concurring in part and dissenting in part.
I concur in the holding that the lower court’s ruling is due to be reversed. I dissent from the majority’s computation of credit due Matthews for pretrial confinement.
It seems to me that we are over complicating what should be a fairly simple rule. The constitutional principle which underlies Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 568 (1970), and the line of related authorities is that a person ordinarily should not be imprisoned solely as a result of his indigency. When his sentence is meted out, an indigent who has been confined prior to trial, solely because he could not post bond, is entitled to credit for such pretrial confinement.
Because judges are presumed to follow the law, we conclusively presume in federal prosecutions in which the total of the sentence and the pretrial confinement is less than the maximum that a sentencing judge takes pretrial confinement into account in setting the sentence. Bryans v. Blackwell, 387 F.2d 764 (5th Cir. 1967), cert. denied 391 U.S. 907, 88 S.Ct. 1658, 20 L.Ed.2d 421 (1968); Landman v. Mitchell, 445 F.2d 274 (5th Cir. 1971), cert. denied 404 U.S. 1022, 92 S.Ct. 695, 30 L.Ed.2d 671 (1972). In Bryans we adopted the District of Columbia Circuit’s prior statement of this rule:
Whenever it is possible, as a matter of mechanical calculation, that credit could have been given, we will conclusively presume it was given.1
The presumption fails when an accused indigent is sentenced to the statutory maximum after having served pretrial confinement. Hill v. Wainwright, 465 F.2d 414 (5th Cir. 1972). The majority views this case as falling somewhere in between. I do not.
The majority is correct in recognizing that the rule of Williams is limited to a prohibition of confinement beyond the maximum by reason of indigency.2 Shortly after Williams, however, the Supreme Court also decided Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) in which it made clear that imprisonment solely by reason of indigency is constitutionally impermissible. The Tate rule is not limited to imprisonment in excess of the statutory maximum. I cannot perceive any basis for applying the constitutional principle in a different manner here than when the maximum sentence is imposed. Because his sentence plus his pretrial confinement exceeds the maximum we know with equal certainty that the sentencing judge did not give Matthews credit for the pretrial confinement.
I would hold that the Equal Protection Clause requires that Matthews be given credit for all pretrial confinement served as a result of his indigency. Half a loaf is not an adequate remedy when constitutional rights have been transgressed.
. Stapf v. United States, 125 U.S.App.D.C. 100, 104, 367 F.2d 326, 330 (1966).
. Williams dealt with imprisonment for nonpayment of a fine. In that case the accused was also sentenced to confinement for the maximum period.