When Credit-For-Time-Served Violates the Equal Protection Clause
by: Rjohnson • February 20, 2011 • no comments
Oregon law relating to credit for time served ("CTS") sometimes leads to unconstitutional sentences. But, because the error comes up after sentencing and maybe when no attorney is involved, it's easy for the problem to fall through the cracks, and it can be hard to fix.
The most common problem is denying concurrent time when the defendant is serving two identical sentences that must be, or actually are, imposed concurrently. In that case, an indigent defendant who is in custody prior to trial serves a longer sentence than an otherwise identical defendant who is wealthy enough to bail out would serve. This violates the Equal Protection Clause. See Bearden v. Georgia, 461 US 660, 665, 76 L Ed. 2d 221, 103 S Ct 2064 (1983) (on wealth discrimination and incarceration.)
The longer sentence for the indigent defendant comes from the statutes that provide for credit for time served: ORS 137.320 and ORS 137.370. These statutes require that the calculations be made by the sheriff (for jail sentences) or the Department of Corrections (for prison sentences). The DOC is apparently inconsistent about how they calculate sentences and about how they treat judgment terms relating to CTS and sentence-beginning dates. The statutes are not especially clear. As I read them, the defendant gets credit for, at most, one sentence, to apply against one future sentence, without regard to other pending charges, holds, detainers, or concurrent sentences. See also Nissel v. Pearce, 307 Or 102, 106, 764 P2d 224 (1988) (explaining rule and citing cases.)
The one sentence to which CTS is applied must be "directly related" to the initial crime of arrest; if it is not, there is no credit at all according to ORS 137.370(4). It's easy enough to imagine a plea bargain where the crime of arrest is dismissed and the plea is to a new, different charge. In those cases, the statutes seem to provide no credit for time served even if everyone thinks the defendant will get it. I had a case presenting almost exactly that scenario, although in my case the pre-trial incarceration was for a PV based on the defendant committing the new crime. I got it fixed and reduced the client's sentence by several months. But it probably only worked because the DA was completely reasonable.
The DOC has a lot of authority to affect the sentence, most of it post-judgment, with little oversight from the court. Suppose that the defendant is arrested for robbing Victim No. 1, the grand jury adds Victim No. 2, and the defendant pleads to both offenses and gets concurrent time. A wealthy defendant who bails out will get CTS, but an indigent defendant may not depending on how the DOC thinks the crimes fit together.
Suppose that the crimes are both Measure 11 Assault 2, carrying 70-month sentences. With concurrent time on each, the total prison time should be 70 months. (Duh.) In the case of a wealthy defendant who bails out right after arrest, that would be the total time. But an indigent defendant who did not bail out and served 12 months in jail before sentencing would serve 82 months; he'd get 12 months CTS to apply toward Sentence 1, so he'd serve 58 months more after sentencing. Those 58 months would also count toward Sentence 2. But, with the way in which the statutes work, the 12 months of pre-incarceration credit would not count toward Sentence 2. Thus, Sentence 2 would expire 70 months after sentencing, making for a total of 82 months in prison.
However, it doesn't always work that way. The prison might decide that the two crimes are related and give CTS time on both. The judge might order it, and the prison might actually honor the order. But none of those things are certain, and pertinent facts may not be decided by the plea or trial because their significance is not apparent. The problem only gets worse if you add more or unrelated cases, more jails or prisons, PVs, related sentences, or global plea deals from multiple jurisdictions.
The rule of thumb is that if your client will serve more time than a hypothetical rich client who bailed out immediately after every arrest, then your client's equal protection rights are violated. Bearden doesn't provide quite that simple a rule, but it comes close. I can't conceive of a sound policy reason to distinguish between those two people, and I doubt the state or the court will come up with one. (They're better than me at figuring out reasons to maltreat my clients, though.) If your client is entitled to concurrent time, then the de-facto partial consecutive terms are illegal. Similarly, the court should always have the power to impose concurrent time (in accordance with the statutes on that topic). If it does so, your client should get full credit.
I don't know the best way to fix this problem. The DOC doesn't always honor judgment terms about CTS or the date the sentence begins. And, under the statutes, they aren't supposed to. (The DOC is supposed to calculate CTS independently.) It certainly might help to ask the judge to specify those things in the judgment, but that won't necessarily work. State habeas corpus isn't ripe until the defendant starts serving dead time. Declaratory judgment is probably available, at least theoretically, but I don't know of any cases where that actually worked. I know of one complex mixed state-federal prosecution where the defendant was ultimately deprived of significant parts of the benefit of his plea deal, in spite of two, smart, dedicated attorneys trying to get it for him. (I'm one of those, in my calculation, and I'm biased, so maybe it was fewer than two. Definitely at least one.) It's arguable that plea-bargain terms relating to CTS are enforceable even if they are illegal. See Rise v. Board of Parole, 304 Or 385, 392-03, 745 P2d 1210 (1987) (considering but not deciding whether illegal plea-bargain terms are enforceable.)
You can sometimes fix the problem by calculating the correct release date assuming legal credit-for-time-served, calculating what sentence length will result in that release date, and then amending the judgment to lead to that date. I've done that successfully. The difficulty is making sure that all the credits, including CTS and SB 936 credits, line up correctly. It works if the DA and the judge are both fairly reasonable. But, if either one doesn't like the plan, it would be hard to make it work. Further, it may deprive the DOC of the power to actually give or deny 936 credits.
For example, if the sentence should be 100 days with 50 days CTS, and 20% 936 credits, then the correct time in custody is 80 days. If the DOC or jail refuses to recognize the 50 days CTS (because, e.g., it followed an arrest on a different, semi-related charge) and in trying to fix it the court reduces the sentence to 50 days with no CTS, then the actual time in custody would be 90 days (50 days with no 936 credits and 50 days reduced by 20%.) That's better, but not perfect. And, if you just take 20 days off the top of the desired 100-day term (so 80 days) and amend the judgment to impose a sentence of 30 days with no CTS or other credits, then the DOC can't sanction the defendant by taking away his 936 credits. That's good for the client, of course, but it would be hard to fault the DOC or the DA for objecting. And, as the judge, I'd probably side with the DA on that one. Besides, when you're done, the official records may indicate a different sentence length than everyone thinks the client was supposed to have. That could affect collateral consequences because sometimes the severity of such a consequence depends on the length of the sentence imposed.
And, finally, that solution wouldn't work for the hypothetical defendant listed earlier with two concurrent Measure 11 sentences. The court can't really, and is likely to refuse to, reduce one of the 70-month sentences to 58 months.
Only a few cases discuss this issue at all, and none are very helpful. SER Kessler v. Pearce, 68 Or App 265, 682 P2d 799 (1984) discusses correct CTS calculation, but it's purely statutory; it doesn't reach the constitutional issues. State v. McClure, 295 Or 732, 670 P2d 1009 (1983) deals with time served as a condition of probation and then a subsequent revocation, but it doesn't reach constitutional issues. And, in light of the change in sentencing since that decision, the analysis is dated. See also Holcomb v. Sunderland 321 Or 99, 894 P2d 457 (1995) (similar.) Nissel v. Pearce, 307 Or 102, 106, 764 P2d 224 (1988) dealt with sentences that were ultimately imposed consecutively. This means that the right answer isn't clear, of course. But, it also means that there is a lot of scope for a creative attorney to work with.
