It’s common for defendants in criminal cases to be charged with more than one offense. Most of the time, the charges have arisen from the same incident, but now and then, separate incidents, each with one or more charges, are tried at the same time. When the judge or jury returns with multiple findings of “Guilty,” (or when the defendant enters multiple pleas of guilty), the judge will determine the sentence(s) that the defendant will have to serve.
When faced with multiple convictions in a single case, judges consider two important legal issues before handing down a sentence: they need to avoid imposing “double punishment” for the same course of conduct; and, once they’ve satisfied that test, they need to decide whether multiple sentences will be served at the same time (concurrently), or one after the other (consecutively). The sections below explain these issues.
The double jeopardy clause in the Fifth Amendment of the U.S. Constitution is most known for its prohibition against being tried twice for the same conduct. Yet as far back as 1873, the high court wrote that this clause also prohibits being punished twice for the same conduct. (Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873).)
The key question when it comes to double punishment is whether the convictions arise from the “same conduct.” Courts and legislators variously explain the “same conduct” test as whether the convictions relate to a single act or omission on the defendant’s part. If they do, the ban on double punishment applies, but if the court can say that the defendant had more than one plan or intent, multiple punishments are permitted.
Here’s how the prohibition against double punishment plays out. First, there’s nothing amiss with making certain conduct illegal under various criminal statutes and charging multiple offenses. For example, consider an ex-felon who is arrested with a concealed weapon, and is charged with and convicted of being a felon in possession of a firearm, carrying a readily accessible concealed and unregistered firearm, and carrying an unregistered and loaded firearm in public. If it was clear that these offenses were committed in one “course of conduct,” the defendant should not be punished for all three. Statutes in every state tell judges what to do in these circumstances.
California’s law illustrates the rule. Under Penal Code Section 654, the defendant gets the harshest sentence of any of the convicted offenses (strictly speaking, the judge imposes sentences for all three, but suspends all but the longest).
The simple statement of the test belies its complexity and the difficulty of applying it to individual cases. The rule itself is also subject to reasonable criticism. For example, in one California case, a defendant kidnapped a woman, drove her into the desert, and raped her. He was convicted of kidnapping and rape, but because the court found that these crimes were part of a single, continuous criminal plan, he could be punished for only one conviction (kidnapping, which carried the longer sentence). But from a victim’s point of view, surely being kidnapped and then raped is more damaging than a kidnapping without a rape; yet the defendant who does both will be punished as if the rape had not occurred.
When the Ban on Double Punishment Does Not Apply
States typically do not apply the ban against double punishment when the same course of conduct results in violent offenses against multiple victims. For example, a burglar who enters a home and assaults more than one occupant, while having one objective in mind (taking items from the home), may be convicted and sentenced for assaults on each of the victims.
How Courts Measure a Defendant’s Course of Conduct
In every case in which multiple convictions result from one criminal incident, the sentencing court will need to decide whether the defendant had one plan, or objective; or more than one. Judges will consider these factors:
- What does the evidence show? The judge must examine the evidence to see whether it indicates more than one criminal objective. Often, factors such as time and the duration of the incident will inform the answer. For example, a criminal incident that is over in minutes may show a single-minded intent by the defendant, as when a bar patron angrily throws a punch at another guest. But if that patron then leaves the bar, waits for thirty minutes for the victim to emerge, and then assaults him again, he has arguably formed a second, independent intention to assault the victim, and could be convicted and punished for two assaults.
- What was the prosecution’s theory of the case? Prosecutors may present the case as one criminal incident, or as many. Judges will consider the questions asked of witnesses, and the prosecutor’s final argument. For instance, a prosecutor who describes the defendant as single-mindedly pursuing a criminal objective may be indicating that double punishments for any convictions that result would not be in order.
Concurrent and Consecutive Sentences
Compared to the logical and factual complexities of the double punishment rule, the concurrent vrs. consecutive sentence issue is fairly straightforward. Here, the court has satisfied itself that no double punishment problems present themselves (or if they have, the court has resolved them). Instead, the judge is free to impose a sentence on each convicted count. The question for the judge is, how should the defendant serve these one-or-more sentences? Side-by-side, or one after the other?
Judges are generally free to choose concurrent or consecutive sentences, unless the legislature has specified, in the statute that prescribes the sentence for a particular crime, that the sentence must be served concurrently or consecutively to any other. Concurrent sentences need not overlap precisely, which means that a defendant who is already serving time, who picks up another conviction, can have that sentence begin while the first is still running, and end after the first has ended.
Questions for Your Attorney
- I’ve been charged with three crimes, all for doing the same thing. Can I be convicted of all three? Punished for more than one?
- Can my plea negotiations with the prosecutor include a promise of concurrent and not consecutive time?
- I’m facing multiple counts. How will the prosecutor position his case so that it appears that I had many criminal plans or intentions? How can we defeat this approach?