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August 23, 1971

James ROYSTER, Percy Rutherford and all other persons similarly situated, Plaintiffs,
Paul D. McGINNIS, Commissioner of Correction, et al., Defendants

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

Two New York State prisoners have brought this class action seeking a declaratory judgment that Section 230(3) of the New York Correction Law, McKinney's Consol. Laws, c. 43, under which their "good time" was computed, is unconstitutional and an injunction against the alleged discriminatory practices pursued by defendants in application of that statute.

Plaintiffs attack the constitutionality of the provision in § 230(3) which denies state prisoners good time credit for the period of their pre-sentence incarceration in county jail. They contend that the denial of such good time credit deprives them of equal protection in violation of the Fourteenth Amendment by discriminating against those prisoners who cannot afford or are not granted bail prior to trial and sentencing.

 This suit is brought under 42 U.S.C. § 1983 (the Civil Rights Act), with federal jurisdiction predicated on 28 U.S.C. § 1343(3). By opinion and order dated January 21, 1971, this court, having found that a substantial constitutional question had been raised, granted plaintiff's application to convene a three-judge court. Royster v. McGinnis, 327 F. Supp. 1318 (S.D.N.Y. 1971).

 Plaintiffs James Royster and Percy Rutherford are inmates of the Auburn and Ossining Correction Facilities, respectively. They bring this action on behalf of themselves and other state prisoners similarly situated who have served terms of incarceration in county jail prior to their transfer to state prison but have not received good time credit therefor. Royster, having been unable to post the requisite bail bond at the time of arrest, served one year, one month and nine days, or 404 days ("jail time"), in the Nassau County Jail prior to his transfer to state prison to serve consecutive five to ten year terms for burglary in the third degree and grand larceny in the first degree. Rutherford also failed to make bail and, as a result, spent eight months and two days, or 242 days ("jail time"), in the Nassau County Jail prior to his trial, sentencing, and receipt in state prison to serve concurrent terms of ten to twenty years for robbery in the first degree and two and one-half to five years for grand larceny in the second degree.

 Although plaintiffs did receive jail time credit against the terms of their sentences for the period of their county jail incarceration, *fn1" they did not receive, and under the provisions of § 230(3) were not entitled to receive, any good behavior time credit ("good time") for this period of detention served prior to transfer to state prison. Contending that they should have received good time credit for the jail time so served, plaintiffs now seek to compel defendants to recompute their "minimum release dates" (that is, the dates upon which they would first have the right to appear before the Parole Board). They point out, and it is not disputed, that were they to receive good time credit for time spent in county jail between arrest and sentence, they would be entitled to appear before the Parole Board several months (over four months, in Royster's case; nearly three months, in Rutherford's) earlier than they will under the computation required by § 230(3).

 There is no doubt that by its express wording Section 230 mandates the denial of good time credit for the time plaintiffs served in county jail awaiting trial and sentencing. Subsection 2 thereof provides that a state prisoner may receive, "for good conduct and efficient and willing performance of duties assigned, a reduction of his sentence not to exceed ten days for each month of the minimum term in the case of an indeterminate sentence * * *," *fn2" and subsection 3 states that "in the case of an indeterminate sentence prisoner said reduction shall be computed upon the minimum term of such sentence, less jail time allowance." (Emphasis added.) However, while jail time is excluded from the calculation of an indeterminate sentence prisoner's maximum good time allowance for purposes of determining his minimum release (or parole) date under § 230(3), it is not excluded from such computation when it comes to setting the same prisoner's "statutory release date" pursuant to subsection 4 of Section 230. The latter date is the earliest date on which an inmate must be paroled by the Parole Board and is arrived at by deducting a prisoner's total good time allowance (five days per month) from the maximum term of his indeterminate sentence. By contrast, the minimum release date signifies the earliest date on which an inmate may be paroled at the discretion of the Parole Board, and it is computed by deducting the prisoner's total good time credit (ten days per month) from the minimum term of his indeterminate sentence.

 It is significant that the New York courts *fn3" have construed § 230(4) (which, unlike § 230(3), does not contain the same explicit language denying good time credit for jail time) to require that good time credits earned thereunder be allowed not only for time served in state prison but also for presentence jail time. *fn4" Similarly, § 230(3) itself provides that in the case of prisoners confined in county penitentiaries, *fn5" as opposed to those confined in state prisons, good time reductions "shall be computed upon the term of the sentence as imposed by the court, including jail time allowance." (Emphasis added.)


 In the earlier opinion of the single district judge convening this three-judge court, Royster v. McGinnis, supra, the court determined that plaintiffs had stated a cognizable claim under the Civil Rights Act over which the court had jurisdiction, and that the complaint stated a claim upon which relief could be granted. In that opinion substantial reliance was placed, as it is here in the interest of judicial economy, on a prior decision of this court in the case of Phipps v. McGinnis, 327 F. Supp. 1 (S.D.N.Y. 1970), in which the precise question now before this three-judge court was presented. *fn6" In Phipps, as here, defendants claimed that the court lacked jurisdiction because plaintiff's suit, in effect, sought release from prison and, as such, attempted improperly to avoid the exhaustion requirements of 28 U.S.C. § 2254. At this point it need only be reemphasized that where a plaintiff seeks neither release from custody nor redress of alleged civil rights violations incurred in his state criminal proceedings, relief by way of habeas corpus is inappropriate. In the instant action, plaintiffs make no charge of unconstitutional detention resulting from illegalities in their state court trials. Nor is plaintiffs' complete or immediate liberty at stake, for even if plaintiffs were to secure earlier hearings before the Parole Board, the Board would still retain ultimate discretion to refuse them release on parole. *fn7"

 What is clearly at stake, however, is the possible deprivation to plaintiffs of rights secured to them by the Constitution, namely, their right to equal treatment under the law, guaranteed by the Fourteenth Amendment. The Civil Rights Act creates a cause of action precisely to relieve such a deprivation, Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and state prisoners fall clearly within its protection. Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961). Moreover, unlike the federal habeas corpus statute (28 U.S.C. § 2254), the Civil Rights Act, when properly relied upon for federal jurisdiction, does not require the exhaustion of state judicial remedies. Wright v. McMann, supra, 387 F.2d at 522-523. Thus, this court has jurisdiction of the issues raised by the complaint herein and may determine the merits.


 The burden of plaintiffs' complaint is that Section 230(3) of the Correction Law violates the Fourteenth Amendment because it denies equal protection of the law to those persons who cannot afford to obtain bail (or are not granted bail) between arrest and sentence and so must serve time in jail awaiting judgment. Plaintiffs argue that whereas those fortunate enough to obtain bail prior to sentence are rewarded with a full allowance of good time credit for the entire period which they ultimately spend in custody (in state prison), those defendants (indigents and otherwise) who are jailed between arrest and sentence because of their inability to furnish bail are denied good time credit for the time spent in county jail and must content themselves with the partial measure of credit allotted to them for the period of their state prison confinement alone. Such a difference in treatment between persons sentenced to state prison for like terms of imprisonment smacks of discrimination on its face.

 Thus, the real question, and indeed the only question, before the court is whether a rational basis exists for the distinction made by § 230(3) between jail and non-jail defendants in the awarding of good time credit. We find the requisite rationality lacking. It is true that the Equal Protection Clause requires only that "the State's action be rationally based and free from invidious discrimination." Dandridge v. Williams, 397 U.S. 471, 487, 90 S. Ct. 1153, 1162, 25 L. Ed. 2d 491 (1969). Indeed, even though a state's practice may be discriminatory and substantially harm those who are the subject of the discrimination, the practice may still be constitutionally permissible if it serves a valid governmental objective. Thus, for example, although the requirement of bail pending trial substantially discriminates against the indigent defendant, such a classification of "jail versus bail" is constitutionally sanctioned by the Eighth Amendment as a reasonable means for insuring a defendant's appearance in court. See, e.g., Morris ...

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