dissenting: Because I believe that the trial court erred by failing to credit the defendant’s sentence with the time he was incarcerated in Florida while contesting extradition to New Hampshire, I respectfully dissent.
When this court interprets a statute, “we examine the statutory language itself and construe the law consistently with its plain meaning.” Penrich, Inc. v. Sullivan, 140 N.H. 583, 589, 669 A.2d 1363, 1367 (1995). Under the language of the statute, the defendant is entitled to credit for “[a]ll the time actually spent in custody,” RSA 651:3 (1996), in “the state prison, any house of correction, any jail or any other place.” RSA 651-A:23 (1996). The statute makes no distinction between out-of-state and in-state custody, and I see no reason to change the plain meaning of RSA 651:3 by reading into it an exception for the time a prisoner has spent in the custody of another State pursuant to an arrest for a New Hampshire offense. Accord State v. Mahler, 626 P.2d 593, 594 (Ariz. 1981); State v. *199Mattson, 376 N.W.2d 413, 416 (Minn. 1985); State v. Brown, 780 P.2d 880, 890 (Wash. Ct. App. 1989), review denied, 791 P.2d 897 (Wash. 1990). “When the language used in a statute is clear and unambiguous, its meaning is not subject to modification by judicial construction.” State v. Flynn, 123 N.H. 457, 462, 464 A.2d 268, 271 (1983). As we have often said, “legislative intent is to be found not in what the legislature might have said, but rather in the meaning of what it did say.” Appeal of Astro Spectacular, 138 N.H. 298, 300, 639 A.2d 249, 250 (1994) (quotation omitted). If the legislature had intended to limit pretrial credit to time served in a New Hampshire jail or facility, it could have said so explicitly.
The State argues, and the majority agrees, that the defendant was not under the control of New Hampshire authorities while he was incarcerated in Florida, and, therefore, he was not “in custody” under RSA 651:3. The New Hampshire charges, however, were the sole reason for the defendant’s incarceration in Florida. See Birden v. Dept. of Correctional Serv., 521 N.Y.S.2d 909, 910 (App. Div. 1987) (defendant entitled to credit when incarceration in New Jersey was “solely by reason of the New York detainer”). The time the defendant served in Florida was attributable solely to the New Hampshire offense for which he was later convicted and sentenced, and Florida was, for all intents and purposes, acting as New Hampshire’s agent when it incarcerated him. While the State constructs an inventive argument focusing upon the outer limits of New Hampshire’s control over this defendant,
[i]n the real world this [defendant] was . . . subject to the jurisdiction of this state while he was held in Florida, because . . . his incarceration was . . . within the control of this state, subject to continuance or termination solely at its command.
Johnson v. Manson, 493 A.2d 846, 859 (Conn. 1985) (Shea, J., dissenting), cert. denied, 474 U.S. 1063 (1986).
The State also argues that the pretrial confinement credit statute is inapplicable because the defendant was not awaiting trial, but was instead awaiting extradition. See RSA 651-A:23. The State contends that “[s]inee the attempt to extradite the defendant could have proven unsuccessful, he was not ‘awaiting . . . trial’ until the extradition was completed.”
A State’s extradition powers flow from the United States Constitution:
A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another *200state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
U.S. CONST. art. IV, § 2, cl. 2. While a defendant has the right to judicial review of his extradition, the inquiry is exceedingly limited. A court may only consider:- “(a) whether the extradition documents on their face are in order; (b) whether [the accused] has been charged with a crime in the demanding state; (c) whether [the accused] is the person named in the request for extradition; and (d) whether [the accused] is a fugitive.” Cuyler v. Adams, 449 U.S. 433, 443 n.11 (1981) (quotation omitted).
If the State properly fills out the paperwork and does not attempt to extradite people who have not committed crimes in New Hampshire, there is hardly a realistic likelihood that the attempt to extradite the defendant will prove unsuccessful. Furthermore, the State apparently grants pretrial confinement credit to defendants while they await a competency hearing, a probable cause determination, indictment, or numerous other pretrial determinations even though it is equally or even more likely that the State’s attempts to bring the accused to trial will be thwarted in these circumstances. It is not apparent that time spent in jail during an extradition proceeding is different from, time spent awaiting any other preliminary stage of a criminal proceeding. Cf. Palmer v. Dugger, 833 F.2d 253, 256 (11th Cir. 1987) (“we perceive no distinction in principle between the presentencing incarceration of an indigent criminal defendant in the state where he will be tried and his presentencing detention in another state while awaiting extradition”); Johnson, 493 A.2d at 858 (Shea, J., dissenting) (“when a person is confined during the period necessary for disposition of a criminal charge, time passes no more swiftly awaiting the resolution of one step of the process than another”). The arbitrary exclusion of the time spent awaiting extradition, when credit is granted for every other preliminary phase of trial, finds no support in the language of the statute or the policies that undergird it.
The majority takes a slightly different approach to the “awaiting trial” issue, arguing that granting credit to this defendant would require modification of “RSA 651-A:23 by adding the words ‘while awaiting extradition.’” The unstated assumption behind this putative dichotomy is the debatable notion that one cannot be “awaiting extradition” while “awaiting trial.” Taken to its extreme, the majority’s argument would also deny credit to those who are “awaiting indictment,” “awaiting arraignment,” or “awaiting a *201competency determination.” It is always possible to slice off some preliminary phase of a criminal proceeding and announce that the time was not spent “awaiting trial.” This arbitrary application of labels has, however, been eschewed by this court in the past, as we have noted that application of a label “does not alter or diminish [the event’s] consequence to the defendant. Credulity is strained to say that it does.” State v. Corson, 134 N.H. 430, 433, 593 A.2d 248, 250 (1991) (addressing classification of offenses for purposes of appeal to superior court); see also State v. Goodnow, 140 N.H. 38, 41, 662 A.2d 950, 952 (1995) (addressing classification of offenses for double jeopardy purposes). Substantive evaluation of the character of the time period in question compels the conclusion that time spent awaiting extradition is time spent under the control of the State prior to trial, and the defendant is therefore entitled to credit.
Although not addressed by the majority, the State further argues that when a defendant is incarcerated as a fugitive from justice, the basic principles underlying pretrial confinement credit do not apply. Specifically, the State points to our decision in State v. Decker, 127 N.H. 468, 503 A.2d 796 (1985), in which this court stated that
[o]ne principle underlying the credit statutes is that an indigent offender unable to furnish bail should serve no more and no less time in confinement than an otherwise identically situated offender who succeeds in furnishing bail.
Id. at 470, 503 A.2d at 797 (emphasis added); see also King v. Wyrick, 516 F.2d 321, 323 (8th Cir. 1975) (Federal Constitution mandates this rule). The State argues that because “[a] fugitive from justice typically has no right to bail” and is “incarcerated for reasons other than indigency, the rationale for credit disappears.” While the State would have us recast our explanation of “one principle” as the statute’s sole underlying principle, there is no reason why this court should foreclose future consideration of the other legitimate objectives that underlie the statute. See, e.g., People v. Chamberlain, 358 N.W.2d 572, 575 (Mich. Ct. App. 1984) (noting that “primary purpose of the sentence credit statute is that of preventing the unnecessary chilling of the exercise of the right to trial”); Ex Parte Green, 688 S.W.2d 555, 557 (Tex. Crim. App. 1985) (stating that credit statute recognizes pretrial confinement “has an incidental punitive effect in that it deprives the detainee of his liberty”). Moreover, because inmates awaiting extradition in Florida are eligible to be released on bail, see Fla. Stat. ch. 941.16 (1995) (bail allowable unless crime charged is punishable by death or life *202imprisonment); accord RSA 612:16 (1986) (same), Decker weighs against announcing a rule that would primarily affect those who, for reasons of indigency, are unable to obtain their release in the asylum State. This court observed in Decker that the credit statute “mandate[s] that a prisoner is to receive credit for all jail time — neither more nor less — served before sentencing which relates to the criminal episode for which the prisoner is sentenced,” and there is no need to abandon this rule in the present case. Decker, 127 N.H. at 471, 503 A.2d at 798 (emphasis added) (quotation omitted).
Even if we assume that defendants who violate their probation are routinely denied bail because of the flight risk they pose, the pretrial confinement statute still serves an important role that this court did not have reason to discuss in Decker. Specifically, the statute ensures that similarly situated defendants are incarcerated for similar lengths of time, regardless of where they are resentenced. In the absence of the pretrial confinement credit scheme, similarly situated probationers who are subject to identical sentences could be imprisoned for vastly different lengths of time, depending on the length of the local trial court’s docket and the prosecutor’s and public defender’s caseloads. In Decker, we specifically rejected an interpretation of the statute that would have resulted in disparate lengths of incarceration, Decker, 127 N.H. at 470, 503 A.2d at 797, and this rationale weighs against denying credit in this instance.
Furthermore, denying credit solely to those who contest extradition is fraught with potential constitutional problems. Cf. White v. Lee, 124 N.H. 69, 77-78, 470 A.2d 849, 854 (1983) (“[a] statute will not be construed to be unconstitutional where it is susceptible to a construction rendering it constitutional”). “If a defendant were denied credit for time spent in jail solely because he was resisting extradition it would seriously penalize a person for exercising his [constitutional] right to resist extradition.” In re Watson, 566 P.2d 243, 248 (Cal. 1977); see also Blackledge v. Perry, 417 U.S. 21, 28 (1974) (due process violated when defendants are punished for exercising their rights). Additionally, by not limiting its holding to those who are denied bail in the asylum State, the majority exposes the pretrial credit statute to future constitutional attack as its interpretation of the statute will often deny credit to defendants who are not released in the asylum State solely because they could not afford to pay for their freedom. See Palmer, 833 F.2d at 255-56 (Federal Constitution requires out-of-state pretrial credit towards maximum sentence when inmate was unable to obtain release in asylum State solely because of indigency); Faye v. Gray, 541 F.2d *203665, 667-68 (7th Cir. 1976) (Federal Constitution requires pretrial credit toward sentence of extradited indigent defendant, regardless of whether he received maximum sentence). While the State contends that denying pretrial confinement credit to those who contest extradition m,erely forces defendants to make a “choice,” in this case the defendant’s decision to exercise his constitutional right to contest the extradition will result in several additional months of incarceration. Such a result “must inevitably operate to discourage the free exercise of that constitutional right,” Johnson, 493 A.2d at 860 (Shea, J., dissenting), and, in reality, represents no choice at all.
I would therefore hold that under the statute the defendant is entitled to credit for all of the time he was in physical custody prior to trial, even if a portion of that time was served in another State’s penal system. Accord People v. Hardman, 653 P.2d 763, 764 (Colo. Ct. App. 1982); State v. Mason, 900 P.2d 172, 180-81 (Haw. Ct. App.), cert. denied, 902 P.2d 976 (Haw. 1995); People v. Gibson, 300 N.W.2d 500, 501-02 (Mich. Ct. App. 1980) (per curiam). I do not suggest that a defendant would be entitled to credit if the time served in the foreign jurisdiction was the result of unrelated crimes committed within that jurisdiction. See State v. Coe, 554 A.2d 656, 658-59 (Vt. 1988). Similarly, this court need not address at this time whether such credit would be appropriate in a situation in which a defendant is an escapee, as opposed to a probation violator. See Beauchamp v. Murphy, 37 F.3d 700, 706-07 & n.5 (1st Cir. 1994) (noting that Massachusetts gives credit to extradited parolees, but not to escaped prisoners), cert. denied, 115 S. Ct. 1365 (1995). The pretrial credit statute, however, arguably has no applicability to escapees, as such defendants have been conclusively tried and sentenced, as contrasted with a defendant who has yet to be sentenced or a probationer over whom the trial court “retain[s] jurisdiction to limit the defendant’s liberty interest further .... [because] the sentencing function [has] not ended . . . .” State v. White, 131 N.H. 555, 558, 556 A.2d 308, 311 (1989).
Key to this case is the simple fact that the pretrial credit statute makes no distinction between out-of-state and in-state custody, and I see no reason to change the plain meaning by reading into it an exception for the time a prisoner has spent in the custody of another State pursuant to an arrest for a New Hampshire offense. If the State wishes to punish defendants who flee the jurisdiction, the legislature can enact separate criminal provisions. Cf. RSA 642:6, I (1996) (“[a] person is guilty of an offense if he escapes from official custody”). There is no need to achieve the State’s policy objectives *204through judicial amendment of the pretrial credit statute. Accordingly, I respectfully dissent.
HORTON, J., joins in the dissent.