The American Bar Association filed an amicus brief with the U.S. Supreme Court on Jan. 27 in support of the position that a defendant should be sentenced concurrently — rather than consecutively — under a specific federal criminal statute that deals with use or possession of a firearm related to a crime of violence or drug trafficking.
Federal circuits are split on whether the law bars concurrent sentencing under a particular subsection of the federal criminal code. The U.S. Court of Appeals for the 10th Circuit has allowed concurrent sentences under that subsection, while a ruling of the 2nd Circuit requires that sentences be served consecutively, which typically are longer.
The brief cites the ABA’s record since 1964 of developing ABA Criminal Justice Standards. It also quotes then-ABA President Lewis Powell, later a member of the U.S. Supreme Court, who said the standards “have reflected a consensus of the views of representatives of all segments of the criminal justice system,” and are not only viewed as “pre-eminent” but also “balanced and practical.” More than 120 U.S. Supreme Court decisions cite or quote from the standards and accompanying commentary.
The ABA brief contends that requiring consecutive sentences for multiple offenses under the statute shifts sentencing discretion from judges to prosecutors. The brief also suggests, for example, that prosecutors often have discretion in the range of charges brought against defendants, and that a charge that carries a consecutive rather than a concurrent sentence might be used as leverage in trying to seek a plea agreement with the accused.
“Requiring sentences for multiple offenses to be imposed consecutively, as the (federal) government urges here, would go against the policy of allowing judges rather than prosecutors to exercise sentencing discretion in individual cases,” the ABA brief said. “Even more troubling, it would endorse a form of mandatory minimum sentence by requiring sentences for multiple separate offenses to be served sequentially rather than at the same time; such back-to-back sentences constitute a form of mandatory minimum sentencing, which the ABA Standards disfavor.”