Stacking punishment: The imposition of consecutive sentences in Pennsylvania

• Published date: 01 August 2022
• Author: Miranda A. Galvin
• Date: 01 August 2022
• DOI: http://doi.org/10.1111/1745-9133.12587

DOI: 10.1111/1745-9133 .12587

ORIGINAL ARTICLE

Stacking punishment: The imposition

of consecutive sentences in Pennsylvania

Miranda A. Galvin1,2,3

1Pennsylvania Commission on

Sentencing, State College, Pennsylvania,

USA

2State College, Pennsylvania, The

Criminal Justice Research Center

3Department of Sociology and

Criminology, The Pennsylvania State

University, University Park,

Pennsylvania, USA

Correspondence

Miranda A. Galvin, The Pennsylvania

State University, 211Oswald Tower,

University Park, PA16801, USA.

Email: mag483@psu.edu

Abstract

Research Summary: This study introduces the deci-

sion to impose consecutive sentences as a “window of

discretion” in modern sentencing regimes that has the

potential to produce extreme and disparate punishment.

Among cases sentenced in Pennsylvania between 2015

and 2019, consecutive sentences were present in more

than 20% of all cases, including 35% of cases resulting

in a primary sentence to prison and 39% of cases result-

ing in a primary sentence to jail. The length of con-

secutive incarceration and probation often exceed pri-

mary sentence length and substantially extend justice

involvement.

Policy Implications: In the absence of guidance, con-

secutive sentences undermine policy efforts at unifor-

mity and correctional control. Further, relatively com-

mon use of (long) probation tails may contribute to

“mass probation.” Such decisions should be deserving

of the same consideration as given the imposition of pri-

mary sentences, meaning the promulgation of guidance

regarding imposition and reasonable limits for length.

KEYWORDS

guidelines, policy, punishment, sentence severity, sentencing

Efforts to characterize punitiveness and disparities in criminal justice have focused primarily on

the decisions of individual court actors, giving less attention to the laws and policies that also

shape outcomes (Lynch, 2019). Such an approach ignores the ways in which policies are them-

selves produced (Duxbury, 2021; Murakawa & Beckett, 2010), that policies are frequently discre-

tionary and employed differentially (Kurlychek & Johnson, 2019), and the role of such policies

Criminology & Public Policy. 2022;21:567–594. © 2022 American Society of Criminology. 567wileyonlinelibrary.com/journal/capp

568 GALVIN

in expanding punishment in substantial ways. To date, research has identified several policies

and practices that can indirectly—but also, dramatically—alter sentencing outcomes for defen-

dants, including mandatory minimum sentences (Lynch, 2016; Schlesinger, 2011; Ulmer et al.,

2007), departures from the guidelines (Kramer & Ulmer, 1996), pretrial detention (Dobbie et al.,

2018;Heatonetal.,2017; Kutateladze et al., 2014; Martinez et al., 2020; Metcalfe & Chiricos,

2018; Schlesinger, 2007; Stevenson, 2018), and pleading guilty versus going to trial (Yan & Bush-

way, 2018). Yet, little attention has been given to a practice that is both highly discretionary and

has a direct impact on punishment—the imposition of stacked (consecutive) sentences. In many

jurisdictions—even those with sentencing guidelines—the decision as to whether multiple sen-

tences should be served consecutively versus concurrently is entirely unstructured (Frase, 2015).

As a result, the discretionary decision to impose multiple, consecutive, sentences become an

important “legal” mechanism through which punishment can be (substantially) enhanced with

little oversight.

Stacked sentencing is, simply,the imposition of multiple punishments in a single case that are

required to be served consecutively.Administratively, then, consecutive sentencing results in the

imposition of two distinct sentences, both of which much be satisfied before the individual is

free of the criminal justice system. While the issue of consecutive sentencing is largely thought

to affect only cases with multiple offenses of conviction, that is not always (or even most often)

accurate. Broadly,stacked sentencing takes one of two possible forms (and only rarely,both). First,

sentences may include multiple terms of similar punishments to be served consecutively—for

example, two terms of incarceration or two terms of probation. That is to say, the sentences are

“appended” with the intent of increasing total punishment. Appended sentences—as referenced

in this study—are most often employed when the defendant is sentenced for multiple offenses

or when the primary sentence is to an intermediate sanction (such as a treatment program or

electronic monitoring). The second form of consecutive sentencing consists of a consecutive term

of probation following successful completion of a primary sanction, that is, a “probation tail”

(see Silbert, 2012; Wexler & Jones, 2017).

While the combination of probation after incarceration has also sometimes been referred to as

“split sentencing” (Bureau of Justice Statistics, 1985; Menefee et al., 2021; Talarico& Myers, 1987),

that term is avoided here for several reasons. First, “split sentencing” has most often specifically

referred to an abbreviated jail term in exchange for a term of probation (Talarico & Myers, 1987,

p. 613), though it will be demonstrated that probation may be imposed consecutive to any pri-

mary sanction (not only jail, and including prison1) and does not necessarily result in a shorter

incarceration term relative to those not receiving probation (Bureau of Justice Statistics, 1985).2

Relatedly, consecutive probation in state courts most closely parallels the imposition of Federal

Supervised Release after incarceration (Scott-Hayward, 2013), rather than the “split sentencing”

program (Semisch, 2015).3Finally,purely functionally, the imposition of a consecutive probation

term is in fact the imposition of a second sentence, even for a single offense. Consequently, these

sentences remain in effect even if the individual’s primary sentences are extended for a violation

beyond the original aggregate length, exposing them to additional justice supervision.

Stacked punishments have rarely been studied but may dramatically increase punishment

through extended incarceration or surveillance in the community. In Pennsylvania, the imposi-

tion of a consecutive sentence also has consequences beyond punishment for the current offense;

lesser offenses for which a consecutive sentence of supervision or confinement is imposed are

included in the calculation of a defendant’s prior record score for future convictions, though not

if sentenced concurrently.4For example, if an individual was previously convicted of assault and

also of possession of a controlled substance in the same proceeding, the less serious possession