Consecutive sentences can be madness. Today’s post will—I hope—give you a championship-caliber understanding of how they are administered.
I’ve written about consecutive sentences before (here, mainly). I also made a video about them (here), under the Sentencing Whiteboard banner. Those prior posts attempted to explain how the Division of Adult Correction determines the ultimate release date for an inmate serving two or more consecutive sentences.
The key to understanding how consecutive sentences are administered is G.S. 15A-1354(b), the so-called single sentence rule. That statute directs DAC to treat a defendant sentenced to consecutive sentences as though he had been committed for a single term of imprisonment. The minimum sentence of that single term—the floor, if you will—is simply the sum of all the individual minimum sentences. No matter how much earned time or meritorious time the inmate accrues for working and completing programs in prison, he cannot be released before the aggregate minimum.
The maximum sentence is more complicated. Every felony sentence nowadays has a portion of imprisonment built into it for post-release supervision—9, 12, or 60 months depending on whether the crime is a Class F–I felony, B1–E felony, or B1–E sex crime, respectively. (The only other variety of post-release is for aggravated level one DWI, where the final four months are for PRS.) But the defendant will only serve a single term of PRS upon release. So, applying G.S. 15A-1354(b), DAC will strip the extra PRS time off all the maximum sentences and add them together to determine an aggregate maximum. That’s the ceiling from which they will subtract the defendant’s earned and meritorious time to calculate his or her release date. They will hold the one longest 9-, 12-, or 60-month PRS portion in reserve as the final bit of imprisonment—the roof, to complete my clumsy Michael Jordan reference—that could be served in the event of a PRS violation.
Because DAC aggregates the sentences in that way, I often say that the order in which the judge stacks them doesn’t much matter. It’s all just addition, and as my third grader tells me, the commutative property means you can put the numbers in any order and the answer is the same—no parentheses or brackets required.
People disagree with me about that. A commonly held rule of thumb is that the defendant should want to put the longest sentence last, because DAC will require him to serve the maximum on all but the last one. In other words, DAC will award earned time only on the defendant’s final sentence. So, the theory goes, putting the longest sentence last allows for the largest window between the ceiling and the floor, and thus the largest potential for credit accrual.
That is not correct. There is no statute or administrative policy directing DAC to withhold sentence credits from any sentence, including the non-final sentences in a consecutive string. If the defendant is working or participating in a program that gets earned time, the resulting credit will be applied to the individual sentence he is serving at that time—regardless of whether it is the first or last one in the string.
Knowing some people might dig in their heels on this one, I asked Combined Records—the office at DAC that calculates inmates’ release dates—how they do it. Regarding the general idea that DAC would award credit only to the final sentence, my friend there paused for a moment before saying, “Well—that’s ridiculous.” The defendant can accrue sentence credits throughout the consecutive terms.
For example, if the defendant is serving three 6–17 month sentences, DAC will strip off the 9 months of PRS built into each of them and treat them as three 6–8’s. That means each sentence could be reduced by as much as two months through earned or meritorious time, allowing the defendant to graduate from the first sentence to the second after as little as six months, and likewise from the second to the third. The defendant’s total credit reduction potential is 6 months, not just the two months associated with the final judgment. And that makes sense if you think about the single sentence rule converting these three individual sentences into a single 18–24 month sentence with one 9-month PRS “roof” to follow.
Just to be double sure, we entered a few hypothetical consecutive sentences into DAC’s computer system to see if the order of the individual judgments made any difference. It did not. We mainly used a mix of Class D and Class H felonies, rearranging them to put the long sentence first, and then the long sentence last. The projected release date was the same regardless of the order. And when we assigned our hypothetical inmate to a hypothetical job that accrued earned time, the release date shrank to the aggregate minimum; the reduction was not limited to difference between the ceiling and the floor of just the last sentence. Again, that was true regardless of which sentence we put last.
It is an overstatement, though, to say that the sentence order doesn’t matter at all. Sometimes it takes a little while for an inmate to get into a high–earned time job. (That’s part of the reason low-level felons generally don’t do a very good job of working their way down to their minimum sentence, as discussed here.) If the first sentence in a string is so short that the defendant reaches his ceiling on it before he has had a chance to earn much credit, DAC will nonetheless graduate him to the next sentence. At that point he will have been boxed out from any further opportunity to accrue that portion of his total potential earned time, because DAC does not allow him to “catch up” with any surplus credit earned while serving subsequent sentences. (Arguably, under G.S. 15A-1354(b), they should treat the consecutive sentences as a “single term.” But they don’t.)
If anything, DAC’s approach makes it potentially advantageous to the defendant to have his longest sentence set to run first. The longer the sentence, the more likely the defendant will have time to work it down to the minimum before DAC closes the book on it. And when the subsequent shorter sentences roll around, the inmate will already be in a good job and able to work down to the minimum on them, too.