(dissenting):
The majority concludes that Jackson and Cooks, indigents who were confined prior to sentence because of their inability to make bail, are not constitutionally entitled to credit for time served. . It also concludes that Cooks is not entitled to credit for the time he spent in jail while he was appealing his conviction. In making both of these rulings, the majority has failed to come to grips with the appellants’ contention that denial of credit is invidious discrimination on the basis of wealth. I would uphold that contention in both contexts, and therefore I dissent.
A. Pre-sentence detention credit
My brothers recognize that their decision on pre-sentence detention credit is contrary to rulings in other circuits,1 but they say that “binding prior decisions of this court” oblige them to decide as they do. They trace this circuit’s “rule” back to the statement in Gremillion v. Henderson, 425 F.2d 1293 (C.A.5, 1970), that “there is no federal constitutional right to credit for time served prior to sentence.” I disagree. The quoted language, even if it is taken as the true ratio decidendi of the case (a proposition which is open to doubt),2 simply does not dispose of the wealth discrimination argument tendered by Jackson and Cooks. Appellants’ point is not that credit is a substantive constitutional right like the right to counsel or the right to confront witnesses. Rather their point is that the state is extending their confinement on a basis that is invidiously discriminatory. Unequal treatment is the heart of their claims. Gremillion did not address such a contention; indeed, we observed in a footnote that Louisiana’s statute did not “impose an arbitrary classification.” Whether Alabama’s practices have done so is the very question at issue here.
In my view the guiding precedent here is not Gremillion but Hart v. Henderson, 449 F.2d 183 (C.A.5, 1971). We held in Hart that “the inability of an indigent criminal defendant to make bond should not result in extending the duration of his imprisonment beyond the statutory maximum.” 449 F.2d at 185. This result was reached on wealth-discrimination grounds, with particular reference to the Supreme Court’s decisions in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). The petitioner in Hart had been sentenced to the statutory maximum term, and our decision met only the factual situation before us. In a case involving prisoners sentenced to less than the maximum term, however, Hart should govern unless there is some rational justification for retaining the maximum-term limitation.
Before discussing why I believe that no such justification exists, I should stress that the later cases Judge Simpson cites have left this question open. In Hill v. Wainwright, 465 F.2d 414 (C.A.5, 1972), an indigent prisoner sentenced to a maximum term was before us, and we naturally followed Hart. We pointed out that the appellant in Gremillion had not received a maximum sentence, .but so far as appears we were only trying to show that Hart was the precedent with the closest factual resemblance to the *1242case at bar. We did not say or even strongly imply that the duration of a prisoner’s sentence would ultimately prove to be critical. In Cobb v. Bailey, 469 F.2d 1068 (C.A.5, 1972), the only Alabama case in this series, we went considerably out of our way to point out that Cobb had not alleged any facts that might trigger the equal protection analysis undertaken in Hart. We made it clear that if Cobb had not “fail[ed] to allege that after the Alabama Courts allowed bail she was discriminatorily denied the opportunity to make it,” the conclusion that we were “bound by our decision in Gremillion ” would not follow. Moreover, in a dictum which today’s majority overlooks, we specifically recognized that the Gremillion appellant’s less-than-maximum sentence was not a material consideration.3 Finally, Parker v. Estelle, 498 F.2d 625 (C.A.5, 1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975), was decided on the basis of a “presumption” that credit had indeed been given, and we noted in passing that “no unconstitutional basis” for denying credit had been alleged. In short, it is abundantly clear that the issues in this case cannot be evaded on stare decisis grounds.
I can think of only three arguments that might be advanced to support limiting Hart to prisoners with maximum sentences, and none is persuasive.
1. According to Judge Simpson, bailable indigent defendants are entitled to credit only when they have been sentenced to the statutory maximum, because only in that circumstance would denial of credit result “in the imposition of a greater sentence than that determined by the state legislature as necessary to satisfy the states ‘penological interests and policies’ ” (emphasis added). This is too constricted a view. The determination of how much confinement for a particular offense will serve the state’s penological interests is made in the first instance by the legislature, which imposes outer limits. But it is made in the second instance by judges and juries.
In each of the two cases before us, we do not know what factors the jury weighed in deciding on a proper sentence. We can rest assured, however, that it did not take into consideration credit for pre-sentence detention. As Judge Simpson expressly recognizes, Alabama did not at that time authorize such credit to be given. There is no reason to think that Jackson’s jury even knew that he had already been incarcerated for nearly two years. Nor can we assume that Cooks’ jury knew that he had been incarcerated for over nine months.4 The majority is not concerned that denial of the relief appellants seek will result in the imposition of greater sentences than those determined by these two juries “as necessary to satisfy the states ‘penological interests and policies.’ ” If there is some reason we should give more deference to the legislature’s determination than to the jury’s, we are not told what the .reason is.5
2. In its discussion of Parker v. Estelle, supra, the majority appears to derive comfort from the idea that unless the pre-sentence detention time plus the trial court’s sentence exceeds the statutory maximum penalty for the offense, reviewing courts must conclusively presume that the trial court did give credit for time served. In federal criminal cases we have taken this “conclusive presumption” approach since Bryans v. Blackwell, 387 F.2d 764 (C.A.5), cert. denied, 391 U.S. 907, 88 S.Ct. 1658, 20 L.Ed.2d 421 (1967). In Bryans we adopted the view of the District of Columbia *1243Circuit that allowing individual defendants to offer contrary evidence would cause enormous administrative inconvenience.6
Contrary to what the majority implies, we have never held that the giving of credit must be conclusively presumed irrespective of the statutory framework within which a particular sentence was imposed. In Gremillion we expressly declined to decide whether the presumption should apply. And in Parker we embraced no “conclusive” presumption. On the contrary, we weighed the evidence as to whether credit had been given. Both of these cases had arisen in states where pre-sentence detention credit was within the court’s discretion, and where, therefore, some kind of presumption might be appropriate. There is no reason to have such a presumption respecting Alabama prisoners, however, because Alabama has traditionally denied credit to all defendants. Of course, the uniformity of this state’s practice completely undermines the argument based on the alleged inconvenience of investigating whether credit was given in individual cases.
3. Finally, it may be that Hart restricted its holding to prisoners sentenced to maximum terms simply because Williams v. Illinois, supra, had contained a roughly corresponding limitation. As I have said, the Hart court properly limited its holding to the facts before it. But, now that the question is squarely presented, we should recognize that the logic of Williams is not limited to maximum sentences. In Tate v. Short, supra, seven members of the Supreme Court expressly rejected the notion that the Williams doctrine always depends upon an indigent’s being held in custody beyond a statutory maximum period: “ ‘The same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine whether or not the jail term of the indigent extends beyond the maximum term that may be imposed on a person willing and able to pay a fine.’ ” 401 U.S. at 399, 91 S.Ct. at 671, 28 L.Ed.2d at 133. Here, although we are concerned with an indigent’s inability to pay bail rather than a fine, Tate’s admonition is clearly pertinent. Yet the majority does not attempt to explain why the duration of the sentence should make any difference in applying Williams to the facts of this case.
When Williams is analyzed one sees that the factors which originally prompted the Court to confine its rule narrowly have no force here. In that case an Illinois statute allowed a court to impose both (a) a jail term and (b) a fine that would be replaced by an extra term in jail if the defendant could not pay. Williams had received a maximum jail sentence and a fine, but since he was an indigent he was ordered to remain in prison for a period longer than his jail sentence until he had “worked off” the fine at the rate of five dollars per day. The Supreme Court found that “the Illinois statute as applied to Williams works an invidious discrimination solely because he is unable to pay the fine.” 399 U.S. at 242, 90 S.Ct. at 2023, 26 L.”Ed.2d at 593. Accordingly, the Court held “that a State may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine.” 399 U.S. at 243, 90 S.Ct. at 2023, 26 L.Ed.2d at 594.
Why did the Court limit its holding to prisoners serving maximum jail sentences? As I read Williams, the Court was trying to foreclose future suits charging that equal protection was violated because an individual judge had imposed an excessive sentence on account of the accused’s indigency. The Court declared that it would not'inquire into whether a sentencing judge’s exercise of discretion was in some sense tainted by allegedly invidious wealth discrimination.7 Limiting the holding of *1244the case circumvented any threat to sentencing prerogatives, because by hypothesis courts had no discretion to sentence defendants to remain in jail beyond the statutory maximum.
Such reasoning does not support a “statutory maximum” limitation in the instant case. Ordering the state to allow credit for pre-sentence detention would not affront sentencing judges’ or juries’ “wide discretion in the exceedingly difficult task of determining the appropriate punishment in the countless variety of situations that appear,” id., because the juries in these two cases did not have any discretion to allow credit and from all appearances did not do so.8 At the same time, the basic similarity between this case and Williams stares us in the face: Alabama’s procedure, like Illinois’, singles out indigents for the burden of extra-long confinement. They experience this burden whether or not they are ultimately sentenced to the statutory maximum. See King v. Wyrick, 516 F.2d 321, 323 & n. 3 (C.A.8, 1975).
The majority has failed to distinguish this case from Hart in a convincing manner. Certainly the state may take appropriate measures to secure an accused’s presence at trial. If it cannot obtain sufficient monetary security, pretrial confinement is an appropriate means to this end. But I see no state interest that is served by denying credit to persons who experienced that confinement solely because they could not make bail. As a matter of fact, during oral argument we invited counsel for Alabama toj suggest such a possible state interest.' He declined to do so, resting instead on the supposed absence of a pri-ma facie constitutional right.9 From all that appears, therefore, the discrimina*1245tion upheld today is an utterly invidious one, favoring the wealthy over the indigent without any real justification. Our Constitution demands a more generous outlook. Williams v. Illinois, supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
B. Post-sentence detention credit
I now turn more briefly to the issue of post-sentence detention credit. The majority states that Gamble v. Alabama, 509 F.2d 95 (C.A.5), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975), is controlling here. Gamble was, however, a narrowly written opinion. We interpreted Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110 (1904), to mean that if a prisoner has, by electing to remain in a county jail, chosen to delay the execution of his sentence pending appeal, he has only himself to blame if he is then required to serve his full sentence in prison. This was a sort of equitable estoppel theory. Its narrow compass is clearly demonstrated by the fact that we did accord Gamble credit for two periods of post-sentence time he had spent in the county jail — the time between when he was convicted and when he filed his appeal, and also the time between when his conviction was affirmed and when the state transferred him to prison — since these periods of confinement had not resulted from his own choice.
It may be true that Cooks, like Gamble, chose his locus of detention, and if so he cannot now protest about the consequences of his choice. It is also true, however, that Cooks could have avoided being detained at all if he had had the financial resources needed to post bond. This was not true of Gamble, who was not legally eligible for bail.10 Gamble therefore could not and did not dispose of the wealth discrimination argument tendered by Cooks here.
I think my discussion above amply demonstrates that the state’s failure to allow credit to bailable indigents for jail time they serve while their appeals are pending is a violation of the equal protection clause. There is no constitutional bar to Alabama’s confining defendants who are unable to post bail until an appellate decision is reached. By withholding credit, however, the state requires bailable indigents to serve longer sentences than they have received in court, while other bailable convicts can retain their freedom temporarily. Absent a “legitimate, articulated state purpose” for this discrimination, see note 9 supra, it is unconstitutional.
. See King v. Wyrick, 516 F.2d 321 (C.A.8, 1975); Ham v. North Carolina, 471 F.2d 406 (C.A.4, 1971) (semble); Monsour v. Gray, 375 F.Supp. 786 (E.D.Wis.1973); White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio 1972) (three-judge court).
. A portion of the stated rationale of Gremil-lion exposes a significant factual distinction between that case and the instant case. See note 8 infra.
. “It is now urged that Gremillion is distinguishable from the present case because he had been sentenced to less than the maximum term. The Court, however, intimated no such basis for its declaration.” 469 F.2d at 1070.
. Cooks’ brief declares that the jury did not have this information. The state does not deny this statement.
. Certainly Williams v. Illinois, supra, does not support such deference. It was a legislatively enacted scheme for “working off” fines that Williams struck down.
. See Stapf v. U. S., 125 U.S.App.D.C. 100, 367 F.2d 326 (1966).
. The Court’s position was consistent with the resistance it has always shown to appellate review of criminal sentences on the merits. *1244Cf. Dorszynski v. U. S., 418 U.S. 424, 440-41, 94 S.Ct. 3042, 3051, 41 L.Ed.2d 855, 867 (1974).
. Here the difference between this case and Gremillion becomes apparent. We pointed out in Gremillion that under then-prevailing Louisiana law the sentencing judge had complete discretion to grant or deny pre-sentence detention credit. It seems that the opinion rested on two premises: (a) Both rich and poor were equally subject to this discretion. Hence we could properly say there (but not here) that the state’s procedures did not “impose an arbitrary classification.” 425 F.2d at 1294 n. 4. (b) A particular exercise of sentencing discretion is ordinarily not open to constitutional attack. This is precisely what Williams declared a short while afterwards, but it has nothing to do with the instant case, since discretion is not implicated here.
At the risk of belaboring the point, I submit that Gremillion is distinguishable from this case. The majority decides otherwise only because it has seized on an isolated phrase therein — “no federal constitutional right” — instead of analyzing the opinion’s reasoning.
. The majority claims in a footnote that “it is not unreasonable to conclude” that reducing prisoners’ terms in the penitentiary might frustrate the state’s rehabilitative efforts, since the penitentiaries have rehabilitation programs and the jails have none. With deference I must point out that the majority is indulging in sheer speculation. At no time in these proceedings has the state suggested that it denies pre-sentence detention credit for the sake of rehabilitation. The majority’s argument therefore fails the equal protection test set forth in the very case Judge Simpson invokes: we must “inquire only whether the challenged distinction rationally furthers some legitimate, articulated state purpose.” McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059, 35 L.Ed.2d 282, 289 (1973) (emphasis added). I also wonder how this supposed state interest could make a decisive difference here if it was not decisive- in Hart; the impact of credit on rehabilitative efforts is surely the same for prisoners who are serving maximum sentences and prisoners who are not.
The failure of the state to make the argument that Judge Simpson makes for it is perhaps understandable. A federal district court closer to the situation then we are has recently found that the Alabama prison system has “very few rehabilitation programs,” and that even these “are totally inadequate to provide reasonable opportunities for rehabilitation — or even to prevent physical and mental deterioration — of most of the prison population.” James v. Wallace, 406 F.Supp. 319, 326 (M.D. Ala.1976). I am not trying to prejudge the merits of James. 1 merely desire to point out that if we adjudicate cases like this through guesswork we run a considerable risk of guessing wrong.
Applying the McGinnis test once more, 1 should mention one state interest that is indeed “articulated” but does not seem to qualify as “legitimate.” The historic basis for Alabama’s refusal to allow pre-sentence detention credit was stated 80 years ago in Ryan v. State, 100 Ala. 105, 14 So. 766 (1894): confinement before trial is not “punishment”. For my part, I am not persuaded that pretrial con*1245finement of nine months, let alone two years, can be casually dismissed as merely one of the costs of being bound over for trial on criminal charges. Be that as it may, Hart again forecloses any contention that this state interest is substantial enough to withstand the wealth discrimination argument raised here.
. He had been sentenced to a 30-year term, and he elected a “direct” appeal under Tit. 15, Code of Ala. § 372 (Recomp. 1958). That provision, however, does not authorize bail for those whose sentence exceeds 20 years. All these facts are stated in the Gamble opinion, 509 F.2d at 96.