State v. Burke

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 46841

STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, January 2020 Term
)
v. ) Opinion filed: April 22, 2020
)
JAMES DAVID BURKE, ) Karel A. Lehrman, Clerk
)
Defendant-Appellant. )

Appeal from the District Court of the First Judicial District of the State of Idaho,
Kootenai County. Cynthia K.C. Meyer, District Judge.

The judgment of the district court is reversed.

Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant.
Jenevieve C. Swinford argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Kale D.
Gans argued.

_______________________________________________

MOELLER, Justice.
This case concerns credit for time served under Idaho Code section 18-309. Prior to
sentencing, the defendant, James David Burke, was committed to the state mental hospital for 56
days to restore him to competency. After being evaluated and deemed competent to proceed to
trial, Burke was returned to the county jail and later pleaded guilty pursuant to a plea agreement.
At the conclusion of his sentencing hearing, Burke sought credit for the 56 days of time spent in
court-ordered commitment. The district court denied the motion, concluding that commitment to
a state mental hospital does not fall under the definition of ‘incarceration’ in Idaho Code section
18-309. For the reasons set forth below, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 7, 2018, defendant James David Burke called in a welfare check for himself.
Burke made statements about having suicidal thoughts, “wanting to hurt himself[,] and wanting to

1
go to the hospital.” During this contact, police discovered Burke was not complying with his
registration requirements as a sex offender because he was not living at the address where he was
last registered. During this welfare check, Burke’s communications with the police were “evasive”
and “incoherent.” Burke told the officers “he had to move after fighting a demon that had an atomic
bomb,” but that he “won the fight and buried the bomb with dirt.”
Police transported Burke to the crisis center for a mental health evaluation. They warned
Burke that he needed to register his new address immediately upon release from the crisis center
or he would be charged with failure to register. Three weeks later, after Burke remained
noncompliant, police arrested Burke for failure to register, a felony under Idaho Code section 18-
8309, and sought a sentencing enhancement based on persistent violator status.
On March 26, 2018, Burke’s attorney moved the magistrate court for a psychiatric
evaluation to determine Burke’s mental competency for court proceedings pursuant to Idaho Code
sections 18-210 and 18-211. The magistrate court granted the motion on March 28, 2018. The later
assessment reported that although Burke displayed “a pattern suggestive of a nonspecific psychotic
disorder,” Burke was fit to proceed. However, the evaluator further noted that Burke was mentally
ill and “gravely disabled” because of his psychotic disorder. Consequently, the magistrate civilly
committed Burke pursuant to Idaho Code section 66-329.1 Burke was discharged on May 14, 2018,
and returned to custody. On June 1, 2018, the magistrate court found Burke fit to proceed and
allowed him to waive his preliminary hearing, Burke later pleaded guilty as part of a pretrial
settlement offer. The district court then released Burke on his own recognizance.
On August 22, 2018, the date originally scheduled for Burke’s sentencing, his attorney
requested an additional psychiatric evaluation pursuant to Idaho Code sections 18-210 and 18-211.
This was done to address defense concerns that “the information in the Presentence Investigation
Report leads [sic] to believe that Mr. Burke suffers from a significant mental illness or disability.”
The district court continued the sentencing and ordered an additional psychiatric evaluation. The
second evaluation, completed on October 12, 2018, diagnosed Burke with schizophrenia and
concluded that Burke was incompetent and unfit to proceed with the pending legal proceedings
against him. Accordingly, on October 18, 2018, the district court entered an order committing
Burke to the custody of the director of the Idaho Department of Health and Welfare (“IDHW”).

1
The record of this separate proceeding is not before us; however, Burke is not seeking credit for the time he spent in
treatment pursuant to the civil commitment order.

2
The order was not signed until October 22, 2018. Burke was then taken into custody by IDHW
and housed at State Hospital North until December 17, 2018, for a total of 56 days.
After Burke was deemed competent, the district court released Burke on his own
recognizance and rescheduled his sentencing for December 22, 2018. At sentencing, Burke
received a total unified sentence of five years, with two years fixed followed by three years
indeterminate. It was further ordered that the execution of the sentence “be suspended for a period
of two (2) years, during which time [Burke would] be on supervised probation.” Burke then sought
credit for the 56 days he was committed for treatment at State Hospital North pursuant to Idaho
Code section 18-212. After considering the briefing from both parties on the matter, the district
court denied Burke’s request for credit for time served. The district court concluded that
“commitment to a state mental hospital is not ‘incarceration’ for the purposes of Idaho Code § 18-
309.” Burke timely appealed.

II. STANDARD OF REVIEW
Statutory interpretation is a question of law that receives de novo review from this Court.
State v. Schulz, 151 Idaho 863, 865, 264 P.3d 970, 972 (2011). We begin statutory interpretation
with the literal language of the statute, giving words their plain, usual, and ordinary meanings. Id.
at 866, 264 P.3d at 973. In addition, provisions are interpreted within the context of the whole
statute, not as isolated provisions. Id. This includes giving effect “to all the words and provisions
of the statute so that none will be void, superfluous, or redundant.” Id. Where the language is
unambiguous, we need not consider the rules of statutory construction. Id. “Ambiguity is not
established merely because differing interpretations are presented to a court; otherwise, all statutes
subject to litigation would be considered ambiguous.” Hamilton ex rel. Hamilton v. Reeder Flying
Serv., 135 Idaho 568, 572, 21 P.3d 890, 894 (2001).
III. ANALYSIS

The single issue on appeal is whether the plain meaning of “incarceration,” as used in Idaho
Code section 18-309, includes time a defendant spends in confinement during a court-ordered
commitment to a state mental hospital pursuant to sections 18-211 and 18-212. Neither party
argues that the term “incarceration” is ambiguous language in the statute. Burke contends that the
plain meaning of “incarceration” focuses on the act of “confinement, not the facility,” and that
“the degree of confinement matters, the location does not.” The State argues that “incarceration”
plainly refers to a jail or prison. The district court agreed with the State below, and concluded that
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“incarceration” does not include commitment to a state mental hospital because incarceration
means confinement in a jail or prison.
Our analysis begins with a review of the relevant statutes and dictionary definitions. Idaho
Code section 18-309 provides, in part, “the person against whom the judgment was entered shall
receive credit in the judgment for any period of incarceration prior to entry of judgment, if such
incarceration was for the offense or an included offense for which the judgment was entered.” I.C.
§ 18-309(1) (emphasis added). Despite the statute’s purpose—granting defendants full credit for
their time served prior to judgment—it is troubling that it lacks a statutory definition for the term
“incarceration.” While this credit-computation statute has been interpreted numerous times in the
last four years, see e.g. State v. Osborn, 165 Idaho 627, 449 P.3d 419, 424 (2019), this Court has
never interpreted its meaning of “incarceration.”
“Incarceration” means “The act or process of confining someone; IMPRISONMENT.”
BLACK’S LAW DICTIONARY, Incarceration (11th Ed. 2019). The Latin root “carcer” translates to
“jail” or “prison,” “especially one used to detain rather than punish.” BLACK’S LAW DICTIONARY,
Carcer (11th Ed. 2019). Historically, “carcer” was used in English and Roman law to refer “to a
jail used as a place of detention during trial or after sentence pending execution, rather than as a
place of punishment.” Id. “Confinement,” in turn, is defined as “[t]he act of imprisoning or
restraining someone; the quality, state, or condition of being imprisoned or restrained[.]”
Confinement, Black’s Law Dictionary (11th ed. 2019). Naturally, jails and prisons are the typical
examples of incarceration that first come to mind. However, while “incarceration” clearly includes
imprisonment within a jail or prison, the plain definition focuses on confinement and detention—
i.e. the restrictions to liberty—rather than a place of sentencing or punishment.2

2
The dissent references the emerging field of corpus linguistics and the work of Stephen C. Mouritsen to urge the
Court to move beyond “the fortress of a dictionary and the logic of other courts” when defining legal terms. Stephen
C. Mouritsen, The Dictionary Is Not A Fortress: Definitional Fallacies and A Corpus-Based Approach to Plain
Meaning, 2010 BYU L. Rev. 1915, 1915 (2010) (quoting Judge Learned Hand in Cabell v. Markham, 148 F.2d 737,
739 (2d Cir. 1945), aff’d, 326 U.S. 404 (1945)). While we do not foreclose the possibility of considering this type of
linguistic evidence in the future, neither side has submitted such evidence in this case, as the dissent acknowledges.
Therefore, we are left with applying an ancient, yet well-established interpretive tool of an appellate court: the
dictionary. See, e.g., Arnold v. City of Stanley, 158 Idaho 218, 221, 345 P.3d 1008, 1011 (2015) (“To ascertain the
ordinary meaning of an undefined term in a statute, we have often turned to dictionary definitions of the term.”).
Notwithstanding the esteemed Judge Learned Hand’s oft-quoted observation in 1945 that “it is one of the surest
indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary,” Cabell, 148 F.2d at
739, we are persuaded that the dictionary remains a crucial tool in statutory interpretation. We are not alone in this
belief. See John Calhoun, Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary
Use, 124 Yale L.J. 484, 498 (2014) (“From 1985 to 1999, dictionary usage [by U.S. Supreme Court Justices] increased
three hundred percent in proportional terms. By 2010, Supreme Court opinions cited dictionaries four times as often

4
 This plain meaning interpretation of “incarceration” is consistent with other terms the
legislature has defined. For instance, “prisoner” is defined as “a person . . . who is being detained
pursuant to a court order,” and “[w]ho is being housed in any state, local or private correctional
facility[.]” I.C. § 18-101A(6). The fact that Burke was detained pursuant to a court order is without
question. Likewise, in Idaho Code section 18-101A, which contains a series of definitions that are
applicable throughout the criminal code, the term “correctional facility” is defined as
a facility for the confinement of prisoners or juvenile offenders. The term shall be
construed to include references to terms including, but not limited to, “prison,”
“state prison,” “state penitentiary,” “governmental detention facility,” “penal
institution (facility),” “correctional institution,” “juvenile correctional center,”
“Idaho security medical program,” “detention institution (facility),” “juvenile
detention center (facility),” “county jail,” “jail,” “private prison (facility),” “private
correctional facility,” or those facilities that detain juvenile offenders pursuant to a
contract with the Idaho department of juvenile corrections.
I.C. § 18-101A(1) (emphasis added).
Given the expansive language “including, but not limited to,” the state hospital where
Burke was detained pursuant to court order falls within the ambit of the statute. In this case, the
district court entered a court order committing Burke to the custody of the Idaho Department of
Health and Welfare in order to restore his competency. I.C. § 18-212(2). Burke was confined inside
State Hospital North and any unauthorized departure from the facility would have been deemed
an “escape.” I.C. § 18-212(6). Reading Idaho Code section 18-101A(1) broadly—as is required by
the language of the statute—a mental health facility in this context would be indistinguishable
from a “governmental detention facility” or a “detention institution (facility)” and hence a
“correctional” facility. Because Burke was committed by a court order and detained in a
“correctional” facility, Burke was a “prisoner” pursuant to Idaho Code section 18-101A(6).
The State relies on a case from the Idaho Court of Appeals that interpreted “incarceration”
in the context of house arrest. In State v. Climer, the Idaho Court of Appeals held that a
prejudgment house arrest did not constitute “incarceration” for calculating credit for time served.
127 Idaho 20, 23, 896 P.2d 346, 349 (Ct. App. 1995). However, the court distinguished between

as in 1985—and over seven times more often than in 1950.”) (emphasis included). It appears that rumors of the
dictionary’s demise as a legal reference tool may have been greatly exaggerated.

5
house arrest and jail or prison by engaging in what appears to be a liberty-restriction analysis. 127
Idaho at 23–24, 896 P.2d at 349–50.
[H]ome confinement, as a condition of pretrial release, is not equivalent to
confinement in a jail or prison because an “offender who is detained at home is not
subject to the regimentation of penal institutions” but “once inside the residence,
enjoys unrestricted freedom of activity, movement, and association.” State v.
Ramos, 561 N.E.2d 643, 647 (1990). “Furthermore, a defendant confined to his
residence does not suffer the same surveillance and lack of privacy associated with
becoming a member of an incarcerated population.” Id.
Id. (parallel citations omitted). The Court of Appeals rejected the argument that house arrest fell
within the definition of incarceration, reasoning that house arrest did not constitute a sufficient
restriction on the defendant’s liberty. Instead, the court appropriately concluded that house arrest
does not rise to the equivalent level of incarceration associated with prison or jail. See id. No Idaho
appellate court has expressly rejected a liberty-restriction analysis in calculating time served.
Other states have also held that commitment to a state mental hospital is synonymous with
incarceration due to the equivalent restrictions to liberty or because the time spent in custody is a
result of the criminal offense. See Harris v. Charles, 256 P.3d 328, 337 (Wash. 2011) (“Time
in incarceration includes mandatory time spent in a state mental hospital.”); Asfaha v. State, 665
N.W.2d 523, 528 (Minn. 2003) (jail credit should be awarded where a treatment facility is “the
functional equivalent of . . . a jail, workhouse, or regional correctional facility.”); State v. Jordan,
485 N.W.2d 198, 201 (Neb. 1992) (addressing probation but holding “ ‘in custody’ means
judicially imposed physical confinement in a governmental facility authorized for detention,
control, or supervision of a defendant before, during, or after a trial on a criminal charge.”); People
v. Williams, 318 N.E.2d 692, 694 (Ill. 1974) (“the time spent by the defendant in a California
mental institution was ‘time spent in custody as a result of the offense for which the sentence was
imposed.’ ”).
For example, the Florida Supreme Court held that a defendant’s “coercive commitment to
a state institution was indistinguishable from pretrial detention in a ‘jail,’ ” because he “was in the
total custody and control of the state at all times.” Tal-Mason v. State, 515 So. 2d 738, 739 (Fla.
1987). “[T]he primary purpose of both the [psychological] treatment and the detention was to hold
[the defendant] until such time as he became competent to stand trial, if ever.” Id. This decision
also rested on the interpretation of “jail” in Florida’s credit-computation statute, which stated:
“[T]he court imposing a sentence shall allow a defendant credit for all of the time he spent in

6
the county jail before sentence.” Id. (quoting Florida Code § 921.161(1)). Likewise, in California,
the time served computation statute “provides for a mandatory credit to his sentence of all time
spent by a defendant ‘in custody in any city, county, or city and county jail,’ ” which includes time
spent committed in a state hospital. People v. Cowsar, 115 Cal. Rptr. 160, 160 (Ct. App. 1974).
Both the logic and policy considerations in these cases from other jurisdictions are compelling.
Here, Burke’s court-ordered commitment to state custody to restore competency contained
all the hallmarks of incarceration. Once ordered, Burke had no choice to reject the commitment
and no option to terminate it early of his own volition—the commitment was mandatory. I.C. §
18-212. The order of commitment issued by the court required the county sheriff to transport Burke
to the facility. Id. The State had complete and total control of Burke at all times. Accordingly, once
committed to the state hospital, Burke did not enjoy “unrestricted freedom of activity, movement,
and association.” See Climer, 127 Idaho at 23, 896 P.2d at 349 (citation omitted). Further, once
Burke was committed to the state hospital, he was “under the same surveillance and lack of privacy
associated with becoming a member of an incarcerated population.” Id. at 24, 896 P.2d at 350
(quotation omitted). In addition, a defendant in Burke’s position may even be subjected to a court
order requiring involuntary treatment, if the defendant refuses to comply with the prescribed
treatment regimen. I.C. § 18-212(3). This degree of control, supervision, and restriction is virtually
indistinguishable from detention in a prison or jail. Therefore, all of the factors the Court of
Appeals found did not apply to the house arrest in Climer, are present in this case. Accordingly,
we conclude that Climer does not support the district court’s decision in this case.
After reviewing this issue carefully, we must disagree with the district court’s thorough
and thoughtful analysis and hold that court-ordered commitment to state custody pursuant to Idaho
Code sections 18-210 and 18-211 meets the functional and legal definition of “incarceration” under
Idaho Code section 18-309. The extent of the liberty interests restricted by Burke’s court-ordered
commitment to State Hospital North are just too similar to imprisonment to conclude otherwise.
Accordingly, we reverse the district court’s order denying Burke’s request for credit for time
served and remand the case for the district court to enter an order crediting him with the fifty-six
days he spent committed to State Hospital North while the State restored his competency to face
criminal charges.

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 IV. CONCLUSION
For the foregoing reasons, we reverse the district court and remand this matter for further
action consistent with this decision.

Chief Justice BURDICK, Justices BRODY and STEGNER CONCUR.

BEVAN, Justice, dissenting:
This case concerns what the majority characterizes as a straightforward analysis of the
plain meaning of “incarceration,” as used in Idaho Code section 18-309. Because I believe the
plain meaning of incarceration does not include being confined for treatment and restoration of
mental competency, I respectfully dissent.
The majority recognizes the goal before us. “The objective of statutory interpretation is to
give effect to legislative intent.” Guenther v. Ryerson, ___ Idaho ___, ___, 458 P.3d 184, 193–94
(2020) (quoting State v. Olivas, 158 Idaho 375, 379, 347 P.3d 1189, 1193 (2015)). Determining
legislative intent “must begin with the literal words of the statute; those words must be given their
plain, usual, and ordinary meaning; and the statute must be construed as a whole.” Id. This mandate
requires that we not view words like “incarceration” in a vacuum, but that we seek to discern “the
plain meaning of the whole statute, not of isolated sentences.” Beecham v. United States, 511 U.S.
368, 372 (1994). The result reached by the majority, however, isolates the word incarceration from
the rest of the statute, ignores its “ordinary meaning” and expands its scope to a mental infirmary
– a place which is neither a jail, nor a penitentiary, and where incarceration simply does not occur.
The majority views the word “incarceration” as unambiguous. But the word
“incarceration” is ambiguous as applied by the majority here. A statute “is ambiguous where
reasonable minds might differ or be uncertain as to its meaning.” City of Idaho Falls v. H-K
Contractors, Inc., 163 Idaho 579, 582, 416 P.3d 951, 954 (2018). The competing views of this
case are both reasonable. Thus, we must resort to more than a dictionary definition or reliance on
out-of-state courts’ views of their own statutes to resolve this question. Instead, we must determine
legislative intent “by examining not just the literal words of [Idaho’s] statute, . . . [but by also
viewing] the reasonableness of proposed constructions, the public policy behind the statute, and
its legislative history.” Id. (internal citations and quotations omitted). Application of these
standards to the question before us leads to but one conclusion. To receive credit for time served

8
towards his penitentiary sentence, a convicted defendant like Burke must be held in a “correctional
facility” as defined by Idaho Code section 18-101A. Mental hospitals are not correctional facilities.
The majority recognizes this dichotomy, but it resorts to the fortress of a dictionary and the
logic of other courts3, to simply conclude that it is “plain” that the “definition focuses on
confinement and detention—i.e. the restrictions to liberty,” as the focal point in its analysis. Judge
Learned Hand has recognized that “it is one of the surest indexes of a mature and developed
jurisprudence not to make a fortress out of the dictionary.” Stephen C. Mouritsen, The Dictionary
Is Not A Fortress: Definitional Fallacies and A Corpus-Based Approach to Plain Meaning, 2010
BYU L. Rev. 1915, 1915 (2010) (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945),
aff’d, 326 U.S. 404 (1945) (emphasis added)). Relying upon a dictionary and other courts who use
such definitions often results in decisions that are driven more by the desired outcome, than by
reasoned analysis. Mr. Mouritsen recognized:
The judicial conception of lexical meaning--i.e., what judges think about what
words mean, or, more importantly, how judges arrive at the meaning of contested
terms--is often outcome determinative. Vast fortunes or years of confinement may
balance precariously on the interpretation of a single word. When faced with hard
cases--cases in which contextual cues or legislative definitions do not decisively
favor either party’s asserted meaning--judges, like many speakers of English, will
cast about for interpretive tools, often looking for comfortable reassurance in one
of the language’s more firmly established and dependably stable institutions--the
English dictionary. Such dictionaries, said Justice Jackson, are the last resort of the
baffled judge.
Mouritsen, 2010 BYU L. Rev. at 1915 (footnotes and quotation marks omitted). Resorting to the
“comfortable reassurance” of the dictionary and the outcome determinative conclusion that
“incarceration” focuses on the act of “confinement, not the facility,” and that “the degree of
confinement matters, the location does not,” misses the mark.
This Court must review the entire statute, and resolve the question with more than a simple
logical syllogism that someone who is incarcerated is confined; therefore, confinement in a mental
hospital is incarceration. By looking to the “literal words of the statute, . . . the reasonableness of

3
The non-Idaho cases relied on by the majority lack application to the literal words of Idaho’s statute; other states’
statutes are different than Idaho’s. The language quoted by the majority from Washington, for example, came from In
re Knapp, 687 P.2d 1145 (Wash. 1984) (en banc). That case applied a statute which mandated that “custodial
confinement in a state mental hospital is substantially synonymous with custodial confinement in prison or jail and
that individuals incarcerated in the former should be treated the same as those incarcerated in the latter.” Id. at 1150
n.2 (citing WASH. REV. CODE § 72.68.031). Such specific directives from the Washington Legislature make its
Supreme Court’s analysis inapposite to the issue here.

9
proposed constructions [and] the public policy behind [it],” H-K Contractors, Inc., 163 Idaho at
582, 416 P.3d at 954, we move beyond the dictionary’s walls to note the central purpose for Burke
going to the State mental hospital in the first place. Burke’s confinement was not to punish him
for his wrongdoing; it was to restore his competency through medical care and treatment. Thus,
placement in the custody of the Idaho Department of Health and Welfare (IDHW), even by court
order, is a health-related act; it has nothing to do with punishment for the crime which brought
Burke into the jail in the first place.
This result also reflects common usage4 of the term “incarcerated,” which is seldom used
when someone is “committed” to a mental health facility for medical care. The legislature’s
addition of the phrase “if such incarceration was for the offense or an included offense for which
the judgment was entered” adds further direction to our analysis. I.C. § 18-309. Unlike time served
in jail awaiting trial, the time which a defendant, such as Burke, spends in the custody of IDHW
for diagnostic and treatment purposes is not incarceration for an offense for which a judgment had
been (or could be) entered. Here, although his charges may have precipitated the need to determine
his mental competency, Burke’s commitment to State Hospital North was not for his failure to
register as a sex offender, but was ordered—in this case in response to his own motion—to
ascertain, treat, and restore his competency to participate in his upcoming legal proceedings.
This interpretation also aligns with other terms the legislature has defined. As also noted
by the majority, in Idaho Code section 18-101A, a series of definitions applicable throughout the
criminal code, defines the term “correctional facility” as
a facility for the confinement of prisoners or juvenile offenders. The term shall be
construed to include references to terms including, but not limited to, “prison,”
“state prison,” “state penitentiary,” “governmental detention facility,” “penal
institution (facility),” “correctional institution,” “juvenile correctional center,”
“Idaho security medical program,” “detention institution (facility),” “juvenile
detention center (facility),” “county jail,” “jail,” “private prison (facility),” “private
correctional facility,” or those facilities that detain juvenile offenders pursuant to a
contract with the Idaho department of juvenile corrections.

4
Mr. Mouritsen’s article focuses on and advocates for a more objective approach than simply opening a dictionary to
resolve statutory interpretation–the use of Corpus Linguistics. While neither party, nor the court below relied on this
innovative tool to resolve this question, I note that a simple search for the word “incarceration” in the Corpus of
Historical American English, or COHA, reveals 442 uses of incarceration in the 400-million-word database between
1810 and 2009. None of these uses involved “incarceration” in a mental institution, and only three referenced
incarceration in an asylum. These results once again evidence the usefulness and objectivity of determining the
meaning of words through corpus linguistics, rather than through simply turning to a dictionary to reach a desired
result.

10
This definition limits the term “correctional facilities,” where incarceration actually takes place,
to traditional places of criminal detention and custody, such as jails and prisons. It lacks any
reference to mental health facilities, sanitariums, or hospitals. That this language includes the “not
limited to” clause is not carte blanche to expand the “plain meaning” of this clause to include other
sites which focus on medical treatment, even if one is “confined” there. Thus, a mental hospital is
not a correctional facility; thus, it is not a place of confinement “for” the sex offender charge that
brought Burke before the court.
In contrast, Idaho Code section 18-212 requires that a defendant who is considered
mentally unfit to proceed in a criminal matter must be committed to IDHW “for care and treatment
at an appropriate facility,” which could include “a state hospital, institution, mental health center,
or those facilities enumerated in subsection (8) of section 66-402, Idaho Code, equipped to
evaluate or rehabilitate such defendants.” I.C. § 18-212(2). In short, a defendant who lacks
competency for a criminal proceeding is transferred to the custody of IDHW, treated medically,
evaluated for fitness to proceed, and rehabilitated in an effort to restore competency. Id. While
such a person is “confined,” his confinement is not punitive, and is therefore not “for the offense .
. . for which the judgment was entered.” I.C. § 18-309. These separate statutes highlight the stark
contrast between how the legislature has defined correctional facilities and treatment facilities—
with no apparent crossover. Thus, the majority’s expansion of correctional facilities to include
treatment centers goes beyond the reasonableness of the definitional limitations of these statutes.
In addition, if we look to the whole of the statute at issue, the title of the statute we are
examining is “Computation of Term of Imprisonment,” which likewise points the way to what
incarceration means when used in this statute. It has to do with imprisonment. Each subsection of
the statute begins with the words: “In computing the term of imprisonment. . . . ” (emphasis added).
The purpose of this statute is thus to give credit towards a term of imprisonment for time spent
incarcerated before sentencing. Thus, the statute itself provides that imprisonment is a key element
to analyzing what incarceration means.
Finally, if we wish to examine the linguistics behind the word incarceration, we can, like
the majority, note that “carcer” is Latin for jail, or prison. “Carcer, as used in English law and
Roman law, usu[ally] referred to a jail used as a place of detention during trial or after sentence
pending execution, rather than as a place of punishment. The modern term incarceration derives
from this word.” Carcer, BLACK’S LAW DICTIONARY (11th ed. 2019) (emphasis added). Thus, the

11
plain meaning of incarceration, as used in section 18-309, necessarily involves custody in a jail or
prison—places of imprisonment.
Each of these reasons establishes that the plain meaning, the reasonableness of proposed
constructions, the statutory framework, and even the etymology of the word itself support a result
contrary from that reached by the majority. I therefore respectfully dissent.

12