Petition of Fogle

• Decision Date: 02 November 1995
• Docket Number: No. 62191-8,62191-8
• Court: Washington Supreme Court
• Parties: , 64 USLW 2336 In the Matter of the Personal Restraint Petition of James N. FOGLE, Petitioner. In the Matter of the Personal Restraint Petition of Donald D. MacFARLANE, Petitioner.

Page 56

128 Wn.2d 56

904 P.2d 722, 64 USLW 2336

In the Matter of the Personal Restraint Petition of James N. FOGLE, Petitioner In the Matter of the Personal Restraint Petition of Donald D. MacFARLANE, Petitioner.

No. 62191-8.

Supreme Court of Washington En Banc.

Nov. 2, 1995.

James N. Fogle, Steilacoom, Pro Se.

Nielsen & Acosta, Eric Nielsen, Seattle, Suzanne L. Elliott, Rita Griffith, Washington Appellate Defenders, Seattle, for Petitioner.

John Ladenburg, Pierce County Prosecutor, Barbara Corey-Boulet, Deputy, Mark VonWahlde, Deputy, Tacoma, Arthur D. Curtis, Clark County Prosecutor, Richard Melnick, Deputy, Vancouver, Christine O. Gregoire, Attorney General, Donna H. Mullen, Asst., Thomas J. Young, Asst., Olympia, for Respondent.

DOLLIVER, Justice.

Following this court's decision in In re Mota, 114 Wash.2d 465, 472, 788 P.2d 538 (1990), holding the Department of Corrections' (DOC) denial of earned early release credit to presentence detainees in county jails violated equal protection, the Legislature amended the sentencing statute to authorize the county jails to establish earned early release credit policies. RCW 9.94A.150(1). Now we are asked to review the constitutionality of those county jail policies: presentence detainees receive earned early release credit, but less than that available under DOC policy. We hold county jail policies setting a maximum earned early release credit lower than the DOC policy are statutorily and constitutionally permissible.

As mandated by Mota, the Legislature requires all prisoners, including those in presentence detention, be eligible for earned early release credit whether held in a DOC facility or a county jail:

Except as otherwise provided for in subsection (2) of this section, the term of the sentence of an offender committed to a correctional facility operated by the department, may be reduced by earned early release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined. The earned early release time shall be for good behavior and good performance, as determined by the correctional agency having jurisdiction. The correctional agency shall not credit the offender with earned early release credits in advance of the offender actually earning the credits. Any program established pursuant to this section shall allow an offender to earn early release credits for presentence incarceration. If an offender is transferred from a county jail to the department of corrections, the county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned early release time. In the case of an offender convicted of a serious violent offense or a sex offense that is a class A felony committed on or after July 1, 1990, the aggregate earned early release time may not exceed fifteen percent of the sentence. In no other case shall the aggregate earned early release time exceed one-third of the total sentence[.]

RCW 9.94A.150(1).

Pursuant to RCW 9.94A.150(1), the DOC and the county jails have developed the independent credit policies at issue here. The DOC's earned early release credit system, also known as "good-time", consists of two types of credit: good-conduct time and earned time. A prisoner in a state facility earns "good-conduct time" by good behavior at 10 days per 30 days served; generally, the prisoner is presumed to have earned the full good-conduct time available unless the facility specifically deducts for misbehavior. In re Cromeenes, 72 Wash.App. 353, 355, 864 P.2d 423 (1993). The DOC will award an additional 5 days per 30 days served in "earned time" for participation in work, academic, or treatment programs. Cromeenes, 72 Wash.App at 355, 864 P.2d 423; RCW 9.95.070. The DOC then combines the total good-conduct and earned time, up to one-half of the days served, to determine the final sentence reduction, up to the statutory maximum of one-third of the imposed sentence. In re Williams, 121 Wash.2d 655, 659, 853 P.2d 444 (1993); Cromeenes, 72 Wash.App. at 355, 864 P.2d 423; RCW 9.94A.150(1).

A prisoner denied or unable to pay bail will spend presentence detention in a county jail and then transfer to a DOC facility upon sentencing. In that case, the DOC will reduce the prisoner's sentence not only for earned early release credit accumulated at the DOC facility, but also for day-for-day credit and earned early release credit earned in presentence detention. Williams, 121 Wash.2d at 658-59, 853 P.2d 444; State v. Phelan, 100 Wash.2d 508, 517, 671 P.2d 1212 (1983). Defendant James N. Fogle spent 102 days of presentence detention in the Pierce County Jail on a 60-month sentence, earning 15 days earned early release credit. Defendant Donald D. MacFarlane spent 144 presentence days in the Clark County Jail on concurrent sentences of 72 and 8 months, earning 21 earned early release credit days.

Like the DOC, the Clark and Pierce County Jails use tiered credit systems. The jails' version of good-conduct time is known as "good time", the base award available to all general population prisoners at a maximum 15 percent of the imposed sentence; the jail will deduct any misconduct from that credit. Comparable to the DOC's earned time, the jails' policies permit prisoners to receive additional credit through work programs to achieve a maximum earned early release credit of 30 percent of the imposed sentence at Clark County Jail and 20 percent or 30 percent at Pierce County Jail. Both Fogle and MacFarlane received the maximum 15 percent credit as general population prisoners.

Defendants filed separate personal restraint petitions in the Court of Appeals attacking the county jails' earned early release policies. Denying an equal protection challenge the Court of Appeals granted Fogle's petition in part on the basis that the Pierce County Jail inaccurately calculated his credit and ordered readjustment to 17 days. This court granted Fogle direct discretionary review and certified MacFarlane's petition, consolidating the cases on review.

Defendants focus on two features of the county jail policies: the denial of the full statutory maximum and the exclusion of most prisoners from the higher credit work programs. Defendants claim the county jails have exceeded their statutory authority by formulating these policies. At the heart of this case, Defendants raise an equal protection challenge against the disparate treatment of presentence detainees. In addition, Defendants claim the policies violate double jeopardy and due process.

I. Statutory Authority for Earned Early Release Credit

Defendants argue RCW 9.94A.150(1) mandates all earned early release credit programs allow every prisoner, except those explicitly excluded as violent or sex offenders, to earn the full statutory maximum credit. Defendants' argument runs contrary to this court's decision in In re Williams, supra, and the Legislature's intent for independent, plenary county jail authority over earned early release policies. See Williams, 121 Wash.2d at 666, 853 P.2d 444.

As here, Williams considered an equal protection challenge to a county jail's certification of less than the statutory maximum for a presentence detainee. Without reaching the equal protection issue, Williams rested on the issue of statutory authority to hold prisoners do not have "a right ... to challenge their [jail] certifications merely because they were not awarded the statutorily permitted maximum amount of good time." Williams, 121 Wash.2d at 666, 853 P.2d 444. Nor does the statute create a right to a specific method of calculation.

We also reject Defendants' interpretation of RCW 9.94A.150(1) as requiring that jails permit all prisoners access to work programs. The clause describing "good behavior and good performance" merely indicates the factors for awarding credit within the provision's overall grant of authority to facilities to create independent policies. Williams, 121 Wash.2d at 661, 853 P.2d 444. We hold the Clark and Pierce County Jails' policies are consistent with the grant of authority in RCW 9.94A.150(1).

II. Equal Protection Analysis

"Equal protection requires that persons similarly situated receive like treatment." Mota, 114 Wash.2d at 473, 788 P.2d 538. Defendants assert the Clark and Pierce County Jails' earned early release policies violate prisoners' equal protection rights under the state and federal constitutions by awarding most prisoners, particularly presentence detainees, only 15 percent credit. Defendants claim the jails' policies result in longer sentences for presentence detainees than for prisoners spending their entire sentences in a DOC facility.

1. Level of Scrutiny

Equal protection analysis generally applies the rational basis test: whether the policy is rationally related to a legitimate state purpose. Mota, 114 Wash.2d at 475, 788 P.2d 538. In Mota, however, this court utilized intermediate scrutiny, holding the state failed to assert a substantial interest in denying presentence detainees any earned early release credit. Mota, 114 Wash.2d at 473, 788 P.2d 538. Defendants urge the court to adopt an intermediate scrutiny standard here.

Intermediate scrutiny is appropriate only where the denial of a liberty interest is due to a semi-suspect classification. Mota, 114 Wash.2d at 474, 788 P.2d 538. The Mota court reasoned the DOC's failure to award good-time credit under the former RCW 9.94A.150(1) to a presentence detainee financially unable to post bail represented discrimination on the basis of wealth. Mota, 114 Wash.2d at 474, 788 P.2d 538. Following Mota, the Court of Appeals has applied rational basis to an equal protection challenge to disparate earned early release policies where the presentence detainee was held without bail: indigency did not serve as the basis for the disparate treatment. Cromeenes, 72 Wash.App. at 357, 864...