Appellees challenge as violative of equal protection § 230(3) of
the New York Correction Law, which denies certain state prisoners
good time credit toward parole eligibility for the period of their
presentence county jail incarceration, whereas those released on
bail prior to sentence received under the statute full allowance of
good time credit for the entire period of their prison confinement.
A three-judge District Court, viewing the good time statutory
scheme as primarily aimed at fostering prison discipline, upheld
appellees' claim on the ground that there is no rational basis for
the statutory distinction between jail and non-jail defendants in
awarding good time credit.
Held: Under the New York scheme, good time credit takes
into account a prisoner's performance under the program of
rehabilitation that is fostered under the state prison system, but
not in the county jails, which serve primarily as detention
centers. Since the jails have no significant rehabilitation
program, a rational basis exists for declining to give good time
credit for the pretrial jail-detention period; and the statute will
be sustained even if fostering rehabilitation was not necessarily
the primary legislative objective,
cf. South Carolina v.
Katzenbach, 383 U. S. 301,
383 U. S. 331;
Dandridge v. Williams, 397 U. S. 471,
397 U. S. 486.
Pp.
410 U. S.
268-277.
332 F.
Supp. 973, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ.,
joined. DOUGLAS, J., filed a dissenting opinion, in which MARSHALL,
J., joined,
post, p.
410 U. S.
277.
Page 410 U. S. 264
MR. JUSTICE POWELL delivered the opinion of the Court.
The question before us concerns the constitutionality of §
230(3) of the New York Correction Law, which denied appellee state
prisoners "good time" credit for their presentence incarceration in
county jails. [
Footnote 1]
Appellees
Page 410 U. S. 265
claim that disallowing such credit to them while permitting
credit up to the full period of ultimate incarceration for state
prisoners who were released on bail prior to sentencing deprived
them of equal protection of the laws. The three-judge District
Court, one judge dissenting, upheld their claim,
332 F.
Supp. 973 (1971). The Commissioner of Correction and other
officials (hereafter Commissioner) have appealed, and we noted
probable jurisdiction, 405 U.S. 986 (1972). [
Footnote 2]
The challenged New York sentencing system is a complex one, and
some basic definitions are required at the outset. Jail time
denotes that time an individual passes
Page 410 U. S. 266
in a county jail prior to trial and sentencing. Good time is
awarded for good behavior and efficient performance of duties
during incarceration. Both good time and jail time figure variously
in the calculations of a series of release dates that each prisoner
receives upon his arrival at state prison. Each inmate has both a
minimum parole date, which is the earliest date on which
he
may be paroled at the discretion of the Parole Board,
and a
statutory release date, which is the earliest date
he
must be paroled by the Parole Board. [
Footnote 3] The minimum parole date is
calculated under §§ 230(2) and 230(3) by subtracting the greatest
amount of good time that can be earned (10 days per month) from the
minimum sentence of an indeterminate term. [
Footnote 4] The statutory release date is calculated
under § 230(4) by subtracting the greatest amount of good time that
can be earned (5 days per month) from the
maximum sentence
of an indeterminate term.
Although appellees did receive jail-time credit for the period
of their presentence incarceration in county jail, § 230(3)
explicitly forbids, in calculating the
minimum parole
date, any good time credit for the period of county jail
detention served prior to transfer to state prison. [
Footnote 5] Appellee Royster, being unable to
post bail,
Page 410 U. S. 267
served 404 days' jail time in the Nassau County Jail prior to
his transfer to state prison to serve consecutive 5- to-10-year
terms for burglary in the third degree and grand larceny in the
first degree. Appellee Rutherford also failed to make bail, and
spent 242 days' jail time in Nassau County Jail prior to his trial,
sentencing, and transfer to state prison for concurrent terms of 10
to 20 years for robbery in the first degree and two and one-half to
five years for grand larceny in the second degree. It is undisputed
that, were appellees Royster and Rutherford to receive good time
credit for their presentence confinement in county jail, they would
be entitled to appear before the Parole Board approximately four
and three months earlier, respectively, than under the computation
required by § 230(3).
Two additional points merit mention. While New York does deny
good time credit for jail time in computing the minimum parole date
under §§ 230(2) and (3), it allows such credit in calculating the
statutory release date under § 230(4). [
Footnote 6] Finally, § 230(3) itself provides that good
time credit for jail time shall be awarded to those prisoners
confined after sentence in county penitentiaries, as opposed to
those convicted of felonies, such as appellees, who are transferred
after sentence to state prison. [
Footnote 7]
Page 410 U. S. 268
I
Section 230(3) of the New York Correction Law does, as appellees
note, draw a distinction "between the treatment of state prisoners
incarcerated prior to sentencing and those who were not similarly
incarcerated." [
Footnote 8]
Appellees contend that
"denying state prisoners good time credit for the period of
their pre-sentence incarceration in a County Jail, whereas those
fortunate enough to obtain bail prior to sentence [receive] a full
allowance of good time credit for the entire period which they
ultimately spend in custody, [
Footnote 9]"
violates the equal protection of the laws and discriminates
against those state prisoners unable to afford or otherwise qualify
for bail prior to trial.
We first note that any relative disadvantage the distinction
works on appellees is lessened by the fact that New York, on
September 1, 1967, replaced § 230 of its Correction Law with §§ 803
and 805, which apply to all convictions for offenses after that
date. [
Footnote 10] Under
the new
Page 410 U. S. 269
scheme,
"good time earned on the minimum sentence is abolished. A
prisoner meets with the Parole Board at the expiration of his
minimum term, regardless of how much good time he has earned or of
how much time he spent in jail prior to arriving at state prison.
[
Footnote 11]"
New York has given appellees -- and all those sentenced for
offenses committed prior to September 1, 1967 -- a chance to elect
the new procedure, but appellees declined to do so. Appellees thus
enjoy at least as favorable a position as all state prisoners
convicted for offenses committed subsequent to September 1, 1967,
including those released on bail prior to sentence. Appellees thus
are disadvantaged in the computation of time only in comparison
with those who were convicted of offenses committed prior to
September 1, 1967, and made bail prior to trial. Even the adverse
impact of this difference is lessened, though not eliminated, by
the fact that New York did not deprive appellees of credit for the
full amount of actual time spent in jail prior to trial and
sentencing, but only of the potential
additional 10 days
per month of good time ordinarily available under § 230(2) to
inmates for good conduct and efficient performance of duty.
[
Footnote 12]
We note, further, that the distinction of which appellees
complain arose in the course of the State's sensitive
Page 410 U. S. 270
and difficult effort to encourage for its prisoners constructive
future citizenship while avoiding the danger of releasing them
prematurely upon society. The determination of an optimal time for
parole eligibility elicited multiple legislative classifications
and groupings, which the court below rightly concluded require only
some rational basis to sustain them.
James v. Strange,
407 U. S. 128,
407 U. S. 140
(1972);
Lindsey v. Normet, 405 U. S.
56,
405 U. S. 73-74
(1972);
Schilb v. Kuebel, 404 U.
S. 357 (1971);
Dandridge v. Williams,
397 U. S. 471,
397 U. S. 487
(1970). Appellees themselves recognize this to be the appropriate
standard. [
Footnote 13] For
this Court has observed that
"[t]he problems of government are practical ones and may
justify, if they do not require, rough accommodations -- illogical,
it may be, and unscientific."
Metropolis Theatre Co. v. City of Chicago, 228 U. S.
61,
228 U. S. 69-70
(1913). We do not wish to inhibit state experimental
classifications in a practical and troublesome area, but inquire
only whether the challenged distinction rationally furthers some
legitimate, articulated state purpose. We conclude that it
does.
II
The Commissioner defends the distinction by noting that "state
prisons differ from county jails with respect to purpose, usage and
availability of facilities." State prisons are "intended to have
rehabilitation as a prime purpose and the facilities at these
institutions are built and equipped to serve this purpose." The
Commissioner cites the presence at state prisons of "educational
and vocational services such as schools, factories, job-training
programs and related activities." [
Footnote 14] At argument, the Commissioner noted:
"We have barber shops. We teach
Page 410 U. S. 271
trades. We manufacture a lot of goods. . . . Greenhaven State
Prison has a textile factory. [
Footnote 15]"
We pass no judgment on the success or merits of the State's
efforts, but note only that, at state prisons a serious
rehabilitative program exists. County jails, on the other hand,
serve primarily as detention centers. The Commissioner asserts they
are
"neither equipped nor intended to do anything more than detain
people awaiting trial and maintain no schools, run no factories and
require no work from these inmates. [
Footnote 16]"
While appellees do point to the existence of some rehabilitative
or recreational facilities within some county jails, [
Footnote 17] it is clear that
nothing comparable to the State's rehabilitative effort exists.
These significant differences afford the basis for a different
treatment within a constitutional framework. We note that the
granting of good time credit toward parole eligibility takes into
account a prisoner's rehabilitative performance. Section 230(2) of
the New York Correction Law authorizes such credit toward the
minimum parole date "for good conduct
and efficient and willing
performance of duties assigned [emphasis added]." [
Footnote 18] The regulations of the
New York Department of Correction, 7 N.Y.C.R.R. § 260.1(a), state
that:
"[T]he opportunity to earn good behavior allowances offers
inmates a tangible reward for
positive efforts made during
incarceration [emphasis added]. [
Footnote 19]"
As the statute and regulations
Page 410 U. S. 272
contemplate state evaluation of an inmate's progress toward
rehabilitation, in awarding good time, [
Footnote 20] it is reasonable not to award such time
for pretrial detention
Page 410 U. S. 273
in a county jail where no systematic rehabilitative programs
exist and where the prisoner's conduct and performance are not even
observed and evaluated by the responsible state prison officials.
Further, it would hardly be appropriate for the State to undertake
in the pretrial detention period programs to rehabilitate a man
still clothed with a presumption of innocence. In short, an inmate
in county jail is neither under the supervision of the State
Correction Department nor participating in the State's
rehabilitative programs. Where there is no evaluation by state
officials and little or no rehabilitative participation for anyone
to evaluate, there is a rational justification for declining to
give good time credit. [
Footnote
21]
III
We do not agree with the court below that the integrity of
appellants' assertions as to rehabilitation is undermined by the
fact that the State does grant under § 230(3) good time credit for
presentence jail time to
Page 410 U. S. 274
county penitentiary inmates and under § 230(4) to state
prisoners for the purpose of calculating their statutory release
dates. [
Footnote 22] The
legislature could have concluded rationally that county
penitentiary inmates, who are nonfelons with less than one-year
sentences, required quantitatively and qualitatively less
rehabilitation -- with fewer risks of misevaluation -- than inmates
confined to state prison for more serious crimes. And the
legislature could rationally have distinguished between the minimum
parole date and the statutory release date on the ground that an
acceleration of the minimum parole date posed a greater danger that
an inmate would be released without adequate exposure to
rehabilitative programs and without adequate evaluation by prison
officials. Thus, New York's decision to deny good time credit for
presentence jail time solely with respect to a state prisoner's
minimum parole date is rationally justified on the ground that the
risk of prematurely releasing unrehabilitated or dangerous
criminals may well be greatest when the parole decision is made
prior to expiration of the minimum sentence.
IV
Neither appellees nor the court below contended that increased
opportunity for state evaluation of an inmate's behavior and
rehabilitative progress was not a purpose of the challenged
provision of § 230(3). Appellees state
Page 410 U. S. 275
only that the rehabilitative purpose was not the "overriding"
one, [
Footnote 23] and the
District Court noted that "the legislature's
primary aim
in enacting the good time statute was to foster and insure the
maintenance of prison discipline." 332 F. Supp. at 978 (emphasis
added). [
Footnote 24]
Page 410 U. S. 276
We do not dispute these statements: the disciplinary purpose is
certainly an important and possibly the "primary" aim of the
legislation. [
Footnote 25]
Yet our decisions do not authorize courts to pick and choose among
legitimate legislative aims to determine which is primary and which
subordinate. Rather, legislative solutions must be respected if the
"distinctions drawn have some basis in practical experience,"
South Carolina v. Katzenbach, 383 U.
S. 301,
383 U. S. 331
(1966), or if some legitimate state interest is advanced,
Dandridge v. Williams, 397 U.S. at
397 U. S. 486.
So long as the state purpose upholding a statutory class is
legitimate and nonillusory, its lack of primacy is not
disqualifying.
When classifications do not call for strict judicial scrutiny,
this is the only approach consistent with proper judicial regard
for the judgments of the Legislative Branch. The search for
legislative purpose is often elusive enough,
Palmer v.
Thompson, 403 U. S. 217
(1971), without a requirement that primacy be ascertained.
Legislation
Page 410 U. S. 277
is frequently multi-purposed: the removal of even a
"subordinate" purpose may shift altogether the consensus of
legislative judgment supporting the statute. Permitting
nullification of statutory classifications based rationally on a
nonprimary legislative purpose would allow courts to peruse
legislative proceedings for subtle emphases supporting subjective
impressions and preferences. The Equal Protection Clause does not
countenance such speculative probing into the purposes of a
coordinate branch. We have supplied no imaginary basis or purpose
for this statutory scheme, but we likewise refuse to discard a
clear and legitimate purpose because the court below perceived
another to be primary.
V
As the challenged classification here rationally promotes the
legitimate desire of the state legislature to afford state prison
officials an adequate opportunity to evaluate both an inmate's
conduct and his rehabilitative progress before he is eligible for
parole, the decision of the District Court is
Reversed.
[
Footnote 1]
Section 230(3):
"In the case of a definite sentence prisoner, said reduction
shall be computed upon the term of the sentence as imposed by the
court less jail time allowance, and in the case of an indeterminate
sentence prisoner said reduction shall be computed upon the minimum
term of such sentence, less jail time allowance. No prisoner,
however, shall be released under the provisions hereof from a state
prison until he shall have served at least one year. In the case of
a prisoner confined in a penitentiary, said reduction shall be
computed upon the term of the sentence as imposed by the court,
including jail time allowance. Subject to the rules of the
commissioner of correction, the maximum reduction of ten days in
each month may, in the discretion of the board hereinafter provided
for, be in whole or in part withheld, forfeited or cancelled, in
accordance with the rules of the commissioner of correction for bad
conduct, violation of prison rules or failure to perform properly
duties assigned."
Other relevant sections read as set forth below.
Section 230(2):
"Every prisoner confined in a state prison or penitentiary,
except a prisoner sentenced for an indeterminate term having a
minimum of one day and a maximum of his natural life, may receive,
for good conduct and efficient and willing performance of duties
assigned, a reduction of his sentence not to exceed ten days for
each month of the minimum term in the case of an indeterminate
sentence, or of the term as imposed by the court in the case of a
definite sentence. The maximum reduction allowable under this
provision shall be four months per year, but nothing herein
contained shall be construed to confer any right whatsoever upon
any prisoner to demand or require the whole or any part of such
reduction."
Section 230(4):
"Every prisoner confined in an institution under the
jurisdiction of the state department of correction for an
indeterminate term, except a prisoner sentenced for a term having a
maximum of natural life, may receive, for good conduct and
efficient and willing performance of duties assigned, a reduction
of his sentence not to exceed two days for each month of the
maximum term. For meritorious progress and achievement in a
treatment program to which he has been assigned, following
appropriate testing and classification, such prisoner may also
receive a reduction of his sentence not to exceed three additional
days for each month of the maximum term. In no event, however,
shall the maximum reduction allowable under this subdivision exceed
two months for each year of the maximum sentence, nor shall any
such reduction be calculated under this subdivision to reduce the
time actually served to a term less than the minimum sentence
imposed by the court. . . ."
[
Footnote 2]
The Commissioner claims in his brief that the court below should
have treated the instant case not as a class action, Fed.Rule
Civ.Proc. 23, but as a petition for habeas corpus, with the
attendant requirement that appellees exhaust their state remedies.
Brief for Appellants 2. Appellants did not, however, raise this
question in their jurisdictional statement, and did not argue it
before the Court. In light of this, it becomes unnecessary to
comment further on any possible exhaustion question.
[
Footnote 3]
He also has a maximum expiration date which is the date of the
maximum sentence to which an inmate can be held if he receives no
good time credit at all. This date, unlike the other two, bears no
direct relevance to the instant case.
[
Footnote 4]
Both prisoners here were sentenced to indeterminate terms.
See § 230(1):
". . . A sentence to imprisonment in a state prison having
minimum and maximum limits fixed by the court or the governor is an
indeterminate sentence."
[
Footnote 5]
As the court below noted:
"There is no doubt that, by its express wording, Section 230
mandates the denial of good time credit for the time plaintiffs
served in county jail awaiting trial and sentencing. Subsection 2
thereof provides that a state prisoner may receive,"
"for good conduct and efficient and willing performance of
duties assigned, a reduction of his sentence not to exceed ten days
for each month of the minimum term in the case of an indeterminate
sentence . . . ,"
"and subsection 3 states that,"
"in the case of an indeterminate sentence prisoner, said
reduction shall be computed upon the minimum term of such sentence,
less jail time allowance."
"(Emphasis added.)"
332 F.
Supp. 973, 97975.
[
Footnote 6]
See People v. Deegan, 56 Misc.2d 567, 289 N.Y.S.2d 285
(1968);
Paul v. Warden, N.Y.L.J. May 21, 1969, p. 18, col.
6.
[
Footnote 7]
"In the case of a prisoner confined in a penitentiary, said
reduction shall be computed upon the term of the sentence as
imposed by the court,
including jail time allowance."
(Emphasis added.)
[
Footnote 8]
Brief for Appellees 5.
[
Footnote 9]
Id. at 5-6.
[
Footnote 10]
The court below correctly noted:
"[The] statutory scheme of § 230, which is the subject of this
lawsuit, is no longer the law in New York. On September 1, 1967, §
230 was replaced by §§ 803 and 805 of the Correction Law and §§
70.30 and 70.40 of the new Penal Law, which sections apply to all
convictions for offenses committed on or after that date (but not
to convictions -- as of plaintiffs herein -- for offenses committed
prior to the effective date). Thus, the scope of this case (and of
the proposed class) is necessarily limited, for the challenged
statute, § 230(3) of the Correction Law, now applies only to those
prisoners who were convicted for offenses committed before
September 1, 1967, whose minimum terms have not yet expired, who
have not yet met with the Parole Board, and who have not yet
elected the 'conditional release' program offered by the new law
and made available to old law prisoners by § 230-a of the
Correction Law. Of these prisoners, a smaller class yet comprised
of those inmates who served time in county jail prior to sentence
to state prison -- actually feel the effect of § 230(3)'s
proscription against good time credit for jail time. Nevertheless,
the briefs in this case attest to the continuing effect of that
mandate on a substantial number of individuals."
332 F. Supp. at 975 n. 4.
[
Footnote 11]
Brief for Appellants 12.
[
Footnote 12]
As noted above, this would make a difference of three and four
months, respectively, in the time appellees Rutherford and Royster
were eligible to appear before the Parole Board.
[
Footnote 13]
Tr. of Oral Arg. 30.
[
Footnote 14]
Brief for Appellants 14.
[
Footnote 15]
Tr. of Oral. Arg. 13.
[
Footnote 16]
Brief for Appellants 15.
[
Footnote 17]
Brief for Appellees 17. But the State notes that "some counties
have absolutely nothing. Some have a little something." Tr. of Oral
Arg. 6.
[
Footnote 18]
See n 1,
supra.
[
Footnote 19]
Appellants further note that:
"Section 260.3 sets forth the criteria for awarding allowances
and states: "
" (b) In evaluating the amount of allowance to be granted, the
statutory criteria (
i.e., good behavior, efficient and
willing performance of duties assigned, progress and achievement in
an assigned treatment program) shall be viewed in the light of the
following factors: "
" (1) The attitude of the inmate;"
" (2) The capacity of the inmate; and"
" (3) The efforts made by the inmate within the limits of his
capacity."
"These factors are evaluated by a time allowance committee,
whose purpose is to make recommendations to the superintendent as
to the amount of good behavior allowance to be granted to inmates
who are eligible to be considered for such allowance. 7 N.Y.C.R.R.
261.2. The time allowance committee awards good time on the
following criteria [7 N.Y.C.R.R. 261.3]: "
" (d) The committee
shall consider the entire file of the
inmate and shall interview the inmate and then shall decide
upon a recommendation as to the amount of good behavior allowance
to be granted,
applying the principles set forth in sections
260 . . . and 260.4 of this Part."
" (e) The committee shall not recommend the granting of the
total allowance authorized by law or the withholding of any part of
the allowance in accordance with any automatic rule, but
shall
appraise the entire institutional experience of the inmate and
make its own determination."
"(Emphasis added.)"
Reply Brief for Appellants 2-3.
[
Footnote 20]
See also the affidavit of the Deputy Commissioner of
the Department of Correction, John R. Cain, who stated that:
"The actual allowance of 'good time' is discretionary, and is
awarded as an incentive for good conduct. It is a means for
encouraging participation in programs, efficient work and
discipline."
"The state correctional system seeks to encourage rehabilitation
by work participation by inmates, job training programs and
education programs. An inmate can be evaluated in his work and
participation in the facility's programs and 'good time' granted as
an incentive. Prior to being received in the facility, however, an
inmate who is in jail is not under the supervision of the State
Correction Department, and is not involved in the facility program.
Since the inmate is not participating in the state programs while
in jail, there is no opportunity to evaluate him nor need to
encourage his participation."
App. 19a.
[
Footnote 21]
Appellants further correctly note:
"In fact, until recently changed by federal policy, the federal
prison system itself did not require the awarding of good time for
pretrial incarceration under 18 U.S.C. § 4161, which awards good
time solely for good behavior. Section 4161 states that good time
begins to run 'with the day on which the sentence commences to
run,' and the sentence does not start to run until the prisoner is
received in a federal penitentiary.
See Blackshear v. United
States, 434 F.2d 58 (5th Cir.1970). The federal courts have
uniformly upheld the denial of the opportunity to earn good time on
this jail time.
Bandy v. Willingham, 398 F.2d 333 (10th
Cir.1968),
cert. den., 393 U.S. 1006;
Aderhold v.
Ellis, 84 F.2d 543 (5th Cir.1936),
cert. den., 299
U.S. 587;
Swope v. Lawton, 83 F.2d 814 (9th
Cir.1936)."
Brief for Appellants 20-21.
[
Footnote 22]
See supra at
410 U. S. 268,
and nn. 7 and 8. The court below stated:
"Whatever the merit in defendants' attempted distinction, the
fact remains that state prisoners can be, and, under certain
circumstances, are, granted good time credit for jail time for
reasons other than as a reward for participation in the various
rehabilitative programs of the state prison system. The awarding of
good time for jail time to these two classes of prisoners only
reinforces the belief that the legislature's primary aim in
enacting the good time statute was to foster and insure the
maintenance of prison discipline."
332 F. Supp. at 978.
[
Footnote 23]
At oral argument, the following instructive colloquy
occurred:
"Q. Then it is your position that the only purpose at all, sir,
by the statute, exclusively, the only single purpose, is the
disciplinary one?"
"MR. SORGE: Your Honor, it is extremely difficult to say whether
the only purpose is just for the discipline. I believe that the
court has --"
"Q. If a purpose is the rehabilitation one, then are you not in
some trouble?"
"MR. SORGE: If the main purpose is?"
"Q. If a purpose, not the main purpose, a purpose."
"MR. SORGE: I do not believe so, Your Honor, because, as the
district court stated, the overriding consideration in this case is
disciplinary."
"
* * * *"
"Q. You go further then than the district court, I take it,
because I read the district court's opinion the same way MR.
JUSTICE BRENNAN does, as saying that rehabilitation is a
subordinate function and that its opinion is based on that. You say
that it really is no function at all?"
"MR. SORGE: I believe that, if you take the state prisoners
themselves, Mr. Justice, there might be a subordinate position.
However, I would repeat that the overriding consideration is the
disciplinary aspect of it."
Tr. of Oral Arg. 230.
[
Footnote 24]
See also the court's statement that:
"Defendants contend that good time is granted as an incentive to
the inmates to participate in these prison rehabilitation programs
and that, since county jails are not equipped to provide such
services, there is no basis for granting good time for time served
therein. If it were clear that the awarding of good time was based
solely and exclusively on an evaluation of an inmate's performance
in such programs so endemic to the state prison system, the denial
of good time for jail time might be understandable; however, this
does not appear to be the case. Rather, it seems that the
overriding consideration in the granting of good time reductions is
the maintenance of prison discipline."
332 F. Supp. at 977.
[
Footnote 25]
The court below noted that the disciplinary purpose of the
statute is demonstrated by the fact that
"a prisoner is immediately and automatically credited with a
maximum allowance of good time credit for future good behavior at
the time his minimum parole date is initially fixed upon his
arrival in state prison. In effect, then, a prisoner does not
'earn' good time credit as time goes on for exemplary performance
in assorted prison programs, but rather simply avoids being
penalized for bad behavior."
The court then cited § 235 of New York Correction Law providing
that good time may be withheld as "
punishment for offenses
against the discipline of the prison or penitentiary'
(emphasis added). . . ." 332 F. Supp. at 977-978.
The statements above do demonstrate a disciplinary purpose for
the statute, but do not negate the rehabilitative one. There is
nothing to show that good time credit may not be revoked for
failure of the inmate to participate acceptably in the State's
rehabilitative program as well as for disciplinary violations.
Indeed, § 230(3) requires loss of good time for "bad conduct,
violation of prison rules or
failure to perform properly duties
assigned." (Emphasis added.)
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
Under § 230(3) of the New York Correction Law, a prisoner loses
"good time" as punishment for offenses against the discipline of
the prison. The statutory appearance of inmates before a parole
board is computed by allowance of up to 10 days for "good conduct"
each month under the law governing appellees. [
Footnote 2/1] No "good time"
Page 410 U. S. 278
credit is allowed, however, for the period of their presentence
incarceration in a county jail. Thus, two prisoners -- one out on
bail or personal recognizance pending trial and the other confined
in jail while awaiting trial -- are treated differently when it
comes to parole, though each is convicted of the same crime and
receives the identical sentence. The result, as the opinion of the
Court makes plain, is that appellees are required to wait some
months longer before they may appear before the Parole Board than
do those who were out on bail or on personal recognizance pending
trial but sentenced to the same term for the same crime.
The "good time" deduction is not based on progress toward
rehabilitation, but is an inducement to inhibit bad conduct. That
is what the three-judge court held in
332 F.
Supp. 973. That construction accurately reflects New York's
interpretation of § 230(3). The court in
Perez v.
Follette, 58 Misc.2d 319, 295 N.Y.S.2d 231, said:
"The policy underlying the discretionary grant of good time
reductions is clear. The attitude and conduct of prisoners should
improve if they are offered an incentive for good and productive
behavior, while, at the same time, the fact that reductions can be
withheld will inhibit bad conduct."
Id. at 321, 295 N.Y.S.2d at 233.
Page 410 U. S. 279
That discipline -- not rehabilitative progress -- is the key to
"good time" credit is evidenced in another way. Once a prisoner
arrives at prison, his future "good time" is immediately computed
and credited to his sentence.
"In effect, then, a prisoner does not 'earn' good time credit as
time goes on for exemplary performance in assorted prison programs,
but rather simply avoids being penalized for bad behavior."
332 F. Supp. at 978. That is confirmed by § 235 of the New York
Correction Law:
"[A] punishment for offenses against the discipline of the
prison or penitentiary [is] in accordance with the rules
hereinbefore mentioned. Reduction credited to a prisoner in the
first instance, in his account, by the warden, as provided in
section two hundred and thirty shall stand as the reduction
allowed, unless withheld wholly or partly by the board as
punishment, as above provided."
Moreover, under § 230(4) of the Act, jail time is not excluded
from the computation of a prisoner's maximum good time allowance
from the maximum term of an indeterminate sentence. That is the
earliest date on which an inmate must be paroled, unlike the one we
have here, which involves the earliest date on which a prisoner
may be paroled. But no rational grounds have been advanced
for allowing "good time" credit for jail time in one case, but not
in the other.
The claim that "good time" is correlated to rehabilitative
programs that only prisons have is the red herring in this
litigation. The District Court exposed the fallacy in that
rationale. Since the "good time" credit is to induce good behavior
by prisoners while they are confined, the place of their
confinement becomes irrelevant. Jail-time allowance is allowed
those confined in county penitentiaries. § 230(3). And, as I have
said, jail time is credited in computing a prisoner's statutory
release date.
Page 410 U. S. 280
It would seem that the "good time" provision in § 230(3) is used
capriciously, since it is allowed in cases not dissimilar to the
present one.
After all is said and done, the discrimination in the present
case is a statutory one leveled against those too poor to raise
bail and unable to obtain release on personal recognizance.
[
Footnote 2/2]
See People v.
Deegan, 56 Misc.2d 67, 289 N.Y.S.2d 285. That is the real rub
in the present case.
In
Paul v. Warden, N.Y.L.J. May 21, 1969, p. 18, col.
6, the Court said:
"In computing the allowance of 'time off' for good behavior,
respondent considered only that time served subsequent to sentence
as eligible for the allowance. Time served prior to sentence was
excluded from the computation. The respondent's computation follows
the method suggested by the Department of Correction."
"This court is not in agreement with [the] method employed. It
is inequitable in that it discriminates against those persons
charged with crime that are able to furnish bail upon arraignment
and those remanded as a result of inability to furnish bail.
[
Footnote 2/3] "
Page 410 U. S. 281
"The inequity is blatantly apparent in the following cases. Two
persons are charged with crimes identical in nature. On
arraignment, defendant A furnishes bail. A is subsequently
sentenced, after a trial resulting in a verdict finding him guilty
as charged, to one year in the county jail. Predicated upon his
good behavior during the period of his incarceration, A would be
allowed a reduction of sixty days from the sentence of one year,
and would serve a total of 305 days. The defendant B, if confined
for a period of 350 days prior to trial and sentence, and, upon
sentence, was sentenced to confinement for one year, would only be
entitled to 'time off' for the period served following sentence or
one-sixth of fifteen days, for a total allowance of two days
reduction in sentence, despite good behavior during his entire
period of imprisonment. B, because of inability to furnish bail,
would thus serve 363 days, as compared to the 305 days served by
A."
"This court refuses to countenance such disparity and
discrimination."
If "good time" were related to rehabilitative progress, I would
agree that the law passes muster under the Equal Protection Clause
of the Fourteenth Amendment. But since "good time" is disallowed
only to those who cannot raise bail or obtain release on personal
recognizance, the discrimination is plainly invidious.
We deal here with a deep-seated inequity. In New York City, as
of 1964, 49% of those accused were imprisoned before trial, while
only 40% were imprisoned after conviction. [
Footnote 2/4]
See Wald, Pretrial Detention
and
Page 410 U. S. 282
Ultimate Freedom: A Statistical Study, 39 N.Y.U.L.Rev. 631, 634
(1964). It is poverty that is "generally accepted as the main
reason for pretrial detention."
Id. at 636. The inequality
apparently appears in the end product, since
"the longer the period of detention before disposition of the
case, the greater the likelihood of a prison sentence. . . . The
key seems to be the defendant's at-large status at the time of
sentencing. The glow of freedom apparently shines through."
Id. at 635.
Another sample of 385 defendants showed that 64% of those
continuously in jail from arraignment to adjudication were
sentenced to prison, while only 17% of the 374 who made bail
received prison sentences. Rankin, The Effect of Pretrial
Detention, 39 N.Y.U.L.Rev. 641, 643 (1964). Detained persons are
more likely to be sentenced to prison than bailed persons,
regardless of
Page 410 U. S. 283
whether high or low bail amounts have been set.
Id. at
641.
These studies were made by the Vera Foundation, founded by Louis
Schweitzer.
See Programs in Criminal Justice Reform, Vera
Institute of Justice, Ten-Year Report 1961-1971 (1972). That Report
states that "people who were too poor to afford bail or private
counsel ended up in prison more often than those who could pay."
Id. at 96.
And see Ares, Rankin, and Sturz, The
Manhattan Bail Project: An Interim Report on the Use of Pre-Trial
Parole, 38 N.Y.U.L.Rev. 67 (1963).
The present case is on the periphery of one of the most critical
problems in criminal law enforcement.
The important issue involved in this case is not when and
whether a prisoner is released. It concerns only the time when the
Parole Board may give a hearing. To speed up the time of that
hearing for those rich or influential enough to get bail or release
on personal recognizance, and to delay the time of the hearing for
those without the means to buy a bail bond or the influence or
prestige that will give release on personal recognizance emphasizes
the invidious discrimination at work in § 230(3).
[
Footnote 2/1]
The statutory scheme of § 230 was replaced on September 1, 1967,
by §§ 803 and 805 of the Correction Law and §§ 70.30 and 70.40 of
the new Penal Law, which sections apply to all convictions for
offenses committed
on or after that date (but not to
convictions -- as of appellees -- for offenses committed
prior to the effective date). The challenged statute, §
230(3) of the Correction Law, now applies only to those prisoners
who were convicted for offenses committed before September 1, 1967,
whose minimum terms have not yet expired, who have not yet met with
the Parole Board, and who have not yet elected the "conditional
release" program offered by the new law and made available to old
law prisoners by § 230-a of the Correction Law. Of these prisoners,
a smaller class yet -- composed of those inmates who served time in
county jail prior to sentence to state prison -- actually feel the
effect of the § 230(3) proscription against good time credit for
jail time. Nevertheless, the mandate of § 230(3) affects a
substantial number of individuals.
See 332 F.
Supp. 973, 975 n. 4.
[
Footnote 2/2]
The court in
People v. Deegan, 56 Misc.2d 567, 289
N.Y.S.2d 285, in refusing to infer that § 230(4) must exclude jail
time, since § 230(3) does so, explicitly said:
"Adoption of the respondent's interpretation would have the
effect of prejudicing a defendant who was unable to raise funds in
order to be released on bail, and would deprive him of 'equal
protection of the laws' in violation of the 14th Amendment of the
United States Constitution. For example, a defendant who was at
liberty on bail prior to judgment, and received a similar sentence,
would be subject to a maximum of 16 months, as opposed to 18 months
for petitioner, who could not afford bail and who languished in
jail awaiting sentence. If there is logic or justice in this
anomaly, it escapes the court."
Id. at 568, 289 N.Y.S.2d at 287.
[
Footnote 2/3]
This loss is real, for
"[w]hat he is losing . . . is the possibility that, if he
appeared before the board, he might persuade it to decide in his
favor. Of course, this loss, in practical human terms, is serious,
and involves a chance for at least qualified liberty."
United States ex rel. Campbell v. Pate, 401 F.2d 55,
57.
[
Footnote 2/4]
The Vera Foundation, in its Report, The Manhattan Bail Project,
observed that "bail is generally a door to pretrial liberty for the
rich, to pretrial detention for the poor." For the latter, it
notes, "poverty is, in fact, a punishable offense." Even those with
money may not be able to purchase a bail bond (
id. at
3).
"The bondsman is responsible to no one, and is subject to no
review. He can refuse to write a bail bond whenever he chooses --
because he 'mistrusts' a defendant, because he dislikes members of
a given minority group, or because he got up on the wrong side of
the bed. A bail bondsman is not obliged to have valid or sensible
reasons."
Id. at 4.
The Vera Foundation has a staff that works with the magistrate
to see which of those arrested may properly be released on their
personal recognizance.
"During the Project's first 30 months in the Manhattan courts,
2300 defendants were released on their own recognizance upon the
recommendation of Vera staff members."
"Ninety-nine per cent of these defendants returned to court when
required; only one per cent failed to appear."
"During this same period, about three per cent of those freed on
bail failed to appear in court. Thus, it appears that verified
information about a defendant's background is a more reliable
criterion on which to release a defendant than is his ability to
purchase a bail bond."
Id. at 7.