This article addresses one of the most difficult areas of federal sentencing law: concurrent and consecutive sentences in dual state and federal prosecutions. Prior to the Sentencing Reform Act, the Supreme Court in Ponziset out the norm of full comity and mutual respect for the respective judgments of state and federal courts. In implementing the SRA, the Bureau of Prisons has interpreted statutes to, in effect, assert federal supremacy over state judgments, claiming the authority to execute a sentence as consecutive even where the federal judgment is silent on the issue and the state judgment calls for concurrency. This practice violates the separation of powers and the required comity for state and federal law enforcement authority.

When viewed together, the Supreme Court’s recent decisions in Setserand Bond establish that the Bureau of Prisons must defer to a state court judge’s concurrency decision when the federal judgment is silent on the question. First, Setseremphasized that the concurrent/consecutive decision is a core judicial function, highlighting the separation of powers problems inherent in the Executive Branch both prosecuting a defendant and determining the amount of time the prisoner will serve. Second, in limiting the scope of federal law enforcement pursuant to a treaty, Bondheld that, absent a clear statement from Congress, federal law does not override "the usual constitutional balance of federal and state powers." In the sentencing context, because Congress has not authorized intrusion into state sentencing power, the BOP has no authority to trump a state judgment of concurrency because only the state has the power to say how much, or how little, punishment the defendant should receive for a violation of a state statute. To avoid serious constitutional questions, the courts should construe any of three federal sentencing statutes -- 18 U.S.C. §§ 3584, 3585(b), and 3621(e) -- in a manner that restores the constitutional balance and protects prisoners from over-incarceration.

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