A Sentence Deferred: Ignoring Multijurisdictional Concurrent Sentences
By Elizabeth Weaver*
The role of imprisonment in the United States is appallingly out of balance with the idea and practice of a just society;[1] whether the ends justify the means warrants careful consideration.[2] The insufficiency of the practical constraint placed on incarceration as a crime control tactic becomes increasingly obvious as another generation feels the ripple effect of mass incarceration.[3] “The jurisprudence of punishment and theories of social policy have sought to limit public harm by appealing to long-standing principles of fairness and shared social membership.”[4] Still, we continue to tolerate a criminal justice system that routinely fails to achieve justice and embodies a dangerous enthusiasm for punishment.
This enthusiasm is no more apparent than when the court of one state orders an offender to serve a concurrent[5] sentence of incarceration, but an administrative agency in another state renders it consecutive.[6] Such cases crystallize the often-overlooked para-carceral tendencies present in modern society and highlight a willingness to ignore the “long-standing principles of fairness”[7] fundamental to the effective pursuit of justice.
This paper proposes the creation of an Interstate Compact on Sentencing as a small step toward justice. Part II explores problems that occur when states ignore a multijurisdictional concurrent sentencing order and the policies that allow states to extend a sentence beyond its court-ordered expiration. Part III proposes the implementation of an Interstate Compact on Sentencing. Creating an Interstate Compact on Sentencing would allow states to lower the overall cost of incarceration through cost-sharing measures, reduce the total number of years of imprisonment for those offenders who qualify, and promote more meaningful rehabilitation through correctional programming.
If the aim of the criminal justice system truly is justice, defendants should be able to rely on the sentencing orders they receive. Instead, lengthy sentences,[8] promotion of retributivist ideals,[9] and legal nonenforcement of sentencing orders allow states to exact punishment far beyond what is due. States can effectively lock an individual up and throw away the key. When an offender is convicted and remanded to the custody of a penal institution, he or she enters the shadowy realm of correctional authority.[10] Freedoms are now determined by a faceless figure deep within the bureaucracy of a governmental agency. The ease with which confinement lends itself to misuse is a threat to the legitimacy of the penal system, but the fair determination of punishment for law violations is “strengthened by adherence to rules that promote substantive equity.”[11]
Michael Isreal’s story is not a story of innocence; rather, it is a story of a state’s preference for punishment over justice. Mr. Isreal’s criminal culpability is real and the charges against him required appropriate punishment. The reality of that punishment, however, is troubling. At sixty-two years old, Mr. Isreal has spent more than forty-five years in prison. The Missouri Department of Corrections (“MDOC”) expects him to serve twenty-five more.
In 1974, a St. Louis City court certified a sixteen-year-old Michael Isreal for prosecution in adult court, removing him from the juvenile system and subjecting him to the harsh realities of an adult penal system.[12] The court sentenced Mr. Isreal to twenty years in prison for robbery[13] and remanded him to the Missouri State Penitentiary, once described by a team of corrections experts as “the bloodiest forty-seven acres in America.”[14] As is typical for minors incarcerated in adult prisons,[15] Mr. Isreal experienced extreme violence – he was stabbed on at least three occasions before his twentieth birthday.[16] In 1977, Mr. Isreal fought back, netting a ten-year increase in his already lengthy sentence.[17] Facing decades in prison, Mr. Isreal saw an opportunity and escaped from Missouri custody during a visit to a local hospital in 1978.[18] His freedom was fleeting, and within months he pled no contest to murder in Alameda County, California.[19]
The court sentenced Mr. Isreal to twenty-five years to life in prison.[20] In compliance with California law,[21] the court ordered Mr. Isreal’s sentence to be served concurrently with his Missouri sentence.[22] On February 21, 1980, MDOC demanded the California Department of Corrections and Rehabilitation (“CDCR”) return Mr. Isreal to the Missouri State Penitentiary.[23] However, when CDCR offered Mr. Isreal for transfer, MDOC doggedly refused to accept him.[24] CDCR tendered Mr. Isreal for transfer no less than six times between 1980 and 1997, and on each occasion, Missouri refused to accept him.[25] Despite MDOC’s refusals, Mr. Isreal continued to pursue transfer to Missouri to secure the proper execution of his multijurisdictional concurrent sentence.
In 1997, the United States Court of Appeals for the Ninth Circuit evaluated Mr. Isreal’s allegations that California had not done enough to ensure his sentence proceeded as ordered.[26] The Ninth Circuit noted that “Missouri flatly refused to accept Mr. Isreal into custody under any circumstances.”[27] In upholding the district court’s ruling, the Ninth Circuit acknowledged the liberty interest created by Mr. Isreal’s sentence.[28] Still, it explained that while California law required CDCR to tender Mr. Isreal for transfer, California could not compel another sovereign state to accept custody.[29] To neglect to offer Mr. Isreal for transfer might “present a case where the State’s action [would] inevitably affect the duration of his sentence.”[30] Ultimately the Ninth Circuit ruled that California fulfilled its obligations under the law.[31]
Mr. Isreal spent forty years in the custody of the State of California, unable to challenge Missouri’s disregard of a valid sentencing decree.[32] In effect, Missouri rendered Mr. Isreal’s California and Missouri sentences consecutive in contradiction of the California judgment.[33] In early 2019, as Mr. Isreal prepared for release, the state of Missouri prepared for extradition.[34] MDOC took Michael Isreal into custody on March 3, 2020, more than fifteen years after his Missouri sentence should have expired.[35] His records reflected 15,230 non-credit days, the forty years he spent incarcerated in California.[36]
Criminal laws exist to achieve each of the states’ penological goals. Such goals commonly include deterrence, incapacitation, restoration of crime victims, offender rehabilitation, and reintegration.[37] By their nature, concurrent sentences can achieve these correctional goals for multiple states at once while simultaneously reducing the economic burden of incarceration.[38] However, “the law governing prisoners subject to multiple sentences, particularly prisoners subject to multiple state and federal sentences, is hardly a model of clarity.”[39]
“Pragmatically, when the sentencing aims of two judges clash, the last judge to impose sentence usually controls the outcome.”[40] However, because a state government is a sovereign authority, one state’s criminal or penal laws cannot have a binding effect on the court of another.[41] In most states, the decision between ordering a concurrent sentence or a consecutive sentence rests firmly in the hands of the judiciary, regardless of whether all sentences of incarceration are owed to one sovereignty. Absent a contradictory statute, judges have the discretion to order a sentence to run concurrently with a previously adjudicated sentence owed in another jurisdiction.[42]
California is one of a handful of states that mandates concurrence when an offender has undischarged terms of imprisonment.[43] When the earlier-imposed penalty is from another jurisdiction, California must offer the inmate for transfer to give the sentencing order full effect[44] and provide credit for time served in the other state’s penal institution.[45] Similarly, in Pennsylvania, when a judge orders a sentence to run concurrently with a prior undischarged sentence owed in another state, Pennsylvania will return the offender to that other state.[46] Unfortunately, the administrative agencies responsible for carrying out the will of the legislature and the courts do not always comply.[47] When departments of corrections refuse to accept the transfer of an offender with undischarged sentences in multiple jurisdictions because a court from another state ordered those sentences to run concurrently, it removes criminal penalties from their proper place in the hands of the judiciary.
Prisoners have a legitimate expectation that any deprivation of liberty cannot exceed a court’s order,[48] but when administrative agencies are free to interpret statutory gaps in the way they see fit, it can result in unchecked violations of due process.[49] Incarceration requires the deprivation of certain rights and benefits normally afforded to individuals.[50] Still, the idea that “prisoners in state institutions are wholly without the protections of the Constitution and Due Process Clause . . . is plainly untenable.”[51] Offenders’ rights do not disappear when they enter prison; those rights are simply limited by necessary constraints that accompany punishment.[52] When offenders commit crimes in multiple jurisdictions, an ongoing issue is whether one jurisdiction has the “authority to order an offender’s sentence be served either concurrently with or consecutively to another jurisdiction’s prior sentence.”[53] A state that “disregard[s], if not deliberately, at least negligently, the rights of a prisoner who sought proper execution of his sentence,” by refusing to honor a concurrent sentence from another jurisdiction violates due process rights.[54]
One of the most vital constitutional safeguards firmly in place for incarcerated persons is that of due process, which protects “against arbitrary action of the government.”[55] Consideration of due process in the context of multijurisdictional concurrent sentences necessarily involves the “determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.”[56] Although some statutory provisions create space for multiple states to achieve their own correctional goals at once, there is no mandate requiring a non-credit state to accept a prisoner tendered for transfer.
Reeling from the intense civil unrest and political upheaval of the 1960s and 1970s, legislative bodies across the country began strengthening criminal penalties, heavily favoring incarceration as the primary means of crime control.[57] Policy decisions, rather than a recalcitrant public, led to “historically unprecedented and internationally unique” incarceration rates in the United States.[58] Although incarceration rose sharply, the number of available beds within penal institutions did not. Overcrowding, a natural consequence of increased imprisonment, led to state and federal prisons operating well above capacity.[59] The personal, social, and economic costs associated with incarceration are unsustainable, yet implementing meaningful solutions is laborious and complex. Creating an Interstate Compact on Sentencing (“Sentencing Compact”) would allow states to lower the overall cost of incarceration through cost-sharing measures, reduce the total number of years of imprisonment for those offenders who qualify, and promote more meaningful rehabilitation through correctional programming.
Interstate compacts provide states an opportunity to work cooperatively to achieve effective administration of justice. An interstate compact is a negotiated contract between two or more states requiring approval by the legislature of each state, and in some cases, congressional consent.[60] “Interstate compacts are the only method permitted by the U.S. Constitution for states to change their relationship to one another in a significant way.”[61]
The main goal of an interstate compact is more effective administration through cooperative effort and shared responsibility.[62] As with any contract, an interstate compact controls the party states’ rights and duties through mutual assent.[63] If an interstate compact has the potential to affect federal supremacy, congressional approval is required.[64] An interstate compact, once approved by Congress, becomes federal law,[65] but Congress will not permit an interstate compact between two or more states if the agreement could “affect injuriously the interests of the others.”[66] An interstate compact is both contractual and statutory, and as such the U.S. Supreme Court has ultimate authority to interpret its meaning.[67] The Court also has the power to enforce an interstate compact’s provisions, create and enforce restrictions to prevent abuse, and devise a fair resolution for disputes between the party states.[68]
In the realm of criminal law, commonly used compacts are the Interstate Agreement on Detainers,[69] the Interstate Compact for Supervision of Parolees and Probationers,[70] and the Interstate Compact on Corrections.[71] American criminal jurisprudence generally does not lend itself to the idea that a person could be convicted in one jurisdiction but “restrained of his liberty” in another.[72] However, the advent of interstate compact agreements and prisoner transfers solidified that individuals have no constitutional right to be incarcerated in any specific institution or within a particular state,[73] and opened the door for the creation of a Sentencing Compact. Currently, no existing compact establishes a way for incarcerated offenders to seek proper execution of a multijurisdictional concurrent sentence. This, therefore, creates a gap in constitutional protection for individuals in prison who have already been sentenced.
Creating a new cooperative system between states can be daunting; however, there are systems and processes already in place that could help implement an interstate compact on sentencing. Establishing a Sentencing Compact would work to achieve the principal goals of criminal justice while creating an administrative structure that protects offenders’ due process rights, upholds the penological aims of corrections, and maintains the sovereign authority of the states.[74]
By enacting the Crime Control Act,[75] Congress authorized and encouraged states to create interstate compacts to aid in crime prevention and criminal justice.[76] The Corrections Compact created a system in which states may transfer prisoners as they please.[77] States may transfer prisoners from an institution within their jurisdiction to an institution in another jurisdiction for “rehabilitative and correctional purposes.”[78] Generally, this system is utilized by states to reduce incarceration costs and, on occasion, to remove “problem” prisoners from the general population.[79] Prison systems are rendered “legally borderless,” making penal institutions part of a much larger administrative system.[80] The basic framework of the Corrections Compact is malleable enough to accommodate its adoption for use in a Sentencing Compact with one notable difference: prisoner consent.[81]
Transferring
prisoners out of state is not a new concept,[82] and the procedure for completing
transfers is already in place. State
legislatures have the power to create a Sentencing Compact, and the benefits
far outweigh any foreseeable costs.[83] State
sovereignty is precious, but harmony in justice administration does not
automatically infringe on “essential state autonomy.”[84] Until and
unless state legislatures prioritize reducing the cost of corrections and
preserving the rights of prisoners, the personal, social, and economic cost of
incarceration will continue to skyrocket.
Creating a
Sentencing Compact will produce positive change in the criminal justice system
by alleviating some of the financial strain placed on state and federal
correctional systems, but more importantly, by more effectively working toward
offender rehabilitation and reintegration.[85]
A state’s ability to maintain
control over the way it punishes is a function of an independent state,
but shifting focus from
the separateness of the states can serve national unity in certain situations.[86]
Implementation of an Interstate Compact on Sentencing will allow the proper execution of multijurisdictional concurrent sentences in a way that can benefit both states and prisoners. The most extreme example of arbitrary administrative action in this Note is that of Michael Isreal. As of the date of this Note, Mr. Isreal remains in the custody of MDOC. He is awaiting a hearing on a Petition for a Writ of Habeas Corpus to secure discharge, but as it stands, there is no provision, statutory or otherwise, to compel his release. Any evaluation of the underlying principle of due process – fairness – indicates that Mr. Isreal should receive credit on his Missouri sentence for the time he spent incarcerated in California. Beyond the basic unfairness MDOC created for Mr. Isreal, it refused a large financial benefit. Had MDOC designated CDCR as the place where Mr. Isreal would serve his Missouri sentence, it is likely that California would have borne the entire cost. At the current cost of incarceration, Mr. Isreal’s commitment in Missouri will cost the state more than one million dollars.
* B.A., Boise State University, 2018; J.D. Candidate, University of Missouri School of Law, 2022; Associate Member, Missouri Law Review, 2020-2021.
[1] See The Growth of Incarceration in the United States: Exploring Causes and Consequences 8 (Travis, J., Western, B., & Redburn, S. eds., 2014).
[2] “[P]ublic policy necessarily embodies ethical judgments about means or ends.” Id. at 8 n.1.
[3] See Alfred Blumstein, Dealing with Mass Incarceration, 104 Minn. L. Rev. 2651, 2665–67 (2020).
[4] Western, supra note 1.
[5] A concurrent sentence allows an offender to serve multiple terms of imprisonment simultaneously. Arthur W. Campbell, Law of sentencing § 9:20 (August 2020 Update).
[6] A consecutive sentence requires an offender to serve multiple terms of imprisonment one after another. Id. Departments of corrections render concurrent sentences consecutive by refusing to either accept custody of the offender or provide credit for time served in the sentencing court’s jurisdiction. Id.
[7] Western, supra note 1.
[8] Connie de la Vega, et al., Cruel and Unusual: U.S. Sentencing Practices in a Global Context 15 (2012).
[9] Id. at 8.
[10] “[O]nce a person is sentenced . . . and custody is handed over to [the department of corrections], that person falls into a black hole at the mercy of some unidentified person somewhere in the . . . penal system checking periodically that inmates are serving their sentences where and when as ordered.” Brisco-Wade v. Carnahan, 149 F.Supp.2d 891, 902 (E.D. Mo. 2001).
[11] N. Peter Rasmussen, The Concurrent Sentence Doctrine: Sound Judicial Procedure or Illegitimate Shortcut? 1981 U. Ill. L. Rev. 723 (1981).
[12] Petition for a Writ of Habeas Corpus, Isreal v. Falkenrath, No. 20CW-CV00435 (Callaway County, 2020).
[13] Mr. Isreal stole $500.00. Id.; Judgment, State v. Isreal, No. 74-1078 (City of St. Louis, 1974).
[14]“In 1954, a team of corrections experts described the riot-prone Jeff City this way: ‘Square foot for square foot, it is the bloodiest forty-seven acres in America.’” Hampton Sides, Hellhound on His Trail 4 (2011).
[15] See Neelum Arya, Jailing Juveniles, Campaign for Youth Justice (Nov. 15, 2007).
[16] Falkenrath, No. 20CW-CV00435 at 2.
[17] Mr. Isreal awoke to a fellow inmate stabbing him in the face. His attacker was killed. Mr. Isreal was convicted of Manslaughter after a jury trial. Id.; State v. Isreal, No. 29725 (Cole County, Mo., 1977).
[18] Id.
[19] Id.
[20] Isreal v. Marshall, 125 F.3d 837 (9th Cir. 1997).
[21] Id.
[22] “This term of imprisonment shall commence to run immediately and concurrent with the sentence which the defendant is obliged to serve in the State of Missouri.” State v. Isreal, No. 69190 (Super. Ct. Alameda Cnty, 1979).
[23] Order for Arrest of Escaped Prisoner, Donald Wyrick, Warden, Missouri State Penitentiary, February 21, 1980.
[24] Marshall, 125 F.3d at 837.
[25] Letters between CDCR and MDOC confirmed that California continued to reflect a hold from MDOC, but that MDOC would not approve Mr. Isreal’s transfer until he completed his California sentence. Letter from Arlene Kersten, Correctional Case Records Assistant, California Department of Corrections, to H.F. Lauf, Records Officer, Missouri Department of Corrections, filed in support of Isreal v. Falkenrath, at p. 9.
[26] Marshall, 125 F.3d at 837.
[27] According to the Ninth Circuit, violations of Mr. Isreal’s Constitutional rights or violations of Missouri law were not properly before that court. Id. at 840.
[28] Id.
[29] Id. at 839. The right to transfer rose “to the level of a federally protected liberty interest.” Id. at 837.
[30] Id. at 839 n.2 (quoting Sandin v. Conner, 515 U.S. 472, 487 (1995)).
[31] Id.
[32] Id.
[33] Id. at 840.
[34] Letter from Deborah Kincade, Extradition Officer, MDOC, to Dawn Stott, Extradition Specialist, Office of the Attorney General of California (April 22, 2019) (on file with the Missouri Department of Corrections).
[35] Petition, Falkenrath, No. 20CW-CV00435 at 11.
[36] Department of Corrections Adult Institutions Face Sheet, Michael J. Isreal, DOC No: 26420, March 30, 2020.
[37] ALI Model Penal Code, art. 1 § 1.02 Official Draft, 1962.
[38] Annual Determination of Average Cost of Incarceration, 83 FR 18863 (2018).
[39] McCarthy v. Doe, 146 F.3d 118, 120 (2d Cir. 1998).
[40] See Arthur W. Campbell, Law of Sentencing § 9:24; Kelley v. Washington, 843 S.W.2d 797 (Ark. Sup. Ct. 1992).
[41] Piercy v. Black, 801 F.2d 1075, 1078 (8th Cir. 1986); “The right to impose sanctions for violations of the state’s laws inheres in the body of its citizens speaking through their representatives.” U.S. v. Constantine, 296 U.S. 287, 292 (1935).
[42] Constantine, 296 U.S. at 292; Absent statutory control, a court must establish guiding principles, keeping in mind that justice is foundational to any due process determination. Chalifoux v. Comm’r of Correction, 377 N.E.2d 923, 926 (Mass. Sup. Jud. Ct. 1978).
[43] Absent extraordinary circumstance an individual with prior felony convictions must serve a subsequent sentence concurrently. Cal. Penal Code § 669.
[44] In re Stoliker created a vehicle by which prisoners could secure the proper execution of their punishment. 49 Cal. 2d 75 (Cal. Sup. Ct. 1957)
[45] Cal. Penal Code § 669; Marshall, 125 F.3d 837.
[46] People ex rel. Howard v. Yelich, 87 A.D.3d 772 (2011); 42 Pa. § 9761(b).
[47] Brisco-Wade, 149 F. Supp. 2d at 894.
[48] Chitwood v. Dowd, 889 F.2d 781, 786 (8th Cir. 1989).
[49] Gilbert v. Homar, 520 U.S. 924, 930 (1997).
[50] Wolf v. McDonnell, 418 U.S. 539, 555 (1974).
[51] Id.
[52] Id.
[53] R.P. Davis, 57 A.L.R. 2d 1410 § 9:24 (Originally published in 1958).
[54] Chitwood, 889 F.2d at 786; When state action prevents the execution of a concurrent sentence, the state has altered the length of a prison term. Sandin v. Conner, 515 U.S. 472, 487 (1995).
[55] Id. at 558 (citing Dent v. West Virginia, 129 U.S. 114 (1889)).
[56] Wolf, 418 U.S. at 555, 560 (quoting Morrissey, 408 U.S. at 481).
[57] The Growth of Incarceration in the United States: Exploring Causes and Consequences, supra note 1.
[58] The U.S. prison population has increased exponentially since the early 1970s. Id.
[59] Id.
[60] Interstate Compacts, Library of Congress, https://www.loc.gov/law/help/interstate-compacts/us.php#skip_menu
[61] Michael L. Buenger, et al., The Evolving Law and Use of Interstate Compacts 3 (2d ed. 2016).
[62] Id.
[63] Each term is carefully negotiated to create a clear and enforceable contract, upholding the interstate compact’s primary purpose and understanding it is “superior in force and effect to both prior and subsequent statutory law.” Council of State Governments, A Guide to Development, Content and Format: Interstate Compacts § 1 (2003).
[64] Gray v. North Dakota Game and Fish Dept., 706 N.W.2d 614 (N.D. 2005).
[65] Jack K. Levin, 72 Am. Jur. 2d States, Etc. § 10 (Nov. 2020 update).
[66] Texas v. New Mexico, 138 S. Ct. 954 (2018).
[67] See Nebraska v. Iowa, 406 U.S. 117 (1972); Jack K. Levin, 72 Am. Jur. 2d States, Etc. § 13 (Nov. 2020 update).
[68] Kansas v. Nebraska, 135 S. Ct. 1042 (2015).
[69] 18 U.S.C. App’x 2; The Agreement requires a State to hold an individual after his sentence is complete so that he may be tried by a different State for a different crime. Alabama v. Bozeman, 533 U.S. 146, 148 (2001).
[70] The Interstate Commission for Adult Offender Supervision is the operational vehicle for the Interstate Compact for the Supervision of Parolees and Probationers. https://www.interstatecompact.org/.
[71] 4 U.S.C. § 112 (2018); Correctional officials may choose which offenders to keep and which offenders to send to institutions in other jurisdictions. Emma Kaufman, The Prisoner Trade, 133 Harv. L. Rev. 1815, 1827–28 (2020).
[72] Mitchell Wendell, Multijurisdictional Aspects of Corrections, 45 Neb. L. Rev. 520, 532 (1966).
[73] Olim v. Wakinekona, 461 U.S. 238 (1983).
[74] “The failure to integrate prison sentences for crimes committed in different states seriously inhibits a consistent, coherent treatment program during confinement… It is therefore highly desirable that multiple sentences of imprisonment imposed by different states be served at one time and under one correctional authority.” See AMERICAN BAR ASSOCIATION STANDARDS RELATING TO SENTENCING ALTERNATIVES AND PROCEDURES 3.5(a) (1968); see generally, Law of Sentencing § 9:24.
[75] 4 U.S.C. § 112 (1965).
[76] The Corrections Compact shows the usefulness of sharing prison space and prisoners. Kaufman, supra note 72.
[77] Id.
[78] 4 U.S.C. § 112 (1965); George L. Blum, 54 A.L.R. 6th 1 (2010).
[79] Kaufman, supra note 72; Effective rehabilitation is challenging to accomplish when an offender is continually moving from one facility, or one jurisdiction, to another. See AMERICAN BAR ASSOCIATION STANDARDS RELATING TO SENTENCING ALTERNATIVES AND PROCEDURES 3.5(a) (1968).
[80]Kaufman, supra note 72 at 1830.
[81] Current corrections compacts are generally silent on the topic of prisoner consent. Id. at 1833.
[82] Id. at 1842–43.
[83] AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE 18-3.8(b) (3d ed. 1994).
[84] Michigan v. Doran, 439 U.S. 282, 288 (1978).
[85] Annual Determination of Average Cost of Incarceration, 83 FR 18863 (2018).
[86] Doran, 439 U.S. at 288.
