(dissenting) — I dissent because I believe that the equal protection clause of the Fourteenth Amendment to the United States Constitution is offended by a system that awards less of the good behavior component of earned early release credit to an offender who is held in jail pending trial and sentencing on a noncapital felony than it awards to a similarly situated offender who serves his or her entire sentence in a Department of Corrections (DOC) facility.
As the majority points out, this court in In re Mota, 114 Wn.2d 465, 788 P.2d 538 (1990), concluded that the constitution was violated by a system that completely denied earned early release credit to offenders who awaited trial and sentencing in a county jail, because such a system treated those offenders "differently from those who serve[d] the entire sentence either in county jail or in a state institution.” Mota, 114 Wn.2d at 473. Consistent with Mota, the Legislature amended the statute relating to earned early release credits and required that any such program "shall allow an offender to earn early release credits for presentence incarceration.” RCW 9.92.151(1) (as amended by Laws of 1990, ch. 3, § 201). The amendment cured the problem identified in Mota because it mandated that the early release policies of local correctional facilities, including county jails, must apply to *67persons who spend time in a county jail pending trial and sentencing. The amendment did not, however, resolve the equal protection challenge that is presented by this case.
Although the majority somewhat grudgingly concedes that the equal protection challenge presented by this case is wealth based, it appears to suggest that there is some question whether these Petitioners spent time in a county jail because of their financial inability to post bail. I recognize that the record we have been furnished is not particularly clear as to whether either Fogle or MacFarlane was detained in jail prior to trial and sentencing because of a financial inability to post bail, or for some other reason. The majority indicates that there was "some dispute whether Defendants were eligible for bail,” noting that "both [Fogle and MacFarlane] were held on separate fugitive warrants” pending trial. Majority at 63. Whether, as the majority suggests, the existence of such warrants was "likely to render payment of bail on the primary charge futile,” however, is a matter of conjecture. Majority at 63. In the absence of evidence to the contrary, it is reasonable to assume that these two trial courts would have had to set bail in some amount or would have had to impose some combination of conditions other than detention in order to assure these Defendants’ appearance at trial. See CrR 3.2(a) ("The court shall impose the least restrictive . . . conditions that will reasonably assure that the accused will be present for later hearings . . . .”). Significantly, there is nothing in the record to indicate that any court had denied bail to either Fogle or MacFarlane. On the contrary, the record contains a teletype warrant, perhaps one of the fugitive warrants referenced by the majority, indicating that, with respect to a charge against MacFarlane in Pierce County Superior Court, "cash or surety bond [is] to be approved by court.” (Mot. to Supplement the R. at Ex. A.)
Insofar as the Petitioners’ ability to post bail is concerned, both assert that they were financially unable to do so. In his Motion for Discretionary Review, Fogle contends *68that he was detained in jail pending trial "solely on [the] basis of his financial ability to post bail.” (Mot. for Discretionary Review at 2.) Similarly, in a Reply Brief filed with the Court of Appeals, Division Two, MacFarlane, who appeared without benefit of counsel, summarized his position as follows:
After all is said and done, the discrimination in the present case is fueled by a perverse reading of the statute leveled against those too poor to raise bail and unable to obtain release on personal recognizance — that is the real rub in Mr. MacFarlane[’]s case.
(Reply to Prosecutor’s Resp. at 13.) In short, the State has not demonstrated that the Petitioners’ failure to post bail was for reasons other than financial inability. I am satisfied, therefore, that the Petitioners have properly raised an important equal protection question: Were they treated differently from other similarly situated offenders simply because of their indigency?
Putting aside for the moment any speculation about the reason for Fogle’s and MacFarlane’s inability to post bail, it is certain that because bail was not posted, these Petitioners each became subject to the earned early release credit policies of the county for the time spent in county jail pending trial and sentencing.1 Pursuant to those policies, the counties certified to DOC, and DOC awarded Fogle and MacFarlane good conduct time credit equal to fifteen percent of the time they each served in a county jail, the maximum credit for good behavior permit*69ted under the counties’ policies.2 Importantly, as the majority concedes, had Fogle and MacFarlane not served their presentence time in a county jail, each would have been eligible to receive more credit for good behavior against his sentence than was actually received. In addition, under the policies of each of the two counties, the Petitioners were ineligible to participate in any program that would allow them to,, accumulate "earned time” for good performance during that time. Consequently, they did not receive any earned early release credit for good performance while awaiting trial and sentencing. In sum, the application of these policies in Fogle’s and MacFarlane’s cases resulted in the Petitioners receiving less total earned early release credits against their sentences than they would have received had they served their entire sentence in a state correctional facility.3
By this dissent, I do not mean to suggest that a county violates the equal protection provisions of the United States Constitution when it withholds good conduct credit from offenders who have not exhibited good behavior while detained in jail. Indeed, county correctional facility managers must have the ultimate discretion to determine whether an inmate has exhibited good behavior and/or good performance. Furthermore, I concur with the majority, insofar as it concludes that the policies of the counties that restrict eligibility for the good performance component of earned early release time credit for participation in work release or academic programs survive an equal protection challenge. My disagreement with the majority relates only to the manner in which good behavior credit was applied to the sentences imposed by the trial court on *70Fogle and MacFarlane, two offenders who were determined by county jail officials to have exhibited good behavior while they were detained in jail pending trial and sentencing. In my judgment, the manner in which credit for good behavior was applied by the DOC and Clark and Pierce counties implicates the equal protection clause of the federal constitution because the counties and state had no legitimate reason, such as a lack of good conduct on the part of the Petitioners, to award Fogle and MacFarlane less good time credit than they would have been awarded had they served their entire sentences in a DOC facility.
Respondent Clark County asserts that the Petitioners’ claim that the county policies are unconstitutional is misplaced because "[t]hough Clark County awards fifteen percent (15%) good time credit [for good behavior], the Department of Corrections can award the defendant a higher percentage so that the aggregate sentence of good time is equal to [the statutory maximum] one-third.” (Br. of Resp’t at 6) (citing RCW 9.94A.150). I recognize that the Petitioners generally focus their claims on the policies of the counties. However, because these Petitioners did not have their good behavior credit reduced for misconduct, their complaints with respect to crediting of their good behavior time necessarily relate to the flaws in the entire system of awarding, certifying, and crediting time against the sentences of offenders who are detained in a county facility prior to serving a sentence in a state correctional facility. Whether it is the county or the state that erroneously awards, certifies, or credits time for good behavior is of little moment to an offender whose legitimate liberty interest, protected by the equal protection clause of the United States Constitution, is violated by this system.
As the majority observes, the equal protection clause of the United States Constitution requires the government to treat persons who are similarly situated in a like manner. See U.S. Const. amend. XIV, § 1. The majority also recognizes that because the central issue in the case concerns an alleged denial of a liberty interest based on *71wealth, a semisuspect classification, the appropriate standard of review of the policies of the counties is intermediate scrutiny. Majority at 62-63. The test under this level of scrutiny is whether the disparate treatment "may fairly be viewed as furthering a substantial interest of the State.” Plyler v. Doe, 457 U.S. 202, 217-18, 102 S. Ct. 2382, 72 L. Ed. 2d 786, reh’g denied, 458 U.S. 1131 (1992) (footnote omitted).
The class of persons subjected to disparate treatment in this case is persons who are sentenced to state correctional facilities for noncapital felonies.4 While all members of this class who are not released from jail on their personal recognizance pending trial have the right to obtain their release by posting bail,5 some members of that class have sufficient funds to post bail and others do not. The portion of the class that is unable to post bail is, as we have already observed, subject to the earned early release credit policies of the county. Those members of the class that obtain release on bail, but who are later convicted and sentenced to prison, are subject to the more generous policies of DOC regarding good behavior credit, and thus become eligible to accumulate more earned early release credit for good behavior. Ultimately, the latter group of individuals serve less of their sentences than those who were not able to post bail. The result is that the less wealthy members of the class fare worse than their more well-heeled classmates.
The majority suggests that a person’s failure to post bail may not always be driven by financial reasons. While in a theoretical sense that may be true, in a practical sense it is still a fact of life that most persons charged with a crime who have the wherewithal to post bail will do so. In this case, moreover, the Petitioners said that they would have posted bail had they been able to do so.
*72The majority also holds that "the state’s substantial interest in maintaining prisoner discipline, particularly by preventing flight from prosecution and preserving local control over jails, justifies disparate treatment to overcome [the Petitioners’] equal protection challenge” even under a intermediate scrutiny analysis. Majority at 63.1 fail to see how awarding a person who makes bail a more generous earned release credit than one who does not has any effect on jail discipline. That conclusion seems obvious because the individuals who post bail and obtain their release from jail are not subject to jail discipline. Furthermore, of those offenders who are unable to post bail, only those who maintain good behavior, thus becoming eligible for the maximum amount of the good behavior component of earned early release credit, are penalized by the counties’ certification of good behavior credit and the application of those credits by DOC. While it is clear that this unequal treatment does punish those who are unable to make bail, it hardly seems that it is a substantial or legitimate purpose of pretrial detention to exact punishment of the indigent.
In the case of In re Williams, this court said that "significant equal protection concerns are raised by the differential treatment that may be accorded the indigent as a result of his inability to post bail before trial.” In re Williams, 121 Wn.2d 655, 665, 853 P.2d 444 (1993) (citing Mota, 114 Wn.2d at 469-70). While we do not have precisely the same issue before us as we had in Williams and Mota, this is still a case that involves the equal protection concerns we recognized in Williams. In Williams, the DOC asserted that it had merely a passive role in applying the certificates of time served and credits earned as calculated by the county jails for offenders transferred from the jails to state correctional facilities. Recognizing that such a position could raise "important equal protection problems,” we held that although the DOC is "entitled to give presumptive legal effect to the certification the county jail provides,” the certificate had no "legal force if *73it is based upon an apparent or manifest error of law.” Williams, 121 Wn.2d at 664 (footnote omitted).
The foundation of the system that we have examined here, which accords some persons unfavorable treatment simply because they are financially unable to post bail, is unconstitutional. It is, therefore, based on a manifest error of law. This being the case, DOC cannot assume the passive role of blindly accepting the certificate of earned early release time indicating the amount of good behavior credit that was calculated by the counties. In light of the above, that portion of the certificate essentially can have no legal force other than to inform DOC that Fogle and MacFarlane are eligible for the maximum credit for good behavior allowable under DOC policies for the period of time the Petitioners served awaiting trial and sentencing. I would, therefore, have us hold that DOC must (a) disregard the credit for good behavior calculated and certified by the counties in this case, (b) calculate the amount of credit for good behavior that the Petitioners would have received had they been subject to DOC earned early release time policies regarding good behavior for that period of time, and (c) credit that amount of time against the Petitioners’ time served.
Johnson, Madsen, and Pekelis, JJ., concur with Alexander, J.
Fogle was detained in the Pierce County Jail for 102 days pending trial and sentencing on ten counts of possession of a controlled substance. Fogle ultimately pleaded guilty to one count, and was sentenced to sixty months in prison, to be served concurrently with a separate probation revocation. MacFarlane was held in the Clark County Jail for 144 days pending trial and sentencing on charges of possession of a controlled substance and assault in the third degree. MacFarlane ultimately pleaded guilty to both charges and received an exceptional sentence of seventy-two months for the possession offense, and eight months for the assault, to be served concurrently.
Under DOC policy, an inmate may receive up to ten days’ credit for each thirty days served for good behavior.
As the majority observes, a prisoner in a state facility is eligible to earn not only "good-conduct time” for good behavior at a rate of ten days per thirty days served, but also may accumulate "earned time” for good performance while participating in work, academic or treatment programs. The combination of "good-conduct time” and "earned time” may not exceed a statutory maximum of one-third of the imposed sentence. Majority at 59-60. See RCW 9.94A.150(1).
The class is not, as the majority seems to suggest, all persons incarcerated in a county jail.
Washington Const. art. I, § 20; CrR 3.2. See also State v. Kelly, 60 Wn. App. 921, 926-27, 808 P.2d 1150 (1991).