If a defendant is arrested on Monday, detained all week, and sentenced on Friday, how many days of jail credit does he get?
It’s either four or five, right? Five if you subscribe to the theory that any portion of a day is a day for credit purposes. Four if you consider that the first day of confinement isn’t actually complete until the second calendar day, or perhaps if you figure that the sentence begins on the day it is imposed (Friday), and so that day shouldn’t get counted twice, once for jail credit and again as the first day of the sentence.
What does the law say?
Let’s start with the principal jail credit statute, which says that credit “shall be calculated from the date custody under the charge commenced . . . .” G.S. 15-196.1 (emphasis added). That suggests Monday counts for credit.
G.S. 15A-1353(a) says that, in general, “the date of the order [of commitment] is the date service of the sentence is to begin.” That suggests Friday doesn’t count for jail credit, because it is day one of the post-conviction sentence. The Division of Adult Correction (DAC) in fact treats the day of sentencing as day one. (Interestingly, DAC does not release a person until the day after a sentence is fully served, with the release date itself not counted as part of the sentence.)
Great! Sounds like the jail credit calculation rule should be count the first day of pretrial confinement and exclude the last.
Enter State v. Richardson, 295 N.C. 309 (1978). In Richardson, a defendant arrested May 4, 1977 and sentenced on October 6, 1977 was awarded 154 days of jail credit. The supreme court said the trial judge erred, because the “time from 4 May to 6 October is computed by excluding the first day and including the last.” Id. at 319. Applying that rule, the high court said the defendant should have been awarded 155 days, not 154.
The Richardson rule is sort of the opposite of the rule derived from the statutes cited above (count the first day and exclude the last), but of course it gets you to the same place. The point is you apparently do not count both the first and last days, because if you did in Richardson’s case, you’d tally—trust me—156 days. (If you don’t believe me, you can (a) count the days on a wall calendar; (b) do some simple math using a Julian date calendar, which is what I used for various tasks when I was in the military; or (c) use a website like timeanddate.com, which allows you the option of including the start and end dates in any calculation. Many mobile apps and good old Microsoft Excel would also do the trick.)
Either approach would seem to get you to four days of credit in the Monday–Friday scenario described at the outset. It’s possible, though, to find authority pointing in different directions. For example, in a case decided just a few weeks ago, the court of appeals appeared to sanction a counting rule that included both the first and last days of a pretrial confinement period. State v. Patin, __ N.C. App. __, 2015 WL 1800447 (N.C. Ct. App. Apr. 21, 2015) (unpublished) (tabulating a period from March 18, 2011 to July 31, 2011 as 136 days, when it would be 135 if you excluded either the first or last day). The jail fee statute takes yet another approach, measuring the fee in increments of 24 hours “or fraction thereof,” raising the possibility that a convicted defendant might have to pay the $10 cost for a fractional day for which he or she did not actually receive jail credit. G.S. 7A-313.
Finally, whatever rule you apply in run-of-the-mill case must be modified for defendants convicted of impaired driving or concealment of merchandise. The statutes governing those crimes (G.S. 20-179(p) and 14-72.1(g), respectively) say “the judge may not give credit to the defendant for the first 24 hours of time spent in incarceration pending trial.” I get it (sort of) for drunk drivers, but I’m not sure why shoplifters shouldn’t get credit for their first 24 hours behind bars. Regardless, that is what the law says.
This is one of those questions that makes a relatively small difference for any individual defendant (not to make light of a day’s worth of liberty deprived), but which is a big deal in the aggregate. The most troubling thing about it may be that different districts appear to use different rules. I’m inclined to say that the defendant confined from Monday to Friday would be entitled to four days of jail credit, unless he was confined for a DWI or shoplifting, in which case I would say three. Ultimately, “the judge presiding shall determine the credits to which the defendant is entitled,” G.S. 15-196.4 (emphasis added), and reasonable judges might view the issue differently.
I reached out to DAC, a few jails, and some folks from the court system in preparing this post, and their thoughts were very helpful. I would very much appreciate your comments about how this issue plays out in practice in your part of the state. Thank you!
You said that DAC treats the day of sentencing as the first day of post-conviction incarceration. Does that mean, pursuant to Richardson, the defendant gets credit twice for the day of sentencing? If not, then Richardson and the alternative method do not come to the same result because the defendant has lost credit for his first day in jail awaiting sentencing.