Consecutive Sentences That Shock The Judicial Conscience (Part 2)

To further explain, we note, as the Carey majority recognized, that the Criminal Code provides little guidance about when a judge may impose consecutive terms. The Code declares only that “multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence.” To fill the void created by the Code’s silence, the Supreme Court directed sentencing courts to consider the following six factors:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether:

 

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

Yarbough’s sixth factor was abrogated in 1993 when the Legislature removed Yarbough‘s “outer limit” on the cumulation of consecutive sentences.

The abrogation of the sixth Yarbrough factor is a classic example of politicians benefitting from appearing “tough on crime.” The fact that prison space is finite is rarely considered. The result of the abrogation of the sixth Yarbrough factor is that a lifelong violent criminal might be released sooner to make room for vehicular homicide offenders like William Liepe who has no prior record of convictions and who never intentionally harmed anyone.