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How does a judge determine whether sentencing is concurrent or consecutive?

Generally sentencing judges in states have broad discretion to impose either concurrent or consecutive sentencing. However, some states have laws that provide when a judge can impose concurrent or consecutive sentencing. Some of these laws provide discretion to the judges to decide this important issue. In some states, if a defendant is convicted of a violent felony and another offense, the judge must sentence the defendant consecutively. The rationale is that the defendant deserves a longer sentence and the public needs protection from this violent felony offender.

A judge can vary a guilty party's sentence, depending on circumstances, such as if the defendant has a prior record or if the party has already served time (iStock).

A judge can vary a guilty party's sentence, depending on circumstances, such as if the defendant has a prior record or if the party has already served time (iStock).

What factors does a judge consider in determining sentencing?

Judges often consider so-called aggravating or mitigating factors in determining the sentence of a criminal defense. Aggravating factors are those which increase a sentence, while mitigating factors are those which may lessen a sentence. Typical aggravating factors include: whether the defendant is a repeat offender, whether the offense was violent, whether the defendant held public office and trust, whether the defendant's victim was older, whether the defendant received compensation for the crime, whether the defendant selected his victim because of disability or race, whether the sentence is necessary to deter others from committing the same crime, and whether the defendant committed the crime as part of an organized gang.

Typical mitigating factors include that the defendant was not the leader of the offense and showed concern for the physical well-being for the victim, the defendant was much younger than the leader of the criminal conspiracy, the defendant was pro-

LegalSpeak: Illinois State Law on Consecutive Sentencing

730 ILCS 5/5-8-4 CONCURRENT AND CONSECUTIVE TERMS OF IMPRISONMENT

(d) CONSECUTIVE TERMS; MANDATORY. The court shall impose consecutive sentences in each of the following circumstances:

(1) One of the offenses for which the defendant was convicted was first degree murder or a Class X or Class 1 felony and the defendant inflicted severe bodily injury.

(2) The defendant was convicted of a violation of Section 12-13 (criminal sexual assault), 12-14 (aggravated criminal sexual assault), or 12-14.1 (predatory criminal sexual assault of a child) of the Criminal Code of 1961.

(3) The defendant was convicted of armed violence based upon the predicate offense of any of the following: solicitation of murder, solicitation of murder for hire, heinous battery, aggravated battery of a senior citizen, criminal sexual assault, a violation of subsection (g) of Section 5 of the Cannabis Control Act, cannabis trafficking, a violation of subsection (a) of Section 401 of the Illinois Controlled Substances Act, controlled substance trafficking involving a Class X felony amount of controlled substance under Section 401 of the Illinois Controlled Substances Act, a violation of the Methamphetamine

Control and Community Protection Act (720 ILCS 646/), calculated criminal drug conspiracy, or street gang criminal drug conspiracy....

(5) The defendant was convicted of a violation of Section 9-3.1 (concealment of homicidal death) or Section 12-20.5 (dismembering a human body) of the Criminal Code of 1961.

(6) If the defendant was in the custody of the Department of Corrections at the time of the commission of the offense, the sentence shall be served consecutive to the sentence under which the defendant is held by the Department of Corrections. If, however, the defendant is sentenced to punishment by death, the sentence shall be executed at such time as the court may fix without regard to the sentence under which the defendant may be held by the Department.

(7) A sentence under Section 3-6-4 for escape or attempted escape shall be served consecutive to the terms under which the offender is held by the Department of Corrections..

voked by the victim, the defendant has compensated or will compensate the victim for the harm, the defendant is likely to respond to probationary treatment, and the willingness of the defendant to cooperate with law enforcement.

 
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