Every Day Matters:  What constitutes “a day” for jail credit purposes?

By: Attorney David E. Saperstein & Law Clerk Sarah E. Schuchardt

Phone: 608-257-0945

Email: dsaperstein@hbslawfirm.com

One of the more inconsistent practices of circuit courts in criminal sentencing hearings over the years has been the calculation of jail credit earned by a defendant prior to the sentencing hearing.  Depending on the jurisdiction, or even sometimes the particular judge presiding over the case, courts have awarded “a day” of jail crediti for a variety of portions or increments of a 24-hour period.  For instance, some courts had a “policy” not to award a day of credit unless the defendant spent at least twelve hours in jail.  Others would award a day of credit for only six hours in custody.  Still others would grant a day of credit if the defendant spent “the night” in jail (whatever that means).

This inconsistency made it difficult for defense attorneys to give their clients an accurate calculation of how much jail time they had remaining, and made it more difficult for those being sentenced to predict what their projected release date would be.  The harsher (and common) policy of many courts, of not granting a day of credit unless twelve or more hours had been spent in jail, left many defendants feeling shorted, and their liberty undervalued.  The deprivation of a defendant’s liberty for eleven and a half hours may seem like a trifle to the judge or prosecutor in a particular case, but you can bet it matters to the person who was locked up during that time and wants every minute of his loss of liberty to be counted.  Still, because the shorted time typically amounted to some number of hours on either end of the original booking and release dates for a particular defendant, it wouldn’t seem, as a practical matter, like an issue worth the effort and money to appeal, at least not as a stand-alone issue.

The Wisconsin Court of Appeals, District II, recently ruled on this question as a stand-alone issue in State of Wisconsin v. Antonio A. Johnson, 2018 WI App. 2, 906 N.W.2d 704, a recently published case decided in December of 2017.  In Johnson, Defendant Antonio Johnson had been in and out of jail during his pending drug case, and therefore had several separate periods of incarceration that would afford him jail credit.    State v. Johnson, 2018 WI App. 2, ¶3.ii  However, three of the “days” for which he requested credit were fractions of calendar days.  Johnson at ¶4.  At sentencing, Johnson requested 33 days of credit, but the circuit court granted him only 30 days.  Id.  The court stated, “The policy of the court is that the time served would have to be more than 12 hours in order to get credit for a day … [a]nd I am not talking cumulative, either; I am talking about at one time.”  Id. (quoting circuit court).  Johnson appealed.

On appeal, the State contended that the circuit court accurately decided that Johnson was only entitled to 30 days of jail credit, arguing that a “day spent in custody” meant a continuous twenty-four hour period in which a defendant is in custody.  Id. at ¶2.  Johnson asserted the “rule of lenity,”iii and argued that each part of a calendar day that he spent in custody should be counted as one day for sentence credit purposes.  Id.  The Court of Appeals agreed with Johnson.

The Court relied upon three Supreme Court of Wisconsin (SCOW) cases in which fractions of calendar days were credited by the Court as full days for sentence credit purposes.iv  Although none of these cases focused directly on the question of what “a day” meant under the statue, each of them dealt with a different sentence credit issue which required the Court to calculate the credit due to the respective defendant.  In each case, SCOW calculated the defendant’s sentence credit; and, in each, the Court directed the lower court to award full days of credit for various fractions of calendar days.

Relying upon SCOW’s calculations in these three cases, the Court of Appeals in Johnson concluded that Johnson was entitled to “a day of sentence credit for each calendar day during which he spent at least part of the day in custody.” Johnson, 2018 WI App. at ¶8.  Therefore, Johnson was correct in his calculation of 33 days.  Id.

Because the Johnson decision dealt directly with the meaning of “a day” for sentence credit calculation purposes, it appears to be the most definitive statement on that issue from a higher court in Wisconsin.  Now it is up to criminal defense attorneys to cite this case as controlling when arguing for a client’s credit.  It will be interesting to see how circuit courts react in the cases in which the portion of a calendar day spent in custody is measured in minutes (or seconds!).   Those are the cases in which the meaning of this decision will be truly put to the test – a challenge for another day.


[i] The statute that directs how jail credit should be calculated is Wis. Stat. § 973.155(1)(a) (2015-16) which states (in relevant part):

(1) (a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, “actual days spent in custody” includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:

1. While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of sentence after trial.

[ii] “As relevant to this case, Johnson was in custody from his arrest on drug-dealing charges at 7:30 a.m. on August 19, 2013, until his release on bond at 3:25 p.m. on August 20, 2013. He was again taken into custody on drug-dealing charges on September 16, 2013, and released less than an hour later. At 6:11 p.m. on September 26, 2013, Johnson was once again taken into custody…until he posted bond and was released at 6:04 p.m. on October, 25, 2013.

[iii] The “rule of lenity” provides that, when there is doubt as to the meaning of a criminal statute, a court should interpret the statute in favor of the accused. See U.S. v. Santos, 553 U.S. 507 (2008) and State v. Cole, 2003 WI 59, 262 Wis.2d 167, 663 N.W.2d 700 (2003).

[iv] See State v. Obriecht, 2015 WI 66, 363 Wis.2d 816, 867 N.W.2d 387; State v. Carter, 2010 WI 77, 327 Wis.2d 1, 785 N.W.2d 516; and, State v. Johnson, 2009 WI 57, 318 Wis.2d 21, 767 N.W.2d 207.

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