What is the Difference Between Concurrent and Consecutive Sentencing?

Are you facing charges for multiple crimes? You may be wondering what your sentence will look like. If you were charged for assault and battery, DUI, and drug possession, for instance, would you have to serve time for each separate offense, or would the penalties be combined?

It depends. Let’s look at some key definitions to illustrate this.

• Concurrent sentences: A concurrent sentence means a defendant serves all their sentences at the same time, or “concurrently.” The offender will be released after the longest sentencing term ends.
• Consecutive sentences: If a defendant serves their sentence consecutively, they must serve time for each separate offense. Put otherwise, a defendant must finish the first sentence before serving a sentence for the other crime.

Judges have the authority to decide a defendant’s sentence, however, federal law requires that the default rule is for concurrent sentences, unless the state statute calls for consecutive sentences or the judge thinks a consecutive sentence is the best course of action. For example, if a person is convicted of attempted murder and murder, then the judge will most likely give a concurrent sentence because convictions for attempting to commit a crime and committing the crime usually call for a concurrent sentence.

However, a judge may impose a consecutive sentence if a defendant is convicted of multiple different crimes. Referring to the example above, if the defendant were convicted of DUI (referred to as “OWI” in Wisconsin) and drug possession but not assault and battery, a judge may impose a consecutive sentence. You may serve, say, one year in county jail for OWI and 3.5 years in prison for the drug possession offense. Together, you would serve 4.5 years in prison for both crimes. This is why consecutive sentences are often called “stacked sentences.”

On the other hand, if a defendant is convicted and sentenced to two 5-year sentences and two 8-year sentences, they would serve 8 years in prison under concurrent sentencing. If they were under consecutive sentencing, however, the defendant would serve 26 years in prison.

For these reasons, concurrent sentencing tends to be the more favorable option for defendants.

How Does a Judge Decide Whether a Sentence Is Concurrent or Consecutive?

Wisconsin is one of those states where a judge has discretion in giving a concurrent or consecutive sentence. Some states have guidelines on when to issue consecutive sentences. For instance, Illinois requires a consecutive sentence to be given under the following circumstances:

• One of the convicted offenses was first-degree murder or a Class X or Class 1 felony, and the defendant inflicted severe bodily injury.
• The defendant was convicted of criminal sexual assault, aggravated criminal sexual assault, or predatory criminal sexual assault of a child.
• The defendant was convicted of armed violence based upon the predicate offense of crimes such as:
  • Solicitation of murder
  • Solicitation of murder for hire
  • Heinous battery
  • Aggravated battery of a senior citizen
  • Cannabis trafficking
  • A violation of the Illinois Controlled Substances Act
• The defendant was convicted of concealment of homicidal death or dismembering a human body.

As you can see, states like Illinois impose the worst-case scenario — consecutive sentences — for defendants who commit the most violent offenses. Judges know very well that consecutive sentences are harsh, which is why they tend to reserve this type of sentence for the most dangerous offenders. The logic is that these types of offenders deserve a longer sentence and should be away from the public for as long as possible.

Since Wisconsin judges are not subject to strict determinate sentencing guidelines as Illinois judges are, for example, then they have the freedom to decide whether a defendant gets a concurrent or consecutive sentence. What factors will these judges consider when imposing a prison sentence? It is possible that a Wisconsin judge may take into account the presence of aggravating or mitigating factors.

What are Aggravating Factors?

Aggravating factors may increase a defendant’s chance of getting a consecutive sentence because they increase the severity and culpability of a crime. According to the United Nations Office on Drug and Crime, aggravating factors can include:

• Previous conviction(s), particularly for serious offenses.
• Evidence of prior planning.
• The offense was committed in front of a child.
• There is a high chance of recidivism.
• More serious harm was intended than what resulted.
• The offense was committed as part of an organized criminal group.
• The offense was motivated by financial or material gain.
• Attempts to frustrate or impede the administration of justice.
• The offender committed a crime while subject to pre-trial or sentence conditions.
• Vulnerable victim(s) were targeted.
• Weapons were used to frighten or injure victim(s) or persons.
• Deliberate, repeated, or gratuitous violence or other forms of degradation were used.
• Offenders abused a position of power, authority, or trust.
• There were multiple victims or multiple incidents.

What are Mitigating Factors? 

In contrast, mitigating factors decrease the severity and culpability of a crime. If a judge finds mitigating factors present in your case, your chances of getting a concurrent sentence may increase. That being said, mitigating factors can include:

• The offender lacks a criminal record.
• The offender:
  • Is of previous good character.
  • Has a mental and/or physical disability
  • Has shown remorse or good conduct following arrest.
  • Committed the offense under duress.
  • Suffered past circumstances that resulted in criminal activity.
  • Is remorseful.
  • Is very young/old.
  • Had a minor role in the offense.

With these factors in mind, you can see that the type of sentence you get for multiple charges can make a world’s difference. If a judge gives you a concurrent sentence for multiple criminal charges, you will spend less time behind bars. In contrast, a consecutive sentence is considered the harshest type of sentencing, requiring you to spend longer time in prison.

As such, our attorney will work tirelessly to help you achieve a favorable sentence, preferably, a concurrent sentence. We know that the difference between the two types of sentencing is the difference between a handful of years and nearly a lifetime in jail. For these reasons and more, you can count on us to aggressively protect your freedom and skillfully negotiate for the outcome you deserve.

Are you in need of legal representation? Call the Law Offices of Christopher J. Cherella at (414) 882-8382 or contact us online to schedule your free consultation!