dissenting:
I respectfully dissent.
*256This case presents one narrow question: whether the Fourteenth Amendment requires a state court to give credit against the sentence of an indigent prisoner, who received less than the statutory maximum prison term, for the preconviction time that the prisoner served in jail because of his inability to post bail. I would hold that it does.
In Williams v. Illinois, 399 U.S. 235, 236, 90 S.Ct. 2018, 2019, 26 L.Ed.2d 586 (1970), the Supreme Court held that the Equal Protection Clause prohibits a state from incarcerating a defendant for longer than the statutory maximum prison term because of his inability to pay the fine component of his sentence. Unlike the majority in the case at bar, the Supreme Court in Williams did not discuss whether the defendant belonged to a suspect class or Whether the imprisonment infringed on a fundamental right. The Williams court simply held that when an indigent prisoner would end up serving a prison term longer than the statutory maximum, converting a fine into imprisonment works an “invidious discrimination”:
“By making the maximum confinement contingent upon one’s ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.”
Id. at 242, 90 S.Ct. at 2023 (footnote omitted).
The following year, the Supreme Court, in Tate v. Short, 401 U.S. 395, 399, 91 S.Ct. 668, 671, 28 L.Ed.2d 130 (1971), held that a court could not subject a defendant to imprisonment for inability to pay a fine when the statute provided that a fine was the only possible punishment for those defendants able to pay. The Court held that this practice constituted the same invidious discrimination as the practice in Williams, because the defendant “was subjected to imprisonment solely because of his indigen-cy.” Id. at 397-98, 91 S.Ct. at 670. The Tate court stated its holding in terms broad enough to uphold petitioner’s assertion in the instant case:
“ ‘[T]he 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 fine is accompanied by a jail term and 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. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.’ ”
Id. at 398, 91 S.Ct. at 671 (quoting Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 2233, 26 L.Ed.2d 773 (1970) (White, J., concurring)) (emphasis added); see also Bearden v. Georgia, 461 U.S. 660, 667, 103 S.Ct. 2064, 2069, 76 L.Ed.2d 221 (1983) (repeating “whether or not” language quoted in Tate, in case involving revocation of parole for inability to pay fine and restitution). The essence of the holdings in Williams, Tate, and Bearden, therefore, does not rest on the notion that a prisoner suffers a constitutional violation only if his total time in prison exceeds the statutory maximum punishment for a crime, as the majority would have it.
The courts have had little difficulty converting the Williams and Tate holdings to the bail context. Several circuits have held that indigents must be credited for precon-viction prison time if the total time they would serve would exceed the statutory maximum. See, e.g., Crowden v. Bowen, 734 F.2d 641, 642 (11th Cir.1984); Matthews v. Dees, 579 F.2d 929, 931 (5th Cir.1978); Hook v. Arizona, 496 F.2d 1172, 1174 (9th Cir.1974). Apparently the majority in the instant case would agree that Williams and Tate mandate such a result. See ante, at 253-54. The majority, however, would ignore the dictum in Tate, see 401 U.S. at 398, 91 S.Ct. at 670, and confine the rule to cases involving the statutory maximum punishment.
*257The majority recognizes, in a footnote, that we are not the first court to address the precise issue presented in this case. See ante, at 253 n. 3. Of the federal cases, only the Fifth Circuit, over a strong dissent by Judge Godbold, has found no federal constitutional right to credit for time served prior to sentence in a case in which the maximum term was not given. Jackson v. Alabama, 530 F.2d 1231, 1235, 1237 (5th Cir.1976); id. at 1241-45 (Godbold, J. dissenting). More persuasive, I believe, are the opinions holding, as I would, that an indigent defendant is entitled to credit for his preconviction confinement even when he is sentenced to less than the statutory maximum term. In King v. Wyrick, 516 F.2d 321, 323 (8th Cir.1975), the Eighth Circuit recognized that
“equal protection considerations obtain as well in the case of an indigent prisoner who is denied jail time credit on a prison term less than the allowable maximum prescribed by statute. He still must serve a longer term in connection with the offense than .would a wealthier prisoner who is sentenced to the same term but who is able to meet bail to avoid incarceration before trial and sentencing.”
Accord Ham v. North Carolina, 471 F.2d 406, 407, 408 (4th Cir.1973); Johnson v. Riveland, 620 F.Supp. 1425, 1426 (D.Colo.1985), vacated on other grounds, 855 F.2d 1477 (10th Cir.1988); Godbold v. Wilson, 518 F.Supp. 1265, 1268-69 (D.Colo.1981); Durkin v. Davis, 390 F.Supp. 249, 253-54 (E.D.Va.1975), dismissed on other grounds, 538 F.2d 1037 (4th Cir.1976); Mohr v. Jordan, 370 F.Supp. 1149, 1152-54 (D.Md.1974); see also Vickers v. Haynes, 539 F.2d 1005, 1006 (4th Cir.1976); United States v. Gaines, 449 F.2d 143, 144 (2d Cir.1971); Monsour v. Gray, 375 F.Supp. 786, 788 (E.D.Wis.1973); White v. Gilligan, 351 F.Supp. 1012, 1014 (S.D.Ohio 1972) (3 judge court); Workman v. Cardwell, 338 F.Supp. 893, 899 (N.D.Ohio), vacated, 471 F.2d 909, 911 (6th Cir.1972), certs. denied, 412 U.S. 932, 93 S.Ct. 2748 & 2762, 37 L.Ed.2d 161 (1973). In a similar case, the Seventh Circuit has held: “To ‘consider’ the presentence custody ... but leave the sentence unchanged, as the sentencing judge did here, was tantamount to increasing the sentence in violation of [the defendant’s] equal-protection rights.” Johnson v. Prast, 548 F.2d 699, 703 (7th Cir.1977).
Once the correct rule of law from Williams and Tate is applied, the question presented by this case is not a difficult one. Although recognizing that petitioner had served 284 days in jail before conviction because of his inability to post bail, the sentencing judge expressly refused to credit petitioner for his time served. Converting the Supreme Court’s statement in Tate to the bail context: “ ‘[T]he same constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make [bail] ... whether or not the jail term of the indigent extends beyond the maximum term that may be imposed....’” Tate, 401 U.S. at 398, 91 S.Ct. at 670 (quoting Morris, 399 U.S. at 509, 90 S.Ct. at 2233 (White, J., concurring)). Therefore, petitioner is entitled to a credit for the jail time he served before his conviction, even though the court sentenced him to a lesser prison term than the statutory maximum.
The question in this case is not whether a defendant always has a constitutional “right” to have preconviction time credited against the eventual sentence. Rather, the question is whether an indigent defendant suffers invidious discrimination in violation of the Equal Protection Clause when the court expressly refuses to credit preconviction incarceration time, even though a wealthier defendant could have posted bail and thus would serve less time in prison, for the same offense, than the indigent defendant. A fair interpretation of the Supreme Court’s words in Williams, Tate, and Bearden requires holding that denial of such credit violates the Equal Protection Clause.1
*258Even under the majority’s test for determining when a wealth-based classification violates an indigent defendant’s equal protection rights, see ante, at 252, I would find a violation. It seems to me that petitioner has proved exactly what he must— that he was financially unable to post the bail required for his preconviction freedom (the desired benefit) and as a result was absolutely deprived of the ability to enjoy that desired benefit.
The majority takes solace in the sentencing judge’s statement, made when imposing sentence, that he had considered petitioner’s preconviction incarceration. See ante, at 253, 254, 255. But the majority misconstrues the judge’s words, and by ignoring half of what he said, makes it appear as if the judge did something he expressly did not do. As the majority correctly notes, the judge said, “consideration was given for the time the defendant was incarcerated pending sentence on the present charges.” See ante, at 251. But he also stated, “The court does not credit the defendant with any time previously served.” Id. To me, these statements mean that although the sentencing judge recognized that petitioner had served 284 days in jail before his conviction, the judge declined to credit this time against the sentence he had decided was appropriate.
The majority, however, seems to hold that even though the judge expressly stated that he did not credit petitioner for time served, he probably did so anyway, because he sentenced petitioner to less than the statutory maximum: “By considering the time Vasquez spent in jail in determining the length of sentence, the judge effectively put Vasquez in the same position as those who were released on bail.... By considering the presentence time the judge actually equalizes the [indigent and wealthy] defendants’ treatment.” Ante, at 253. Unless we are to disregard the sentencing judge’s plain statement that he did not credit petitioner for the preconviction time served, I do not see how the majority can come to the conclusion that it does. As another circuit court has stated, “it strains logic to suggest that the sentencing judge, who unequivocally stated he was not allowing jail time credit, would in the very same sentencing proceeding contradict himself and in effect grant such credit by supposedly taking into account petitioner’s jail time_” King, 516 F.2d at 325.
The majority opinion appears to be adopting a conclusive presumption that so long as the sentence is less than the statutory maximum, a reviewing court must presume that the judge credited a defendant for preconviction time served. See Stapf v. United States, 367 F.2d 326, 330 (D.C.Cir.1966). Of course, the judge’s statement that he was not crediting petitioner for time served clearly would rebut any presumption that might be applied, except for a “conclusive” unrebuttable presumption. See Faye v. Gray, 541 F.2d 665, 668-69 (7th Cir.1976); King, 516 F.2d at 324. I have problems with any presumption at all because of the different fact situations that can be imagined and are certain to show up in cases at some future time. I would, therefore, join the Seventh Circuit in holding that there is no presumption, conclusive or rebuttable, in this area. See Johnson, 548 F.2d at 703.
I recognize that the credit demanded by my interpretation of the Equal Protection Clause can easily be circumvented by sentencing judges who intend to sentence a defendant to less than the statutory maximum period of incarceration. For instance, *259suppose the indigent defendant has been incarcerated one year for failure to make bail before conviction, the statutory maximum sentence is ten years, and the sentencing judge determines that the state’s penological interests would be satisfied by a prison term of five years; the judge could simply announce a six-year sentence and credit the one year served, thereby circumventing the indigent defendant’s equal protection rights. Even so, I agree with Judge Kane of the United States District Court for the District of Colorado “that it is still mandatory that the sentencing judge explicitly credit such a defendant for presentence confinement. Otherwise, there is a serious danger that the constitutional right will become completely illusory.” Godbold, 518 F.Supp. at 1269 (footnote omitted).
Defendants unable to post the bail that a judge believes necessary to ensure a defendant’s presence at trial may be jailed while awaiting trial, of course. But this hardly compels the conclusion that such a defendant is not entitled to have that time credited against the eventual sentence imposed, even when that sentence is less than the statutory maximum. The majority is mistaken, I believe, in limiting the equal protection rights expressed in Williams and Tate to cases in which the indigent defendant would otherwise serve a prison term greater than the statutory maximum. Even under the rational basis analysis that the majority feels compelled to apply, I would find that no state interest is served by imprisoning indigent defendants longer than wealthier ones. See Jackson, 530 F.2d at 1242-44 (Godbold, J., dissenting).
My conclusions employing equal protection analysis are equally applicable to due process analysis. As the Supreme Court has noted, when considering the criminal justice system’s treatment of indigents, equal protection analysis and the fundamental fairness question under due process are “substantially similar.” Bearden, 461 U.S. at 666, 103 S.Ct. at 2069.
Therefore, I dissent.
. I realize that cases may exist in which bail is set so high that even wealthy persons cannot meet it. Such cases may not be as amenable to equal protection analysis because the presence of a class subject to invidious discrimination is not as clear — that is, a class is not being denied *258rights simply because of financial impoverishment. Without deciding whether such persons constitute a subject class protected under equal protection or due process analysis, and thus have a constitutional right to credit for time served, I believe a principled basis exists for distinguishing, in the bail context, between the truly indigent and persons of greater means. In posting bail for wealthier people judges can set bail at a level the detainee can meet, but which provides a strong incentive to return for trial. The judge does not have this option with poor people, because if bail is set at an affordable level (e.g., $ 1), a sufficient incentive to return is not created. Thus, for nearly any bail the truly indigent may remain in prison simply because he does not have anything to post as collateral. Therefore, the system of bail may work a much greater hardship on indigents and the recognition of an "invidious class” is appropriate in that context.