Time Served (pre-conviction)

Factual Questions
1

It seems pretty routine for defendants who have been convicted to get credit off their sentence for time served prior to conviction. Two questions:

  1. Is this required or is it up to the discretion of the individual judge? I imagine to the extent that the judge has complete leeway in deciding the length of the sentence, the question is moot, since the judge can just take that into account in deciding how long he wants the guy to actually serve. But it’s relevant in situations where the judge is required to follow sentencing guidelines or justify departures from the guidelines. Is it automatic that defendant gets credit for time served, or can the judges do what they want?

  2. What about people who are not incarcerated prior to conviction but are subject to house arrest (or similar)? Some of these are pretty restrictive in their own right, e.g. not allowed to leave the house unless to meet with the lawyers. If such a person is subsequently convicted, does the house arrest count as anything towards their sentence? If it does, it sounds like a pretty good deal. But if it doesn’t, then a defendant who gets convicted essentially lost a gamble, having to serve the complete sentence and plus the house arrest period on top of that.

2

I can only talk about the English legal system…

In England (and Wales and probably Scotland too) any time spent on remand (unless they are also serving another custodial sentence, which is not uncommon) prior to sentence will count as time served towards a custodial sentence, this is mandatory with no judicial discretion. If the defendant defendnat subsequently gets a non-custodial sentence (rare, but not unheard of), time served can be taken in to account.

Someone who is subject to an electronically monitored curfew as part of their bail conditions will have this into account if they are subsequently given a custodial sentence, again this is mandatory. (I think the formula is something like they get a half-day served for every day on bail if their curfew is over 8 hours).

3

Canada used to have a 1.5:1 ratio - time spent in custody before trial counted as overtime towards any sentence. The original logic was simple - the courts were taking (are taking) way too long. We have a constitutional right to a speedy trial, and 2 years is way too long. The side-effect was predictable - any perp who knew he was going to jail, their lawyer would stall as long as possible. A guy sentenced to 10 years and waited 2 years for his trial gets credit for 3 years, and so was eligible for parole (1/3 of his sentence) in a few months after sentencing.

Recently this is changed to 1:1. Not sure what you are asking - why would time in jail not count as time in jail? I suppose the judge could stretch the sentence a bit to make the guy serve more time, but they can do that anyway - and anything too far beyond “normal” for the crime will result in an appeal. Of course in some cases the remand center is a nicer environment than the penitentiary, so thi is also an incentive to stetch things out.

The problem is our justice system is too busy to actually produce timely justice and speedy trials. Perps know they can count on a year or two, often out free, before they have to face the music. Meanwhile, they have time to do whatever else they do.

As for time out - I have not heard of this being taken into consideration but IANAL and I do not know for sure. If the guy was allowed to go to work and back (assuming he had a job) and so live a relatively normal but confined life - make money, watch TV, sleep in his own bed, order/make whatever food he wants, live with his family and have friends without convictions over - you’d be hard-pressed to argue it’s the same hardship as jail.

4

What kind of credit do you get for time served before acquittal?

5

Nothing, because if you’re acquitted, you’re not sentenced and then there’s nothing for it to count towards.

6

In Texas, you can be given credit for your jail time prior to pleading (or “back time”) as part of your plea agreement, or it can be up to the judge to give you credit or not if the DA doesn’t care one way or the other. It’s pretty routine to be given credit for your back time unless you’ve seriously PO’d somebody. The only time I can think of that it’s required off of the top of my head is if a defendant had to served some jail time as a condition of probation and later gets revoked.

7

In Illinois* credit against a sentence of imprisonment for each day spent in pre-sentencing detention is mandatory by statute. To use md2000’s terminology, it’s a 1:1 credit. Because the credit is a statutory requirement, a defendant whose credit was improperly computed may raise the issue at any time, even years later, and (if he or she is correct) must receive an adjustment.

The issue of home monitoring and the like is very interesting and somewhat complicated in Illinois, having been decided by the state supreme court interpreting the credit statute. A defendant released on bond with a bond condition of home monitoring or periodic physical reporting is not in custody and not due credit at sentencing. A defendant not on bond who the sheriff decides to release from jail on condition of reporting in person or home monitoring is in custody and due credit. The difference is that bond can’t be revoked without a court hearing but the sheriff can revoke a wholly discretionary conditional release at any time for no reason.

As to sentencing guidelines (“the extent that the judge has complete leeway in deciding the length of the sentence”), Illinois criminal law sets sentencing ranges for offenses, with six classes of felonies, three classes of misdemeanors, and petty offenses. For example: armed robbery is a Class X felony, and Class X felonies get 6 to 30 years’ imprisonment. Burglary is a Class 2 felony, and Class 2 felonies get 3 to 7 years’ imprisonment. First degree murder is in a class by itself (Class M) and gets 20 to 60 years’ imprisonment.

There are extended terms for each of the classes (for example, an extended Class 2 is 7 to 14 years’ imprisonment, and an extended first degree murder is life imprisonment or death) based on a statutory list of factors, including prior felony convictions of the same or greater class in the last 10 years, that the crime was exceptionally brutal or heinous, and that the victim was under 12, over 60, or handicapped. However, except when the extending fact is prior convictions, the jury (in a jury trial) must find the extending fact for the judge to apply an extended term sentence.

These ranges of prison terms don’t mean that probation, or similar dispositions like conditional discharge and supervision, are unavailable, they just mean that if a judge doesn’t sentence a particular defendant to probation or the like, the prison sentence must be in that range. Certain offenses are by statute ineligible for probation and the like, including first degree murder, attempted first degree murder, and all Class X felonies.

To make a long story short, an Illinois judge has a sentencing range that comes with the offense but then gives a particular sentence within that range of pretty much whatever he or she feels is appropriate.
*The only state I feel comfortable answering for, as I’m an attorney only in Illinois. Of course, I’m not your attorney, “you” being anyone reading this post. :slight_smile:

8

Wasn’t it 2:1? In any case, the reason you give for this ratio is likely right, but I think I remember hearing that it was also because people imprisoned while awaiting trial have less rights and less access to services than people serving a sentence. (Sorry, I don’t know the exact terms in English for these two categories of prisoner.) So they serve “harsher” time before their trial, and it made sense for it to count for more.

9

In England prisoners sderving their sentences are called “serving prisoners”, those who have been remanded in to custody pending trial/sentence are said to be “on remand”.

I don’t know about Canada, but the opposite is true in England. Prisoners on remand have more visitation rights than serving prisoners and can wear their own clothes. Even though the ratio is 1:1, defendants with a high expectation of a custodial sentence may even ask to be remanded in to custody as it’s seen as ‘softer time’ due to the extra rights they have.

10

What about a subsequent charge? Say I get charged with a crime, am held on remand for a year, and am then acquitted and released. Five years later I’m charged with a different crime and convicted. Can I get a year off my sentence for the time I spent in remand for the first charge?

11

Wouldn’t even enter the equation in England and I imagine that’s the same for just about every jurisdiciton

Think of it this way: if you release somone from remand with a ‘get out of jail free card’ that they can redeem against a years worth of custodial sentence then they could just go and commit a crime such as they would expect to get a year or less custodialn sentence with no effective legal sanction.

12

Actually, Illinois law allows a carryover of credit under very limited circumstances: “An offender arrested on one charge and prosecuted on another charge for conduct which occurred prior to his arrest shall be given credit *** for time spent in custody under the former charge not credited against another sentence.”

The requirement that the second charge be for conduct preceding the arrest on the first charge presumably avoids the “get out of jail free” effect posited by These are my own pants.

13

As someone else said, I thought (and in fact am fairly sure) that it was a 2:1 ratio. As well, cite for remand centres being nicer environments than penitentiary?? I guess I shouldn’t ask for a cite since I don’t have one either, but everything I have heard about remand centres is that they are a **much **poorer environment than a penitentiary, which is one of the big reasons for the 2:1 credit. I have heard it in particular about the Edmonton Remand Centre, but I doubt that that one is special.

14

Seems unfair, doesn’t it? We give convicted criminals a benefit that we deny to innocent people.

15

In Virginia, it’s a statutory requirement: Va Code § 53.1-187 provides that all time spent in pre-trial confinement is deducted from the sentence imposed after a guilty verdict.

No.

There are actually a couple of different scenarios here:

  1. Convicted, appeal, conviction overturned, retried on same crime, convicted again: The inmate is required to get credit for all time served.

  2. Convicted on multiple charges, sentenced to consecutive terms, appeal, one conviction overturned and not retried: time served must be credited to remaining sentences.

  3. (Your scenario) Convicted, appeal, conviction overturned, not retried, walks free, commits new crime, arrested, convicted. No credit for time previously served.

(At least in the Fourth Circuit and in Virginia).

16

I spoke to a person I know who is friends with one of these big time con artists and ponzi schemers, and I put the question to him. His pal is almost certain to be convicted, so why is he fighting so hard for house arrest? And he said it’s primarily about the type of jail.

When a white collar convict like this gets convicted, he generally gets sent to one of these “country club” jails. The accommodations are nicer there, but more important, most or all of the other inmates are fellow white collar criminals like himself, who are relatively harmless. By contrast, when held in jail pre-conviction, he is in a regular jail, and mixed with the general population, which is dominated by hard-core violent criminals. It’s a huge difference and it’s worth the likelihood of extra total confinement time to avoid it.