Consecutive vs Concurrent Sentences – What’s The Difference?

Posted on July 27, 2022

A consecutive sentencing plan is where a court imposes two or more terms of custody time and you serve one term immediately following another.

By contrast, a concurrent sentencing plan is where you serve all the sentences at the same time, with the prisoner being released after the longest term ends.

A judge decides which form of sentencing to impose at a sentencing hearing. This is a criminal proceeding where the judge decides how to punish a defendant’s criminal conduct. The hearing is held in both

• misdemeanor and
• felony cases.

The sentencing hearing takes place after the defendant

• has pled guilty or no contest, or
• has been found guilty at a jury trial or bench trial.

All defendants have certain rights that apply during a sentencing hearing. Some of these rights include:

1. the right to be present for sentencing,
2. the right to representation (from a private attorney or a public defender), and
3. the right to present evidence.

Consecutive terms add onto each other

What are consecutive and concurrent sentences?

Consecutive and concurrent sentences are both types of sentences that a judge can impose within the criminal justice system.[1] Also, both are used when a defendant has been found guilty on multiple criminal charges and a judge imposes two or more terms of imprisonment.

The two, though, can lead to a different total amount of time that an offender has to spend in prison.

With consecutive sentences, the defendant serves one prison sentence immediately following another one.[2]

Consider, for example, a criminal case where a defendant is found guilty of both:

• first-degree burglary, which the judge says deserves a six-year sentence, and
• armed robbery, which the judge says deserves an eight-year sentence.

If the judge imposes consecutive terms, the defendant will serve six years in jail for the criminal offense of burglary. Once the defendant completes this term, he/she must immediately serve the eight years for robbery.  The total amount of prison time is 14 years.

Note that a judge may impose back-to-back life sentences, which are two or more life sentences given to the same defendant.

Consecutive sentences are sometimes referred to as “stacked sentences,” as one term is stacked on top of another.

With concurrent sentences, multiple terms of confinement are served concurrently, or at the same time, and the prisoner is released from prison after the longest term ends.[3]

Consider, again, the above example. If a judge imposed concurrent sentences rather than consecutive ones, the defendant serves time for the two crimes at the same time. Further, he/she gets released after the longest term, which is eight years. The result is that the defendant spends a total time of eight years in prison.

While a judge ultimately determines which of the two sentences to impose, a defendant might be able to get one form over another as part of a plea bargain.

When does a judge decide which form of sentencing plan to impose?

A judge determines how to sentence a defendant at a sentencing hearing.

A sentencing hearing is a court proceeding in which a judge imposes penalties upon a defendant who has been convicted of a crime.

On the issue of a consecutive or concurrent sentence, a judge will decide which one to impose after considering the following factors:

• the nature and circumstances of the offense,
• the history and characteristics of the defendant,
• the need to protect the public from the defendant,
• any applicable sentencing guidelines,
• the need to avoid sentence disparities among defendants with similar records who have been found guilty of similar conduct, and
• the need to provide restitution to any victims of the offense.[4]

Both the prosecutor and the criminal defense attorney may present evidence of mitigating and aggravating circumstances and provide arguments on which form of sentencing should apply.

It is critical for an accused to have a criminal defense lawyer at his/her sentencing hearing. A lawyer or law firm will be able to provide legal advice as to which criminal laws favor an accused’s side at sentencing.

Further, keep in mind that most communications with a lawyer are protected by the attorney-client relationship. This means that any secrets of a defendant can be kept out of the public domain.

Some laws give judges discretion over whether to impose concurrent or consecutive sentences.

What are a defendant’s rights at a sentencing hearing?

A defendant has certain rights that must be honored and protected during a sentencing hearing.  Some of the most noteworthy rights include (but are not limited to):

• the right to be present for sentencing,
• the right to be represented by an attorney,
• the right to present evidence on his/her own behalf,
• the right to propose an alternative sentence (such as proposing rehabilitation in lieu of incarceration), and
• the right to be arraigned for judgment (which includes the right to be advised of the nature of the criminal charges, the pleas entered, and the verdicts returned on the pleas).

Note that a defendant does not retain the right to confront or cross-examine witnesses during a sentencing hearing.

What is the law in California?

California’s criminal laws recognize and allow for both consecutive and concurrent sentences.

Per California Rules of Court Rule 4.425(a), a sentencing court determines which type of sentence to impose after considering certain factors. Some of these include whether:

• multiple crimes were related to one another,
• the crimes were committed at different times or in separate places,
• the defendant engaged in violent conduct,
• the accused is a serious danger to the community, and
• the accused committed a crime while on probation.[5]

The sentencing court will also consider the defendant’s criminal history.

During the sentencing hearing, a judge may order a defendant to serve confinement time in either:

• county jail, or
• state prison.

Note that Penal Code Section 2933 PC provides for “good time credit,” depending on the crime for which the defendant was convicted of.

Good time credit is awarded if a defendant behaves well while in confinement. If awarded, it works to lessen an inmate’s total amount of time in jail/prison.[6]

[1] See, for example, 18 U.S.C. 3584.

[2] Black’s Law Dictionary, Sixth Edition – “Consecutive Sentences.”

[3] Black’s Law Dictionary, Sixth Edition – “Concurrent Sentences.” See also State ex rel. Lillemoe v. Tahash, 159 N.W.2d 99 (1968).

[4] See 18 U.S.C. 3584 and 18 U.S.C. 3553 subsection 2. While a judge would apply these factors in federal court, a state sentencing court would apply similar factors as set forth in applicable state statutes.

[5] California Rules of Court Rule 4.425a.

[6] See same.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.