Common Misconception about pre-trial custody or "Dead Time"

Photo by Sklathill

When someone does not get bail when they are charged with a crime, they are ordered by the judge to be detained in custody. For every day spent in pre-trial custody the accused will usually be given credit for his/her days in custody at a rate of 1.5 for every one day spent in custody. For example, if the person spends 60 days in pre-trial custody, they will be given credit of 90 days toward whatever the ultimate sentence is for their crime.

Many inmates think that they will spend less total time in jail if they delay their sentencing so they are able to “rack up” on their 1.5 for 1 pre-trial credit to put towards their ultimate sentence. This is an error. Here is why.

When someone gets sentenced to a jail term of anything less than 2 years, they serve their sentence in a provincial jail, as opposed to a federal penitentiary. Offenders who get a provincial jail sentence almost ALWAYS get released after serving only two-thirds of their total time. In other words, a person who is sentenced to 6 months in jail will almost ALWAYS get released after 4 months. In fact, in my career I have never heard of any offender not being released from jail after serving two-thirds. It seems to be almost automatic that the offender will be released after two-thirds of their time is served.

The way the math works is always the same. Consider, for example, a person who has a 6 month sentence. For ease of calculation we will turn this into days. Thirty days per month times 6 months (30 days per month x 6 months) is a sentence of 180 days. A person who gets bail immediately and who is sentenced to 180 days will be released after serving two-thirds of that sentence, as a result he will be released after serving 120 days (two thirds of 180).

On the contrary, an offender that did not get bail immediately and instead “racked up” on 60 days of pre-trial custody before he was released on bail and gets sentenced to 180 days will get 1.5 credit for his 60 pre-trial days for a total of 90 days credit (60 REAL days in jail x 1.5). This means that from the 180 day sentence he will be credited for 90 days and in addition he will have another 90 days left to serve. He will then have only two-thirds of that remaining 90 days because he will also get released after serving two thirds of his remaining sentence. What is two-thirds of 90? The answer is 60 days. You add that 60 days that this offender has to serve to the 60 REAL days in jail he spent in pre-trial custody, the offender will serve a total of 120 REAL days in jail. This is exactly the same as the offender who did not spend a single day in pre-trial custody.

The way the numbers work is always the same. You can try it with a 200 day sentence, a 300 day sentence, or a 15 day sentence it will always work out the same: the offender that did not do a day in pre-trial custody will spend an equal amount of REAL days in jail as the offender who “racked up” a significant amount of pre-trial custody days that get credited at 1.5 for 1.

To be clear, it is still very important for people who do not make bail to ask for and be credited with 1.5 credit for each pre-trial day spent in custody. This ensures that they do not spend any more REAL days in jail than the person who got bail immediately. This would happen if the offender was not credited at 1.5 for 1 for his pre-trial days.

However, do not think that you are being smart or shrewd by delaying your sentencing so you can spend another month or two in pre-trial custody in the hopes that it will significantly lessen the amount of REAL days you spend in jail. In fact, by doing this you will not spend any less real time in jail than the person who did not spend a day in pre-trial custody.

By doing this you risk actually spending more real days in jail in the event that the sentencing judge ultimately gives you a sentence less than the total time you get credited for your pre-trial custody. For instance, if an offender gets a 90 day sentence but spent 70 days in pre-trial custody they would get credit at 1.5 for 105 days (1.5 x 70), whic is more than enough to satisfy the 90 day sentence. As a result, the offender would be released immediately after the sentencing. On the other hand, the offender who gets sentenced to 90 days and got bail immediately would serve 60 days total in prison before release (remember everyone tends to get out after 2/3 of their sentence and 2/3 of 90 is 60). So in this example, the guy who got bail only spent 60 days total in real jail but the offender who “racked up” pre-trial custody days would be out after 70 real days, 10 days longer total in jail than the offender who got bail.