Revisiting Jail Credit for Multiple Offenses

From the May 2023 Criminal Defense Newsletter
Efforts to secure jail credit can lead to mutters and clenched teeth when a defense attorney tries, without success, to secure credit for a client’s pre-trial confinement in a situation where the defendant has been arrested on multiple charges. Attorneys logically assume their client will receive credit for all pre-trial confinement due to an inability to post bond, but that assumption does not necessarily hold true when there are different sentencing dates.

Many have been surprised to learn of the decision in People v Givans, 227 Mich 113 (1997), where the Court of Appeals held that a defendant is not entitled to credit for all pre-trial confinement served for multiple offenses once the defendant has been sentenced on at least one offense. The Court’s reasoning was straightforward: After the first sentencing date, “defendant was incarcerated not for the charges in the present case, but for the [new sentence].” Id. at 126.

The rule in Givans did not spring from thin air, however. Starting in 1985, and again in 1989 and 2009, the Michigan Supreme Court issued several decisions that narrowly interpreted the jail credit statute, MCL 769.11b. Those decisions might be summarized as follows: a defendant who faces multiple charges and is held in jail for different reasons is entitled to credit for only one reason. Using this approach, the Supreme Court has denied credit (1) where a defendant was arrested, posted bond, and then returned to jail on a new offense (no credit granted against the first offense once bond was posted), People v Prieskorn, 424 Mich 327 (1985); (2) where defendant was incarcerated in another state for out of state charges and argued there was a hold or could have been a hold filed against him with reference to a pending Michigan charge (no credit from the time a hold was placed or could have been placed), People v Adkins, 433 Mich 732 (1989); and (3) where the defendant was held in jail for a new offense as well as violating parole (credit goes to the parole violation only), People v Idziak, 484 Mich 549 (2009). In at least two of the cases, the Supreme Court placed emphasis on one part of the statutory language found within MCL 769.11b: the defendant’s inability to post bond “for the offense of which he is convicted.” People v Prieskorn, 424 Mich at 341; People v Adkins, 433 Mich at 742.

In Givans, the Court of Appeals took this language and extended it so that a defendant who is arrested for multiple offenses and does not post bond at all stops accruing credit once one charge results in sentencing. From that point forward, at least according to the Court, the defendant is being held in jail due to the new sentence and not due to an inability to post bond for other charges. People v Givans, supra.

For many defendants, the Givans decision results in a basic unfairness: Those who are unable to post bond and will serve concurrent sentences are denied credit for a portion of their pre-trial confinement.

Are there ways to work around this?

There may be at least two ways to approach this, with the first addressing statutory construction. The jail credit statute does not refer to confinement based solely on being denied or unable to post bond for the offense of conviction, something the Supreme Court did not expressly contemplate. Instead, the statute speaks to credit for “any time in jail” that is served due to being denied or unable to furnish bond:

Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing. [MCL 769.11b.]

The Supreme Court’s earlier decisions may be misguided when they focused on credit for one and only one reason. An alternative reading of the statute would place emphasis on the right to credit for “any time” served in jail prior to sentencing because of being denied or unable to furnish bond for the conviction offense (assuming concurrent sentencing). It should not matter that the defendant is simultaneously held for an unrelated sentence.

Law reform arguments are notoriously difficult to win, of course, and that may make the second argument a more practical one. According to the Supreme Court in the earlier Adkins decision, nothing prevents a trial judge from adjusting the length of sentence to reflect pre-trial confinement that is not credited to the defendant:

Our opinion today, however, must not be seen as in any way prohibiting a sentencing judge from granting sentence credit for time served for an unrelated offense should it be decided such credit is warranted. The trial court's sentencing discretion under our indeterminate sentencing law, M.C.L. § 769.1; M.S.A. § 28.1072, clearly would permit reducing a defendant's minimum sentence should the court think such action appropriate.  [433 Mich at 751 n 10; emphasis in original.]

This footnote from Adkins may have been added to allay concerns about the basic unfairness of denying credit where a defendant posts bond, is subsequently held for charges committed in another jurisdiction, and credit is denied from that point forward. But luckily the footnote does not include limiting facts or conditions and may be more encompassing. It can be used to address any situation where there are multiple charges and a denial of credit would appear unjust.

Times change, and this may be the time to argue for a different interpretation of MCL 769.11b. But if nothing else, defense attorneys may wish to rely on the Adkins footnote. When the Supreme Court throws a bone on jail credit . . . it would be a shame not to make use of it.

Anne Yantus
Michigan Sentencing PLLC
Copyright Anne Yantus 2023

Anne Yantus is a sentencing consultant who works with attorneys to promote more favorable sentencing outcomes. Anne credits her knowledge of Michigan sen¬tencing law to the many years she spent handling plea and sentencing appeals with the State Appellate Defender Office. Following her time with SADO, Anne taught a criminal sentencing course at University of Detroit Mercy School of Law and subsequently continued to write and speak on felony sentencing law while serving as pro bono counsel with Bodman PLC. Anne welcomes your Michigan felony sentencing questions and is happy to arrange a consultation where appropirate. Due to the volume of inquiries, the author is not able to respond to pro bono requests for assistance or analysis of individual fact situations.