dissenting:
The Majority concedes that section 18-1.3-405, 6 C.R.S. (2002), as enacted and amended, addressed discretionary parole, and has not been amended to account for mandatory parole. Maj. op. at 348. Because I find that the Majority’s retrofit of section 18-1.3-405 to accommodate mandatory parole constitutes an arrogation of the legislative power to amend section 18-1.3-405, and because I find the Majority’s interpretation violates the spirit and intent of that statute, I respectfully dissent.
In July 1998, Jason Norton was discharged from his sentence of imprisonment to the mandatory parole component of his previous concurrent felony sentences. In September 1999, Norton was arrested and charged with escape. Norton was incarcerated while the charge was pending, and Norton’s mandatory parole on the previous offenses remained un-revoked prior to sentencing. Norton was offered bail, but could not afford it. At the time of sentencing in January 2000, Norton had served sixty-nine days in prison. Because mandatory parole does not fit within the prohibition against duplicative credit, section 18-1.3-405 mandates that a trial court make a finding of the presentence confinement credit on a new offense.
I. “Sentence” Means “Sentence to Imprisonment”
Section 18-1.3-405 was enacted in 1979 to grant presentence confinement credit on an offense which caused that presentence confinement, People v. Ostuni, 58 P.3d 531, 533 (Colo.2002);
A person who is confined for an offense prior to the imposition of sentence for said offense is entitled to credit against the term of his or her sentence for the entire period of such confinement. At the time of sentencing, the court shall make a finding of the amount of presentence confinement to which the offender is entitled and shall include such finding in the mittimus. Such period of confinement shall be deducted from the sentence by the department of corrections.
§ 18-1.3-405, Therefore, a court must make a finding of a presentence confinement cred*351it, unless prohibited under the later 1988 amendment that disallowed duplicative credit when an offender continued to serve a previous offense:
If a defendant is serving a sentence or is on parole for a previous offense when he or she commits a neiv offense and he or she continues to serve the sentence for the previous offense ivhile charges on the new offense are pending, the credit given for presentence confinement under this section shall be granted against the sentence the defendant is currently serving for the previous offense and shall not be granted against the sentence for the new offense.
Id. (emphasis added).
Because I would hold that for purposes of section 18-1.3-405, an offender released to mandatory parole never “continues to serve the sentence for [a] previous offense,” whether or not parole is revoked, a court must, under the mandate of section 18-1.3-405, make a finding of presentence confinement credit for a new offense.
Section 18-1.3-405 was substantively amended most recently in 1988 when a discretionary parole scheme was in place. Therefore, the term “parole” implied a period of discretionary and not mandatory parole. In a discretionary parole regime, an offender, whether serving parole on the street or in prison, continued to serve his sentence to imprisonment. “[0]ne who is on [discretionary] parole is granted a special privilege to be outside the walls of the institution while serving his sentence_ At the same time the parolee remains in constructive custody ... [and] a defendant’s release on parole ‘in no way alters the fact that he is still under sentence.’ ” People v. Lucero, 772 P.2d 58, 60 (Colo.1989) (citing People v. Salvador, 189 Colo. 181, 183, 539 P.2d 1273, 1275 (1975)). An offender on discretionary parole is released from prison for the unserved portion of his prison sentence, Martin v. People, 27 P.3d 846, 858 (Colo.2001); but if the offender violates the terms of his parole, and is rein-carcerated for violation of parole, he serves in prison the remaining term of his sentence to imprisonment. Id. Therefore, it is abundantly clear that “sentence” in section 18-1.3-405 means sentence to imprisonment.
In contrast, when an offender is released to mandatory parole, he is no longer serving his sentence to imprisonment because it is discharged. § 18-l-105(l)(a)(V)(D), 6 C.R.S. (2002) (“If an offender has been granted release to parole supervision by the state board of parole, the offender shall be deemed to have discharged the offender’s sentence to imprisonment ... as if such sentence were discharged pursuant to law....”). Without doubt, an offender’s sentence includes two components: a term of incarceration and a period of mandatory parole. People v. Johnson, 13 P.3d 309, 313 (Colo.2000) (mandatory parole is a distinct element of sentencing, separate from the terms of incarceration or length of sentence imposed by the court). However, when released to mandatory parole, an offender is no longer serving a punitive sentence; rather, mandatory parole was instituted to ensure the successful reintegration of an offender into a community and to maintain public safety. See § 17-22.5-102.5(c), 6 C.R.S. (2002). Therefore, because an offender discharged to mandatory parole is no longer serving a sentence to imprisonment, he does not fit within the meaning of “sentence” intended by the legislature when it amended section 18-1.3^405 in 1988. Moreover, with regard to section 18-1.3-405, if parole is revoked, resulting in a parolee’s reincarceration, he is not serving his sentence to imprisonment. Rather, the parolee may be reincarcerated for the period remaining on his mandatory parole, from which he is immediately eligible for parole. § 17-22.5-403(8)(a). As such, it is not the sentence to imprisonment conceived by the legislature when it amended section 18-1.3-405, but something entirely different.
II. The Running of Mandatory Parole and Presentence Confinement Credit
Although the Majority concedes that mandatory parole is not a sentence to imprisonment, and additionally that a discretionary parole regime was in effect in 1988 when section 18-1.3-405 was last amended, it nevertheless finds that the prohibition against duplicative credit evolved to accommodate mandatory parole. The Majority’s recitation *352of legislative history of the 1988 amendment to prescribe duplicative credit, Maj. op. at 345-346, does nothing to clarify the issue at hand: whether duplicative credit results if presentence confinement credit is granted to a mandatory parolee whose parole continues to run while awaiting sentencing. I would find that presentence confinement credit to a mandatory parolee does not violate the intent of the legislature.
A. Duplicative Credit
An offender on mandatory parole serves one day of his mandatory parole time each day, whether he is in the community or in prison; therefore, parole need not be revoked for an offender to serve mandatory parole time. See § 17-22.5-405(5)(a), 6 C.R.S. (2002). Nor is a court order necessary for an offender to serve mandatory parole time. See id. When mandatory parole remains unrevoked, an offender, generally, serves that period of time in the community. Indeed, the purpose of mandatory parole is to rehabilitate and reintegrate an offender into a community. A community sentence to mandatory parole is not punitive, and therefore, when an offender is reincarcerated whether awaiting sentencing on another offense, or whether he is reincarcerated due to revocation, he is serving something less than, and different from, a sentence to imprisonment.
Thus, the running of a period of mandatory parole in addition to presentence confinement credit on a new offense does not constitute duplicative credit as envisioned by the General Assembly. I agree with the Majority’s assessment of the legislative history — it indeed forbids duplicative credit. Maj. op. at 345. The committee remarks, however, undeniably refer to duplicative credits on sentences to imprisonment, resulting in a windfall for a multiple offender.
This court has voiced the same sentiment that duplicative credit is to be avoided when it vitiates a statutory penalty.
Duplicative credits ... not only would reward the multiple offender but also would vitiate, to the extent of such credit, the statutory penalty applicable to the crime for which a particular sentence is imposed.
People v. Johnson, 797 P.2d 1296,1298 (Colo.1990) (citing Schubert v. People, 698 P.2d 788, 795 (Colo.1985)). Thus, the proscription of duplicative credit exists only in the context of reduction in a penalty.
I reiterate that Norton is not serving a sentence to imprisonment while on mandatory parole. Furthermore, his parole is not, in a punitive sense, a penalty, but serves to rehabilitate. As such, the running of mandatory parole and the grant of presentence confinement credit does not offend the intent contemplated by the legislature: credit is granted to only one sentence of imprisonment.
Because there is no duplicative credit, and since a mandatory parolee can never fit within the 1988 amendment denying presentence confinement credit, a court must follow the statutory mandate in section 18-1.3-405 to make a finding of presentence confinement credit and note it on the mittimus.
B. A Denial of Presentence Confinement Credit to a Mandatory Parolee Raises Equal Protection Concerns
Unless an exception applies, and none does here, a court must make a finding of presen-tence confinement credit on a new sentence. In addition to the statutory mandate in section 18-1.3-405 to a trial court to make a finding of presentenee confinement credit, our jurisprudence, grounded in fairness and justice, equally requires a trial court to do so. People v. Jones, 176 Colo. 61, 69, 489 P.2d 596, 600 (Colo.1971) (When presentence confinement credit was not yet statutorily mandated, we stated, a “trial judge should consider the time that a defendant is confined prior to the imposition of a sentence, and justice requires no less.”) In 1979, the General Assembly enacted the forerunner to section 18-1.3-405, mandating presentence confinement credit. We interpreted that provision in Schubert, holding that the purpose of presentence confinement credit was to eliminate the unequal treatment of indigent defendants, who because of their inability to post bail, are treated differently than their wealthier counterparts who post bail. 698 P.2d at 794. We have never retreated *353from this proposition, but rather have referred to it as a guiding principle of statutory interpretation: “[Statutory terms should be construed in a manner that avoids constitutional infirmities.” Fields v. Suthers, 984 P.2d 1167, 1172 (Colo.1999); see also Johnson, 797 P.2d at 1298; Massey v. People, 736 P.2d 19, 21 (Colo.1987). The Majority now casually repudiates our jurisprudence, finding Schubert not dispositive. Maj. op. at 348. I find the Majority’s discussion unconvincing.
First, the General Assembly has not addressed our rationale in Schubert in the context of presentence confinement credit and mandatory parole. Therefore, we should not usurp the legislative function and amend section 18-1.3-405 to add mandatory parole when the statute clearly meant discretionary parole. Second, the Majority states that the previously worded version of section 18 — 1.3— 405 was at issue in Schubert and that Schubert failed to cite authority for the proposition that a denial of presentence confinement credit raises equal protection concerns. Id. Therefore it concludes that Schubert is inapplicable. Id. Since the 1988 amendments do not apply to a mandatory parolee, only the old wording of section 18-1.3-405 is applicable here — which is precisely what we addressed in Schubert. Moreover, our rationale in Schubert is now firmly embedded in our jurisprudence, such that a citation to an almost two-decade-old concurring opinion holds no weight. Equal protection concerns, therefore, remain compelling.
Our penal system, particularly section 18-1.3-405, specifically addresses the inequities that result when an indigent is unable to post bail and is simultaneously denied presen-tence confinement credit. The Majority is cognizant of that same concern, Maj. op. at 348: indigent defendants unable to make bail and who at the same time are denied presen-tenee confinement credit are dealt a harsher penalty. As such, the Majority’s argument that the equal protection concerns announced in Schubert are no longer compelling rings hollow.
It is undisputed that Norton’s mandatory parole was unrevoked, that he was offered bail, and that the reason that he remained in prison was the inability to make bail. Thus, to deny Norton presentenee confinement credit to his new offense is to treat him differently from his wealthier counterparts, who would have enjoyed the freedom of serving mandatory parole in the community while awaiting sentencing. The legislature intended to remedy this very inequity by the enactment of section 18-1.3-405. Its intent must not be eviscerated by denying credit by erroneously applying an exception that does not fit in light of the new felony sentencing scheme.
III. Conclusion
The Majority impermissibly amends section 18-1.3-405 to add mandatory parole, although it is clear that the legislature only meant discretionary parole. Its interpretation of the statute leads to results that could not have been intended by the legislature— the denial of presentence confinement credit to a mandatory parolee whose parole was unrevoked and who could not afford to make bail. I would affirm the judgment of the court of appeals. Accordingly, I respectfully dissent.
I am authorized to say that Justice BENDER joins in this dissent.