal offenses aren’t eligible for parole.
What this means is that although some early or supervised release programs are available for good behavior while imprisoned, many federal sentences are served in full.
In other words, you should expect to serve the majority of your federal sentence behind bars, making concurrent versus consecutive sentencing all the more important in federal cases.
Reasons Someone Might Get a Concurrent Sentence Versus a Consecutive One
What factors determine whether a judge will order sentences to be conserved consecutively? In some cases, judges are granted discretion in making this determination. Other offenses, however, require that sentences be served consecutively.
So that’s the first question: whether or not the judge has any leeway based on how the applicable law is written.
If he or she does have leeway, the judge will typically consider the defendant’s past criminal history and the severity of the present offenses to decide whether they should receive concurrent or consecutive sentences.
Aren’t Consecutive Sentences a Kind of Double Jeopardy?
The Fifth Amendment of the US Constitution protects US citizens from being punished twice for the same act. This is known as double jeopardy.
So, what happens when two criminal offenses arise from the same act?
At the state level, it is often mandated that a judge may only legally impose one sentence on a defendant who is convicted of separate crimes. For example, if the defendant sets a house fire in an attempt to kill the occupants, the defendant may be convicted of both arson and attempted murder, but in many states, they would only be given a single sentence.
Typically, the judge will impose the sentence for the more severe crime.
These protections aren’t in place in federal courts – but judges still can’t punish a defendant twice for the same conduct. Because of this, a judge will very carefully consider whether the offenses resulted from the same act before handing down a sentence.
However, a judge typically will not apply the ban on double jeopardy if the same conduct in multiple crimes results in violent offenses against more than one victim.
The judge will look at several factors to determine sentencing:
- Did the defendant have a single objective or more than one objective when committing the offense(s)?
- Does the evidence suggest that the defendant had more than one objective?
- Do witness statements suggest that the defendant had more than one objective?
- Would issuing a concurrent sentence be double jeopardy?
- Does the severity of the offense need to be reflected in the sentence?
If you think this sounds complicated, you’re not wrong. All you really need to know, though, is that if you are facing multiple drug trafficking charges, concurrent is always better than consecutive. A knowledgeable federal criminal attorney will be able to tell you if you qualify for concurrent sentences and develop a strategy to help you push for the most positive outcome.
About the Author
Sami Azhari has been working as a lawyer since 2007, after receiving his Juris Doctor from the Michigan State University College of Law. He has handled numerous state and federal cases, and is known throughout the Chicago and Rolling Meadows area for providing his clients with high-quality, skilled representation. He has been recognized by SuperLawyers, the National Trial Lawyers Association, and other notable organizations, and has spoken at a number of legal conferences.