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Bob Ferguson

AGO 1951 No. 478 -
Attorney General Smith Troy


The sentencing justice of the peace may not preclude himself in advance from granting good behavior credits.

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                                                                  March 22, 1951

Honorable Hugh H. Evans
Prosecuting Attorney, Spokane County
Spokane, Washington                                                                                               Cite as:  AGO 49-51 No. 478

Dear Sir:

            You ask:

            When a justice of the peace sentences a person to the county jail and states on the commitment "no credit for good time," may he subsequently grant such credit?

            We advise that he has such authority.


            Rem. Rev. Stat. Supp. § 10191-1 (P.P.C. § 680-3) provides:

            "The sentencing judge of the superior court and the sentencing justice of the peace of the justice court shall have authority and jurisdiction whereby the sentence of a prisoner, sentenced to imprisonment in their respective county jail, may be reduced five days for each month of confinement therein for good behavior."

            Two things appear clear; (1) that only the sentencing judge or justice may grant good behavior credit; and (2) that granting of credit is discretionary and depends upon the behavior of the prisoner.  The "behavior" involved is that of the prisoner while serving his sentence.  Thus it cannot be granted  [[Orig. Op. Page 2]] or denied in advance.  Such would merely indicate a present intention regarding the future exercise of discretion.  This statement in a judgment and sentence would merely be harmless surplusage.  SeeIn re Clark 24 Wn. (2d) 105, 113, 163 P. (2d) 577 (1945).

            The commitment is merely the order to, and authority of the sheriff to hold the prisoner.  The questioned statement cannot be a valid order since the sheriff has no authority to grant or deny credit.  He may only bring the good behavior of an inmate to the attention and discretion of the sentencing judge or justice.

            We note that you state that the justice desires to grant credit because the prisoner is now able to obtain employment.  No doubt this factor may be considered in the exercise of an over-all discretion.  However, we point out that such credit may not be granted without actual good behavior.

Very truly yours,

Attorney General

Assistant Attorney General