The law involving the question of awarding credit for time served in custody awaiting disposition is an evolving body of case law. Massachusetts G.L. c. 279 ß33A mandates that the sentencing court award jail credits for "the number of days spent by the prisoner in confinement prior to such sentence awaiting and during trial." Massachusetts G.L. c. 127 ß129B mandates that the facility where the sentence is being served award the credits unless the court had already done so. The trend has been to expand judicial discretion and use considerations of fairness in determining whether credit should be awarded. This article will examine some of the questions that courts and practitioners are confronted with in determining whether jail credits are to be awarded.
In making this determination, courts are advised to avoid "an overly technical reading of the statute which should be read against the backdrop of fair treatment of the prisoner." Commonwealth v. Grant, 366 Mass. 272, 275 (1974). Where jail credits statutes do not expressly apply, courts "have been guided by considerations of fairness and a proper sense of justice." Chalifoux v. Commissioner of Correction, 375 Mass. 424, 427 (1978); Brown v. Commissioner of Correction, 336 Mass. 718, 721 (1958). Courts are also advised to avoid the occurrence of "dead time," which is time served for which the defendant receives no credit, Commonwealth v. Maldonado, 65 Mass. App. Ct. 250, 251-2 (2005); Manning v. Supt. MCI-Norfolk, 372 Mass. 387, 394 (1997); Piggott v. Commissioner Of Correction, 40 Mass. App. Ct. 678, 682 (1996), unless the defendant is "banking" time toward a future sentence. Commonwealth v. Milton, 427 Mass. 18, 24-25 (1998). Jail credits should also not be awarded if the defendant has already received credit toward another sentence. Commonwealth v. Carter, 10 Mass. App. Ct. 618 (1980); Commonwealth v. Blaikie, 21 Mass. App. Ct. 956 (1986).
1. If the Defendant Is Serving Time on a Sentence and Bail Is Imposed on a Second Case, Does the Defendant Receive Credit when Sentenced On that Case?
The courts have answered "no" in this situation. In Petition Of Needel, 344 Mass. 260 (1962), a defendant was serving a sentence on a Suffolk County case while a Norfolk County case was pending. Upon conviction of the Norfolk County charge, the defendant received a concurrent sentence. The court denied his request for credit for the time he was serving on the Suffolk County sentence stating that credit should only be given where the defendant's liberty was dependent on his posting of bail. Since he was serving a sentence on another matter, the posting of bail would not have caused him to be released from custody. See also Libby v. Commissioner of Correction, 353 Mass. 472 (1968).
2. Does the Defendant, Who Is Sentenced on One Case Receive Credit for Time Served on Another Case?
Courts have answered this question on a case-by-case basis. A defendant, whose first sentence was vacated, was credited with time served on that sentence toward a second consecutive sentence, which was imposed prior to the date the first sentence was vacated. Manning v. Supt. MCI-Norfolk, supra; Brown v. Commissioner of Correction, 336 Mass. 718 (1958). Where a defendant has two pending cases, if the second one is related to the first, credit is generally awarded. In Commonwealth v. Grant, supra, the defendant was held in federal custody on charges related to Massachusetts cases on which he was eventually sentenced. He was acquitted on the federal charges and sought credit for that time toward his Massachusetts sentence. The court focused on the fact the determination of where he was in custody awaiting trial was a result of prosecuting authorities "sorting out" the charges. It also dismissed the commonwealth's argument against awarding the credits as "an overly technical reading of the statute, which should be read against the backdrop of fair treatment of the prisoner." Id. at 366 Mass. 275. In McCormack v. Commonwealth, 345 Mass. 514 (1963), the defendant was awaiting trial on three related cases. Bail was imposed on one of the cases. He was sentenced on another of the cases that did not have bail imposed and did not receive a sentence on the case he was detained on. The court held that he was entitled to credit for time served even though the case that had bail was not the case he was sentenced on.
The question becomes more clouded where the defendant is seeking the application of jail credits when the case he or she is sentenced on is unrelated to the case that caused pretrial detention but did not cause the defendant to receive a sentence. In Commonwealth v. Foley, 17 Mass. App. Ct. 238, 243 (1983), the court stated that, "fairness requires that a prisoner not be penalized or burdened by a denial of credit because he has been acquitted or because the prosecutor has seen fit not to go forward on the charges on which bail has been set." Id. at 243-4. The court considered the avoidance of "dead time," where the jail credits would otherwise not be applied toward any sentence, to be an important factor in whether to award the credits. The court then observed that only where double credit was sought have courts refused to award jail credits for unrelated cases. Regardless, the court affirmed the denial of credit for 16 months that the defendant served awaiting trial on an unrelated charge because the sentencing judge specifically stated on the record that the intention of the court was that the 16 months be in addition to the rest of the imposed sentence.
The Supreme Judicial Court carved out a big exception to the principle that fairness requires the awarding of credits on an unrelated case to avoid the occurrence of dead time. In Commonwealth v. Milton, supra, the court held that a defendant was not entitled to have pretrial time applied toward a subsequent sentence on a new, unrelated charge. In that case, a probationer was surrendered and placed in custody on bail awaiting trial on a new charge of armed robbery. The defendant spent 410 days in custody until he was acquitted on a reduced charge of unarmed robbery on the new case. The probation surrender was then withdrawn and he was returned to probation status. He was subsequently arrested for another offense, which caused revocation of his probation and imposition of the sentence. He sought credit for the 410 days previously spent in custody. In denying the defendant's request, the court stated that the general rule is that a person is not entitled to credit for time served on an unrelated case, but an exception can be made in "some circumstances" to avoid the occurrence of dead time. The court said in the case before it, there was an overriding concern that the defendant could "bank" the credits toward a future offense. This could make him potentially immune from having to serve a sentence if the term imposed on the new offense was less than the amount of "banked" time. Therefore, fairness and strong public policy considerations dictated that the credits not be awarded. The court distinguished this case from Manning, supra, where the defendant received credit from a prior vacated sentence toward a second consecutive sentence by stating that in that case the subsequent sentence was imposed prior to the vacating of the first sentence. Therefore, since the defendant was not on the street, there was no concern about the defendant being immune from a sentence for a subsequent sentence on a new offense because of "banked" credits.
3. Does the Defendant Receive Jail Credits for Time Spent at Bridgewater State
The answer is clearly "yes" if it occurred prior to trial. In Stearns, Petitioner, 343 Mass. 53 (1961), a detainee was committed to the Bridgewater State Hospital for four years while awaiting trial. The court, quoting from the language of M.G.L. c. 127 ß129B, held that because he was "held in custody awaiting trial," the detainee was entitled to credit toward his sentence.
Courts seem to have more difficulty resolving the issue of whether the credit is awarded when a defendant is committed to the hospital after conviction and during a stay of execution of sentence. In Commonwealth v. Foley, supra, the defendant received a sentence of 18 years to MCI-Concord. That sentence was ordered to begin subsequent to the termination of a six-month post-conviction commitment to Bridgewater. In denying the defendant's request for credit, the Appeals Court held that the commitment was legal. This was in part because the aggregate length of the sentence imposed, plus the period of confinement in the hospital, was less than the statutory maximum for the offense, and in part because the judge stated that if the commitment exceeded six months, the additional time should be credited toward the sentence. In Commonwealth v. McLaughlin, 431 Mass. 506 (2000), the Supreme Judicial Court overruled Foley. In this case, the court sentenced the defendant to 19 to20 years on a manslaughter conviction and a consecutive sentence on another charge. Execution of the sentences was stayed while the defendant was committed to Bridgewater for more than two years. The defendant argued that the judge had no authority to stay the sentences and that he should receive credit for the time spent at Bridgewater. The court agreed, stating, "[t]o allow the denial of credit because of this fortuity would create an anomaly raising questions of basic fairness." Id. at 515. The court said that the power of a court to stay execution of a sentence is limited, and even if it was properly used in this case, it should not have the effect of lengthening the period of confinement beyond the term of the sentence imposed. Id. at 515-19.
4. Does the Defendant Get Credit for a Post-Conviction Stay of Execution of Sentence Where He or She Remains In Custody During the Stay?
One might think that the answer to this question is obviously "yes." In Commonwealth v. Maldonado, supra, the trial court denied credit for the 19 days spent in custody during the stay of execution, relying on the commonwealth's argument that the applicable statute, M.G.L. c. 279 ß33A, only allowed the awarding of credit for time spent "in confinement prior to such sentence awaiting and during trial." The Appeals Court stated that given that the statute by its language was not controlling, it would rely on "considerations of fairness and fair treatment of the defendant," Id. at 64 Mass. App. Ct. 251. The court said it would not take an "overly legalistic approach," citing Manning v. Supt. MCI-Norfolk, 372 Mass. at 394, and would apply the rule that would "remedy the injustice of a prisoner serving time for which he receives no credit," once again citing Manning, supra, especially since there was no danger that the defendant is getting double credit or "banking" credit. Maldonado, 64 Mass. App. Ct. at 251-2. The court said this case was similar to the situation regarding stays of execution for commitments to Bridgewater, see McLaughlin, supra, and that the same reasoning required the awarding of jail credits.
5. Does the Defendant Get Credit for Time Served Out of State Pending Rendition to Massachusetts?
The answer is "yes" if fairness so requires. It is also "yes" if the defendant was held pending rendition to Massachusetts and he or she immediately waives rendition. If the defendant delays the process by failing to waive rendition or frivolously contesting it, the answer is "no."
In Chalifoux v. Commissioner of Correction, 372 Mass. 387 (1977), a prisoner escaped while serving time in Massachusetts and was convicted of a new crime in California while on escape. The California court imposed a sentence to be served concurrently with his Massachusetts sentence. The court stated in the record its intent that the prisoner be released to Massachusetts authorities to return to serving his Massachusetts sentence. Massachusetts lodged a detainer with California authorities, but the Massachusetts Department of Correction informed California that it would refuse to take the prisoner into custody. They also told the prisoner he would not be returned to Massachusetts due to overcrowding. He was eventually paroled by California authorities to Massachusetts and sought credit toward his sentence for the time spent in California. The court said that in the absence of an applicable statute, it would be guided by principles of fairness. It focused on the fact that Massachusetts authorities did not inform the prisoner that his Massachusetts sentence was not running while he was in California. On that basis, it affirmed the award of credits to the prisoner from the time of his commitment in California to the date of his parole.
In Commonwealth v. Aquafresca, 11 Mass. App. Ct. 975 (1981), a defendant who had fled Massachusetts after indictment on several charges was picked up by Oregon authorities on a fugitive warrant from Massachusetts. He was apparently also being held by federal authorities pursuant to federal offenses for which he was indicted nine days after the commitment on the Massachusetts warrant. On what the court called "a very confused record," it concluded that had there been no other charges against the defendant besides those from Massachusetts, it would have taken the authorities 30 days to return him to Massachusetts. Therefore, based on considerations of fairness, it determined that 30 days of custody in Oregon should be deemed at least in part attributable to the Massachusetts warrant. In Commonwealth v. Boland, 43 Mass. App. Ct. 451 (1997), a defendant was held in Florida on both a Massachusetts fugitive warrant and pending Florida cases. The cases in Florida were dismissed and the defendant sought credit for the whole period he was held prior to his return to Massachusetts. The court said that the dismissal caused each of the Florida charges to be a nullity and therefore, fairness requires that the time be credited toward the Massachusetts sentence.
In Commonwealth v. Beauchamp, 413 Mass. 60 (1992), the defendant was held on a Massachusetts warrant in Illinois for an escape charge. The defendant filed unsuccessful state and federal habeas corpus petitions that delayed rendition by 1,574 days. After characterizing his filings as being "based on dubious assertions of fact or frivolous legal argument," Id. at 64, the court held that fairness did not require that he be awarded credit for time in custody awaiting return to Massachusetts. See also Commonwealth v. Barriere, 46 Mass. App. Ct. 286 (1999); Commonwealth v. Araujo, 41 Mass. App. Ct. 928 (1996). In Commonwealth v. Frias, 53 Mass. App. Ct. 488 (2002), the court said that any delay in waiving rendition caused by the defendant will result in the non-awarding of credit for the period of the delay.
6. If Bails Are Imposed In Two or More Cases Resulting In Concurrent Pretrial Confinement and the Defendant Receives Sentences on Both Cases, Which One Should Have the Jail Credits Applied?
This was the subject of a recent case before the Appeals Court. In Commonwealth v. Murphy, 63 Mass. App. Ct. 753 (2005), a defendant was sentenced to nine to 10 years in the state prison from Middlesex Superior Court. He subsequently received a concurrent sentence of three-and-a-half years to three-and-a-half years and a day from Suffolk Superior Court. Prior to disposition, he had been committed first to the Suffolk County Jail in lieu of bail. Subsequently, a bail mittimus was issued on the Middlesex cases, but he remained a Suffolk County detainee. When he was sentenced on the Suffolk cases, he requested no credit for time served. The court states that the defendant was seeking to have the time awaiting trial applied to his longer Middlesex sentence. The trial court in Middlesex denied the defendant's motion to correct the mittimus to reflect the credits. On appeal, the commonwealth opposed the defendant's request for jail credits and argued that the credits should be applied to the Suffolk sentences and that the pretrial time spent in Suffolk was not related to the Middlesex sentences. The court said that even though the defendant was awaiting trial in the Suffolk County Jail, he was actually being held on both cases. In ordering that the credits be applied to the longer Middlesex sentence, the court said that as a matter of fairness, the court that imposes the longer sentence is required to award the jail credits toward that sentence. Otherwise, the defendant does not benefit by having his discharge date on the longer sentence calculated to include the period of pretrial confinement. The court also said the defendant should receive credit toward the Suffolk cases for time spent solely on those cases prior to the issuance of the bail mittimus from Middlesex that was issued subsequent to his commitment to the Suffolk County Jail.
The answer to each of the questions analyzed above comes down to fairness and public policy. The defendant prevails when not awarding the credits would be unfair, would create an injustice, or comes from an overly technical interpretation of the applicable law.
The defendant's request for jail credits fails when it is the result of "banking" credit or is the result of an undue prolongation of custody due to frivolous actions on the defendant's part, such as needlessly contesting rendition. The bottom line is that courts have tremendous discretion to award jail credits if an argument can be made that it is the fairest outcome.