APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
This is an appeal by Bernell J. Hampton from the denial of his petition for writ of mandamus against Charles J. Rowe, the Director of the Illinois Department of Corrections, by the Circuit Court of Will County. Hampton sought to compel the Department of Corrections to credit him with compensatory good time for his preconviction jail time served in the Cook County jail.
Only one issue is presented for review:
Whether the distinction drawn by Department of Corrections Regulation 866 regarding compensatory good time — a distinction between persons serving sentence in a penitentiary after conviction and those serving sentence in a county jail prior to conviction (because of an inability to make bond) — is totally irrational and thus denies equal protection of the law.
Plaintiff-appellant, Bernell Hampton, was arrested by authorities in Cook County, Illinois, on October 24, 1972, on a charge of murder. Bond was at first not set. It was set thereafter, but, because of his indigency, plaintiff was unable to post the amount specified. As a consequence, plaintiff remained incarcerated up to and through his first trial on the murder charge in June of 1974 (a trial resulting in a mistrial) and up to and through his second trial on that charge in January of 1975. He was convicted of murder following that second trial and sentenced to a term of 18 to 36 years in the penitentiary. He left the Cook County jail in June of 1975 and was transported to the Department of Corrections.
In sentencing the plaintiff on the murder conviction, the trial judge credited him with the time served in the Cook County jail. Plaintiff thus arrived at the penitentiary with credit for over 30 months of pretransfer jail time. Some time after arriving at the penitentiary, the plaintiff petitioned the Department of Corrections for compensatory good-time credit for this period of imprisonment in the county jail. Citing Administrative Regulation 866 and the fact that the regulation gives compensatory credit only to persons serving sentence in a State institution, the Department refused the credit.
On February 2, 1978, the plaintiff filed a petition for writ of mandamus in the Circuit Court of the Twelfth Judicial Circuit, Will County. The petition set forth the facts noted above regarding plaintiff's arrest, conviction and sentence and regarding the denial of compensatory credit for time spent in the county jail. The petition alleged that the application of Regulation 866 to preclude such credit amounted to a denial of equal protection of the law. Counsel was thereafter appointed to represent Hampton, and an amended petition for writ of mandamus was filed which restated Hampton's claim of a denial of equal protection and added another count which has not been argued on appeal.
Following a hearing and consideration of several motions, responses, and memoranda of law the trial court entered judgment denying both counts of Hampton's petition for writ of mandamus. Specifically the court held that Regulation 866 did not deny Hampton equal protection of the law.
• 1 The equal protection guarantees in both the Federal and Illinois constitutions require that State regulations and legislation accord similar treatment to persons similarly situated. (U.S. Constitution, amend. XIV; Ill. Const., art. 1, § 2.) The heart of Hampton's argument is that because he was unable, financially, to furnish bail bond and remained incarcerated awaiting trial he was denied compensatory good time credit of 218.5 days by virtue of Department of Correction's Administration Regulation No. 866. His contention of a violation of his equal protection rights is then based upon the more lenient treatment available to a wealthy defendant able to make bail bond, or one allowed out on personal recognizance, i.e., who is not incarcerated prior to his conviction and consequently may begin receiving compensatory good time from day one of his confinement in some facility of the Illinois Department of Corrections.
As aforesaid Hampton received credit for his pretrial incarceration served in the Cook County jail. (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-7(b).) He also received credit for "statutory good time" pursuant to Department of Corrections Administration Regulation 813. The policy set forth in Department Regulation 813 is to provide for the awarding, revocation or restoration of statutory good time, pursuant to section 3-6-3 of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, par. 1003-6-3), as revised effective October 1, 1975, for individuals not serving a determinate sentence under the provisions of Public Act 80-1099. The corresponding policy of Department Regulation 866 originally provided that it was the policy of the Department to award compensatory good time credit to all residents who are performing work assignments or participating in other education, vocational and therapeutic programs at correctional or community correctional centers in the State of Illinois and who are not serving a determinate sentence pursuant to the provisions of Public Act 80-1099. However, on September 1, 1975, the Department altered Regulation 866 because there were not enough jobs or programs available to accommodate those who sought "compensatory good time." The altered version of Regulation 866 provided that "compensatory good time" would be available to all inmates within the Department of Corrections and was given retroactive effect to January 1, 1973. Hence, the only present difference between "statutory good time" pursuant to Department Regulation 813 and the "compensatory good time" sought by Hampton is the amount and method of computation. The amount of credit is of course important to this plaintiff.
• 2, 3 Absent the existence of a classification which is inherently suspect or the infringement of a fundamental right, distinctions drawn by a State governmental unit in determining the application of a particular policy must be rationally related to the furtherance of a legitimate governmental interest to comply with the requirements of equal protection. (People ex rel. Tucker v. Kotsos (1977), 68 Ill.2d 88, 368 N.E.2d 903.) Accordingly, the standard for review of the alleged equal protection violation in the present case is the rational basis test. "Under the rational relationship analysis, once a discriminatory classification is shown, the court must then (1) look to the purposes behind the legislative scheme at issue, and (2) determine whether the classification bears a rational relationship to a legitimate legislative purpose." (People v. Miles (1977), 53 Ill. App.3d 137, 142, 368 N.E.2d 187, 190.) The facts recited above very clearly set forth a discriminatory classification in that Hampton was treated significantly differently because of his pretrial detention as opposed to the convicted felon who was free on bail until beginning to serve his sentence of imprisonment in a facility of the Illinois Department of Corrections.
The succinct issue before us is whether that classification bears a rational relationship to a legitimate legislative purpose. We believe that it does not.
The defendant, Director of the Illinois Department of Corrections, relies upon the case of McGinnis v. Royster (1973), 410 U.S. 263, 35 L.Ed.2d 282, 93 S.Ct. 1055, for upholding the discriminatory treatment of Hampton because it allegedly satisfies the rational basis test. McGinnis is distinguishable. Although the Supreme Court upheld a statute challenged on equal protection grounds which accorded no good time credit for preconviction county jail time served, the court recited that the New York statute allowed the complaining prisoners to elect the new procedure and thus lessen the disadvantage which was the basis of the claimed equal protection violation. Another distinction is the clear holding in McGinnis that the denial of good time credit for presentence jail time was rationally justified on the ground of the lack of rehabilitation programs available during presentence detention and that good time credit was correlated to rehabilitative programs.
In the case at bar compensatory good time is no longer correlated to rehabilitation or satisfactory performance of work assignments, but is available to all prisoners within the Department. For this reason the ...