Sentencing credits reduce a criminal defendant's sentence either based on time spent in custody before a conviction or by earning credits for good behavior after a conviction.
What Is a Sentencing Credit?
A credit is a period of time, usually expressed in days, which will be subtracted from the sentence the defendant received for a conviction. A credit of four months, for example, will reduce a four-year sentence to a three-year and eight months sentence. Sentencing credits can arise or be earned before the conviction and after conviction, while the defendant is serving the sentence.
Often, you'll hear the phrase "credit for time served" when referring to pretrial and pre-conviction sentencing credits and "good time" credits for post-conviction credits.
This article explains pre- and post-conviction sentencing credits, when they apply or don't, and when they can be taken away.
Sentencing Credits for "Time Served"
Some defendants are able to bail out of jail (or be released on their own recognizance) on the day they’re arrested or very soon thereafter. But those who cannot afford bail or are not eligible for bail can end up spending many weeks or months in pretrial detention (jail).
Here’s the problem that this scenario sets up: Imagine two defendants who committed identical crimes, were convicted of the same offense, and received the same sentence. One bailed out as soon as he was arrested; the second had no funds for bail and spent two months in jail awaiting trial. The second defendant will end up with a longer period of incarceration (by two months), only because he could not afford bail.
Traditionally, courts did not take pre-conviction incarceration into account when sentencing convicted defendants, reasoning that there was no relationship between pretrial jail time and the punishment eventually meted out. But that view has changed in modern times.
Applying Pre-Conviction Sentencing Credit
Many legislatures and courts have viewed the outcome described in the above example as discriminatory. Statutes in many states require that judges give credit to the second defendant for time already served in jail towards the sentence imposed for the crime (in our example, the court judgment will specify that two months should be deducted from the sentence). And in some states, even in the absence of a statute, a court can decide on its own that credits are in order.
Courts are most likely to give credit for time served (even in the absence of a statute) when:
- the defendant remained in custody due to an inability to make bail (as opposed to a no-bail situation), and
- the court has imposed the maximum sentence allowed for the crime.
When these conditions are met, failing to give credit for time already served would result in the defendant spending more time than allowed by law for the offense.
A defendant confined to a juvenile institution, or in the custody of a halfway house or mental health institution, may also obtain credit in some states. If a judge orders probation that includes a short jail stay, that time spent in custody might also count as time served in cases where the defendant's probation is later revoked.
The rule for persons convicted of federal crimes is refreshingly clear. Defendants are given credit for time served pre-conviction, as long as that credit has not been applied to another sentence. (18 U.S.C. § 3585.)
Withholding Pre-Conviction Sentencing Credit
Although the modern trend is to give credit for pre-conviction incarceration, courts in some states retain the ability to withhold it (for example, when the defendant is a repeat offender). Some states presume that the sentencing judge will have taken the presentence custody time into consideration when deciding on the eventual sentence, thereby “giving credit” in an indirect (though hardly transparent) way.
Sentencing Credits for “Good Time”
Defendants sentenced to prison almost never end up serving the sentence that was announced by the sentencing judge. Not only do many of them get credit “for time served” if they spent time in pretrial custody, but they also earn time off for good behavior while in prison.
Earning Good Time
The amount of “good time” that prisoners may earn varies by state. To earn good time, the prisoner usually must have a discipline-free record. Attending counseling and educational programs, attaining certain goals, or working prison jobs may also contribute to earned good time. Prison officials generally decide whether an inmate achieved their goals or complied with disciplinary rules.
States use a variety of names for these types of credits. Some examples include good time, earned time, and conduct compliance credits. The amount of time earned will be determined by statute and prison rules. For instance, a statute might cap the amount of good time a prisoner can earn each month or restrict who can earn good time.
Losing Good Time
A prisoner who dutifully follows prison rules and earns good time credits might not necessarily see their ultimate sentence reduced. Those credits may be lost through changes in the law or by subsequent misbehavior by the prisoner.
- Legal changes. In some states, if the credit-earning statute changes, the prisoner’s tally may change, too. In other words, the credits don’t vest until they are actually applied and the prisoner is released. Other states give the prisoner the benefit of the good-time statute that applied when the prisoner was sentenced.
- Practical changes. Prisoners can lose their credits by failing to follow prison rules, particularly if they commit another crime while incarcerated (most notably, escaping or attempting to do so). In some states, violating parole can result in the forfeiture of good time credits (the parolee will be returned to prison to serve the balance of his sentence, without deductions for previously earned good time).
Contesting the Loss of Good Time
Prisoners whose good-time credits have been removed or forfeited by prison authorities are not without some due process rights, though these rights don't rise to the level of those accused of a crime. To begin, a statute’s procedure governing the revocation of rights must be followed. Then, at a minimum:
- The prisoner must be given written notice of the claimed violation.
- The authorities must provide a written statement of the facts that support the revocation.
- The prisoner is entitled to a hearing, where he has the right to call witnesses and present documentary evidence, as long as doing so would not be overly hazardous to prison safety or legitimate correctional goals.
However, prisoners do not have a constitutional right to counsel, nor to confronting and cross-examining adverse witnesses. (Wolff v. McDonnell, 418 U.S. 539 (1974).) The authorities may revoke credits if there is “some evidence in the record,” or “any evidence,” or “some basis in fact” to support their decision—a standard quite far below the “beyond a reasonable doubt” standard for criminal convictions. (Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445 (1985).)
Some state statutes give prisoners the right to a judicial review of good-time revocations, but generally, the only issue that can be raised is whether the prisoner’s due process rights were honored.
Questions for Your Attorney
If you have questions regarding your sentence and how it was calculated, including whether you received accurate credit for time served, talk to your attorney. An inmate serving a prison sentence may also want to consult with an attorney regarding possibly contesting the loss of any good-time credits.