dissenting:
I respectfully dissent. The prior decisions of this court notwithstanding, the petitioner in this case has a constitutional right under equal protection of the laws, U.S.Const. Amend. XIV; Colo.Const. Art. II, Sec. 25,1 to credit for 174 days of presen-tence confinement on the minimum and maximum terms of his sentence.
I.
Beginning with People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971), this court has held that while sentencing courts should consider the length of presentence confinement, there is no constitutional right to credit for that period of confinement. See, e. g., Perea v. District Court, Colo., 604 P.2d 25 (1979); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Nelson, 182 Colo. 1, 510 P.2d 441 (1973); section 16-11-306, C.R.S.1973 (1978 Repl.Vol. 8). However, a careful consideration of the holdings of the United States Supreme Court 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), leads inexorably to the conclusion that the denial of credit to an accused, such as petitioner, who is subject to presentence confinement because of financial inability to make bail,2 is a discrimination which deprives him of a basic liberty interest because of poverty and such discrimination is not necessary to the attainment of any compelling governmental interest.
In Williams v. Illinois, supra, the United States Supreme Court held that a convicted indigent defendant could not be held in confinement beyond the statutory maximum term of imprisonment authorized by an Illinois statute because of his failure to pay a fine imposed conjointly with his sentence. The Illinois statute provided that a person who was unable to pay the fine could “work it off” at the rate of five dollars per day by remaining in jail after the expiration of his sentence. The Supreme Court held that the statutory scheme worked an invidious discrimination based solely on economic status:
“On its face the statute extends to all defendants an apparently equal opportunity for limiting confinement to the statutory maximum simply by satisfying a money judgment. In fact, this is an illusory choice for Williams or any indigent who, by definition, is without funds. Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. 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 incarcera*866tion in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment.” 399 U.S. at 242, 90 S.Ct. at 2023, 26 L.Ed.2d at 593-94.
Tate v. Short, supra, extended the Williams rationale to a “fines only” penalty scheme which nevertheless required incarceration for a sufficient time to satisfy the fine at a per diem rate. The Supreme Court held that the statutory ceiling on the fine amount “cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine.” 401 U.S. at 399, 91 S.Ct. at 671, 28 L.Ed.2d at 133-34.
Both Williams and Tate attest to a constitutional prohibition of discriminatory treatment of indigent defendants that has been consistently applied over the years. See, e. g., Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (indigent defendant’s right to counsel on first appeal); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (indigent defendant’s right to counsel at trial); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (indigent defendant’s right to free transcript on appeal). It is but a logical extension of this prohibitory principle to the rule that an indigent defendant may not be confined longer than a non-indigent because of economic inability to post bail. Under equal protection analysis any distinction between the post-conviction incarceration of an indigent beyond the expiration of a sentence because of an inability to pay a fine and the refusal to credit a convicted indigent with presentence confinement incurred because of an inability to post bail is illusory. In both instances the indigent is forced to serve a longer term in prison than the non-indigent solely because of his poverty. Such a differential in treatment is an invidious discrimination that flouts one of the central aims of our criminal justice system—equal treatment under law.
The majority of federal and state courts that have considered this issue in recent years have accorded presentence credit as a matter of constitutional right. See, e. g., Matthews v. Dees, 579 F.2d 929 (5th Cir. 1978); Johnson v. Prast, 548 F.2d 699 (7th Cir. 1977); King v. Wyrick, 516 F.2d 321 (8th Cir. 1975); Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973); United States v. Gaines, 449 F.2d 143 (2d Cir. 1971); Durkin v. Davis, 390 F.Supp. 249 (E.D.Va.1975), rev’d on other grounds, 538 F.2d 1037 (4th Cir. 1976); Monsour v. Gray, 375 F.Supp. 786 (E.D.Wis.1973); Mohr v. Jordan, 370 F.Supp. 1149 (D.Md.1974); White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio 1972); In re Young, 32 Cal.App.3d 68, 107 Cal.Rptr. 915 (1973); Laden v. Warden, 169 Conn. 540, 363 A.2d 1063 (1975); Anglin v. State, 90 Nev. 287, 525 P.2d 34 (1974); State v. Lohnes, 266 N.W.2d 109 (S.D.1978); Martin v. Leverette 244 S.E.2d 39 (W.Va.1978); Wilson v. State, 82 Wis.2d 657, 264 N.W.2d 234 (1978); Klimas v. State, 75 Wis.2d 244, 249 N.W.2d 285 (1977).
The doctrine of stare decisis affords no protection to a rule of law that is no longer constitutionally viable. United States v. Gaines, supra, stands as a paradigm in this respect. Gaines was convicted of a federal narcotics violation and, while on bail pending sentence, he was arrested and charged with state crimes. Shortly after his state arrest he was brought before the federal court for sentencing on the narcotics offense and then returned to state custody for prosecution of the outstanding charges. Bail later was set on the state charges but Gaines was financially unable to post it. The state charges were ultimately dismissed and Gaines was returned to federal custody. He sought credit against his federal sentence for time spent in state custody after state bail had been set. The federal district court denied credit and that decision was affirmed by the Second Circuit Court of Appeals. United States v. Gaines, 436 F.2d 1069 (2d Cir. 1971). The United States Supreme Court granted certiorari, vacated the judgment, and remanded the case “for reconsideration in light of position asserted by the Solicitor General in the Memorandum for the United States.” Gaines v. United States, 402 U.S. 1006, 91 S.Ct. 2195, 29 L.Ed.2d 428 (1971). Upon remand the *867Second Circuit this time concluded that “Gaines’ lack of wealth has resulted in his having to serve a sentence that a richer man would not have had to serve, an impermissible discrimination according to Tate and Williams” and ordered that he be credited “with the time spent in state custody after bail was set.” 449 F.2d at 144. We should follow a similar course here and accord a quiet burial to People v. Jones, supra, and its progeny. The constitutional imperative of equal protection requires no less.3
II.
The petitioner’s alleged misbehavior in jail furnishes no justification for denial of credit.4 Where, as here, the operative effect of state action is to expose the liberty interests of indigents only to the risk of an increased sentence, equal protection demands that the state action be necessarily related to the attainment of a compelling governmental interest. Williams v. Illinois, supra; Tate v. Short, supra; see also, e. g., Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). Assuming arguendo the governmental interest in institutional discipline and security is a compelling one, Laden v. Warden, supra, the denial of credit for presentence confinement because of institutional misconduct is not necessarily related to the realization of that interest. The state, in other words, has available less drastic but equally effective alternatives to achieve prison discipline and security. For example, inmates can be prosecuted for acts of misconduct amounting to criminal offenses. For less serious infractions administrative sanctions are readily available in the form of more restrictive confinement, withdrawal of privileges, or assigned work duties. In view of the wide latitude of alternatives at the disposal of prison authorities, the denial of credit for presentence confinement is not a constitutionally permissible means to achieve the legitimate governmental objective of prison discipline and security. Laden v. Warden, supra.5
III.
The argument that the petitioner has no real grievance because the sum of presen-*868tence confinement and the sentence actually imposed is less than the statutory maximum is similarly untenable. The short answer to this argument is that the petitioner’s constitutional entitlement to credit is not affected by this fact. What the court did here was to impose a sentence and then extend it because of the petitioner’s indi-gency. Such a sentence is a discrimination on the basis of poverty and cannot be constitutionally justified. See Schornhorst, Presentence Confinement and the Constitution: The Burial of Dead Time, 23 Hastings L.J. 1041 (1972); Note, Sentence Crediting for the State Criminal Defendant — A Constitutional Requirement, 34 Ohio St.L.J. 586 (1973).
Accordingly, I would make the rule absolute and remand the cause to the district court with directions to grant the petitioner credit for 174 days on the minimum and maximum terms of his sentence.
. The right to equal protection of the laws is incorporated in the due process clause of the Colorado Constitution, Colo.Const. Art. II, Sec. 25. See, e. g., Heninger v. Charnes, Colo., 613 P.2d 884 (1980); Vanderhoof v. People, 152 Colo. 147, 380 P.2d 903 (1963); People v. Max, 70 Colo. 100, 198 P. 150 (1921).
. The petitioner was represented by the public defender during all stages of the case. There is no evidence that the petitioner remained in presentence confinement by choice rather than necessity. Under such circumstances there is only one reasonable inference: the cause of the petitioner’s presentence confinement was his indigency.
.Granting an accused credit for presentence confinement as a matter of constitutional right would not implicate in any manner the constitutionality of the money bail system. Although money bail may discriminate implicitly against the indigent, justification for the system lies in the state’s compelling interest in assuring that all defendants are present at subsequent court appearances. Klimas v. State, 75 Wis.2d 244, 249 N.W.2d 285 (1977). However, once the defendant has been convicted, the state no longer has a legitimate, much less compelling, interest in requiring an indigent to remain incarcerated longer than the affluent defendant who was able to make bail but was convicted of an identical offense and sentenced to an identical term as the indigent.
“There is no constitutionally sufficient reason to permit the pre-trial discrimination on the basis of wealth to go unrectified, if it is at all possible to do so. The obvious method of rectifying the inequality is to credit the pre-conviction time in partial fulfillment of the sentence imposed upon conviction.” Klimas v. State, 75 Wis.2d at 249, 249 N.W.2d at 288 (1977).
See White v. Gilligan, 351 F.Supp. 1012 (1972); In re Young, 32 Cal.App.3d 68, 107 Cal.Rptr. 915 (1973); Wilson v. State, 82 Wis.2d 657, 264 N.W.2d 234 (1978).
. The presentence report does not contain any reference to the petitioner’s misbehavior. The source of the reports on the petitioner’s misconduct apparently was the petitioner’s statements to a psychiatric examiner during a competency examination. When the judge sentenced the petitioner he stated that he was denying credit because of “Mr. Godbold’s behavior in the jail, which was admitted to the doctor.” The misbehavior purportedly consisted of stopping up a toilet, setting fires, and throwing water on an officer.
. The sentencing judge properly may consider the character of the offender and all aggravating circumstances surrounding the offender. Section 18-l-105(l)(b), C.R.S.1973 (1979 Supp.). Misconduct during presentence confinement, therefore, may be pertinent to the sentencing decision and the sentencing judge may elect to consider it in fixing the term of the sentence. So long as the sentencing judge grants credit for presentence confinement in such a case, the offender will have received his constitutional entitlement. It is quite another matter, however, for the sentencing judge to use the same institutional misbehavior as the basis for denying the offender his constitutional right to credit for such confinement. The latter *868course of action is precisely the one the sentencing judge took in this case to the constitutional detriment of the petitioner.