# McGinnis v. Royster/Dissent Douglas

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Douglas
[p277] 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. No "good time" [p278] 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. Folette, 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.
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.
[p280] 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 case.
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. See People v. Deegan, 56 Misc.2d 567, 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.
   [p281] "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. See Wald, Pretrial Detention and [p282] 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 in 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 [p283] 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).

## Notes

* ↑ 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.
* ↑ 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.
* ↑ 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.
* ↑ The Vera Foundation in its Report, The Manhattan Bail Project, observed that "bail is generally a door to pre-trial liberty for the rich, to pre-trial 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.