dissenting.
¶26 I dissent from the majority’s opinion and order granting MacPheat’s petition for a writ of habeas corpus and remanding the matter to the District Court. The United States Supreme Court has spoken on this issue and in my view we are bound by its decision, since MacPheat does not raise an independent claim under the Montana Constitution. I further believe the majority’s reliance on MacFarlane v. Walter (9th Cir. 1999), 179 F.3d 1131, is problematic. ¶2 7 The United States Supreme Court has held that a state may decline to give good-time credit for pre-trial jail detention periods even *55when doing so causes indigent defendants who could not make bail serve longer actual jail time than those defendants who were able to make bail as long as there is a rational basis for the scheme. See McGinnis v. Royster (1973), 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282. As the majority acknowledges, the holding of McGinnis has not been overruled and has recently been applied in two circuit court decisions to uphold state sentencing schemes against the same sort of equal protection challenge that MacPheat raises in the case at bar. See MacPheat v. Mahoney, supra, at ¶ 13 (opinion of majority) (citing Lemieux v. Kerby (10th Cir. 1991), 931 F.2d 1391; Chestnut v. Magnusson (1st Cir. 1991), 942 F.2d 820).
¶28 The majority suggests that we “give deference ” to the lone opinion of the Ninth Circuit in MacFarlane while at the same time acknowledging that the Supreme Court decision in McGinnis has not only not been subsequently overruled, but has been followed by two federal circuit courts. MacPheat, supra, at ¶ 20.1 cannot distinguish MacFarlane from McGinnis, either factually or legally. Therefore, I think the Ninth Circuit clearly erred in not following McGinnis and I would not propagate the error any further.
¶29 As in McGinnis, the petitioners in MacFarlane were indigent and unable to post bail and therefore served time in a county detention center prior to trial and sentencing. They claimed that as a result of their inability to post bail, they were denied due process and equal protection of the laws under a state scheme which prevented county pre-sentence detainees from earning the same early-release credits as those defendants who were able to post bail and thus serve their entire sentences in a state facility. Instead of simply applying McGinnis and denying the petitioner’s appeal, the Ninth Circuit analyzed the issue under Bearden v. Georgia (1983), 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221.6
¶30 The only acknowledgment of McGinnis appears in a footnote in which the Ninth Circuit claimed that “McGinnis is informative, but distinguishable” because it was “not about indigency.” MacFarlane, 179 F.3d at 1140 n.11. However, McGinnis was clearly about *56indigency. Both petitioners in McGinnis served part of their sentences in county detention centers because they were unable to post bail. McGinnis, 410 U.S. at 266-67,93 S.Ct. at 1057. Moreover, as the Supreme Court observed, “Appellees contend that denying state prisoners good-time credit for the period of their pre-sentence incarceration in a County jail... violates equal protection of the laws and discriminates against those state prisoners unable to afford or otherwise qualify for bail prior to trial.” McGinnis, 410 U.S. at 268, 93 S.Ct. at 1058 (quotations omitted). McGinnis is clearly not distinguishable from MacFarlane based on the indigency of the petitioners. Rather, the essence of the McGinnis opinion is that a state early-release scheme that may have a disparate impact on indigent defendants nonetheless does not violate the Equal Protection Clause as long as that scheme is rational.
¶31 Under the analysis set forth by the United States Supreme Court, I believe Montana’s good-time statute has a rational basis. The legislature could have rationally decided to limit good-time credit to inmates in the state correctional facility because incarceration at a state correctional facility affords state officials with increased opportunities for evaluating an inmate’s behavior and rehabilitative progress. See McGinnis, 410 U.S. at 274, 93 S.Ct. at 1061. The legislature also could have concluded that a sufficient incentive for good behavior in a pretrial detention setting is provided by the prospect of being sentenced to a longer term based on a detainee’s behavior while so incarcerated and that no such incentive exists for a prisoner already sentenced to a correctional facility. See Chestnut, 942 F.2d at 824. Likewise, the legislature may have concluded that its good-time statute serves the purpose of rehabilitation, a process which cannot logically begin until after a conviction has been obtained. See Lemieux, 931 F.2d at 1394.
¶32 Accordingly, for the aforementioned reasons, I would deny MacPheat’s petition for writ of habeas corpus.
CHIEF JUSTICE TURNAGE and JUSTICE GRAY join in the dissenting opinion of Justice Regnier.. In Bearden, the Court applied the “fundamentally unfair or arbitrary test to hold that a probationer’s probation could not be revoked simply because he was unable to pay a fine absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were somehow inadequate. Bearden, 461 U.S. at 666,103 S.Ct. 2064.