concurring in part and dissenting in part:
I concur in Part II of the court’s opinion. I, however, dissent from Part III of the opinion, and, in this respect, I join the dissenting opinion of Justice Neighbors. I write separately only to add some additional observations on why I believe the failure to accord these defendants credit for statutory good time violates equal protection of the laws under even the rational basis standard of review.1 I find no reasonable nexus between the denial of good time credits for presentence confinement and the asserted governmental interests in rehabilitation and institutional discipline. For this reason I do not believe the Supreme Court’s decision in McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), should control the result here.
I.
In McGinnis, the Supreme. Court considered a complex New York statutory scheme applicable to convictions for offenses committed prior to September 1, 1967. The New York law prohibited the crediting of good time on presentence confinement in calculating the offender’s “minimum parole date,” which was the earliest date on which a prisoner could have been paroled at the discretion of the parole board. New York, however, did permit good time credit on presentence confinement in calculating the “statutory release date,” which was the earliest date the offender must have been paroled by the parole board. In addition, the statutory scheme at issue in McGinnis was replaced by a new statutory procedure which abolished good time on the minimum sentence and authorized a prisoner to meet the parole board at the expiration of the minimum term. This replacement statute applied to offenses committed subsequent to *1376September 1, 1967, but New York had granted the appellee-prisoners, Royster and Rutherford, the opportunity to elect the new statutory procedure for parole eligibility. Although Royster and Rutherford declined the state’s offer, the availability of the new statutory procedure on parole eligibility caused the court to view them in “at least as favorable a position as all state prisoners convicted for offenses committed subsequent to September 1, 1967, including those released on bail prior to sentence.” Id. at 269, 93 S.Ct. at 1059, 35 L.Ed.2d at 288. Thus, their disadvantage in the computation of time was “only in comparison with those who were convicted of offenses committed prior to September 1, 1967, and made bail prior to trial,” id., and not to those sentenced for offenses committed after September 1, 1967.
In a real sense the New York statutory scheme in McGinnis did grant some credit for good time on presentence confinement. Admittedly, this credit was partial, in that it was calculated only on the mandatory parole date, as distinct from the discretionary parole date.2 However, this end-means relationship between parole and good time credit in the New York statute is manifestly different from Colorado’s statutory scheme, which results in a total denial of all good time credit on all presentence confinement. Also, in contrast to McGinnis, Colorado has no statutory alternative for computing a release date that might place these defendants on a relatively equal footing, in terms of actual time served, with other offenders who are financially able to make bail. Viewed against the backdrop of the New York statutory scheme, I do not read McGinnis as adopting a per se rule that should control the issue raised here. On the contrary, any reasonably probing look at the asserted legislative goals of the Colorado good time statute and the actual methodology employed to effectuate those goals dispels the notion that a reasonable nexus exists between end and means.
II.
The Department of Corrections (department) credits statutory good time solely on the basis of the unexpired term of the sentence, which is computed by deducting pre-sentence confinement from the actual sentence. The department makes this good time allocation as soon as it receives notice of the sentence, independently of any consideration of rehabilitation or discipline. The department refuses to credit presen-tence confinement with statutory good time solely because of the presentence character of the confinement and not because of any rehabilitative recalcitrance or institutional maladjustment on the part of the offender. This obvious differential in treatment represents, in my view, a clear case of invidious discrimination which fails to satisfy even the minimum rationality standard of equal protection doctrine.
I am at a loss to understand how the asserted rehabilitative and disciplinary interests of the state are served by automatically crediting sentenced offenders with statutory good time. Nor can I find any logic in a statutory scheme that purports to enhance rehabilitation and institutional discipline by a good time entitlement program, but categorically denies good time credit solely on the basis of the presentence character of the confinement, without regard to the presentence detainee’s institutional behavior during the period of presentence confinement. Nor does it make any sense to require that presentenee confinement be credited against the term of any sentence, section 16-11-306, C.R.S. 1973 (1982 Supp.), but to disallow good time credit on the same presentence confinement. If presen-tence confinement must be taken into consideration in computing the term of á sentence, then it also should be taken into *1377consideration for purposes of statutory good time, which is directly related to the length of a sentence. E.g., White v. Gilligan, 351 F.Supp. 1012 (S.D.Ohio 1972); Parker v. Bounds, 329 F.Supp. 1400 (E.D.N.C.1971). The long and short of the matter is that in Colorado an offender’s financial inability to post bail results in presentence confinement, which in turn leads to a categorical denial of good time credits, thereby resulting in a longer period of incarceration for the indigent unable to post bail than for offenders sentenced to the same period of time for the same offense but who, unlike the indigent defendant, are able to post pretrial bail. This is a wealth discrimination which bears no rational connection to any legitimate governmental interest. E.g., People v. Deegan, 56 Misc.2d 567, 289 N.Y.S.2d 285 (1968).
III.
The majority’s unwillingness to accept the defendant’s equal protection argument stems, in part, from its reluctance to conclude that “presentence confinement is punishment.” Presentence confinement, however, is nothing short of de facto punishment. The legislature recognized the punitive character of this confinement when, in 1979, it created a statutory entitlement to presentence confinement credit. Section 16-11-306, C.R.S.1973 (1982 Supp.). Furthermore, this court itself in a companion case decided this day, People v. Chavez, 659 P.2d 1381 (Colo.1983), construes section 17-22.5-101, C.R.S.1973 (1982 Supp.), as requiring statutory good time credit on presentence confinement precisely because, in this court’s words, “presentence confinement in a jail facility becomes in effect a part of the time served on the convicted person’s sentence.” “Time served” is the form of punishment authorized by law for convicted offenders.
I also disagree with the majority’s conclusion that crediting these defendants with statutory good time would somehow implicate the constitutionality of the bail system. The bail system would no more be affected by granting these defendants their requested relief than it would be by according sentenced offenders a statutory right to presentence confinement, as the legislature has already done, section 16-11-306, C.R.S. 1973 (1982 Supp.), or by granting them the statutory right to good time credit against presentence confinement, as this court has done in the companion case of People v. Chavez, supra, for offenders sentenced for crimes committed after July 1, 1979.
I recognize that this court for a number of years has rejected equal protection claims to credit for presentence confinement. See, e.g., Godbold v. District Court, 623 P.2d 862 (1981); Perea v. District Court, 199 Colo. 27, 604 P.2d 25 (1979); People v. Martinez, 192 Colo. 388, 559 P.2d 228 (1977); People v. Jones, 176 Colo. 61, 489 P.2d 596 (1971). Our prior decisions, at least in my view, are predicated upon “a rule of law that is no longer constitutionally viable,” Godbold v. District Court, supra at 866 (Quinn, J., dissenting); see also Godbold v. Wilson, 518 F.Supp. 1265 (D.Colo.1981). Stare decisis should not acquire an unyielding rigidity, incapable of response to significant disparities in treatment solely on the basis of wealth or indigency. Just as “[tjhere can be no equal justice where the kind of trial a man gets depends on the amount of money he has,” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891, 899 (1956), so too there can be no equal treatment under the law when an indigent is forced to serve a longer term of incarceration than the nonindigent solely because of his poverty. I would accordingly reverse the judgment and remand the case for the entry of appropriate orders granting statutory good time to the defendants based upon their respective terms of presentence confinement.
. Although the United States Supreme Court has never held that indigency, per se, is a suspect classification, it strongly implied in San Antonio School District v. Rodriguez, 411 U.S. 1, 20-22, 93 S.Ct. 1278, 1289-91, 36 L.Ed.2d 16, 35-36 (1973), that a wealth classification may be constitutionally suspect when it absolutely deprives those who are impecunious of any meaningful opportunity to enjoy a benefit available to others. Moreover, in the context of governmental treatment of individuals in the criminal justice system, the Supreme Court has closely scrutinized classifications which disadvantage the impecunious. E.g., Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (state may not convert a “fines only” penalty scheme into a jail sentence simply because a convicted defendant is too poor to pay the fine); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (defendant unable to pay fine could not be incarcerated beyond maximum term of imprisonment fixed by statute; equal protection requires that “statutory ceiling placed on imprisonment ... be the same for all defendants irrespective of their economic status”); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (indigent defendant entitled to free transcript of preliminary hearing for use at trial); Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966) (statutory scheme requiring only indigent defendants sentenced to prison to reimburse the state for the cost of a transcript on appeal constituted an “invidious discrimination” between those convicted defendants and others sentenced only to pay fine or subject only to suspended sentence or probation); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (state may not require an indigent to make a preliminary showing of merit as a condition for appointment of appellate counsel); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959) (state cannot require indigent defendant to pay filing fee before permitting appeal); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (state cannot deprive indigent defendant convicted of felony of free trial transcript for purposes of appeal). These cases seem to indicate that in the context of criminal justice a statutory scheme which absolutely denies a statutory benefit to a distinct class of defendants solely on the basis of their financial inability to post bail would constitute a suspect classification triggering a strict scrutiny standard of review.
Although there may be a few persons in the affected class who are incarcerated prior to trial because of a high bail which is beyond the financial ability of most persons to make or because of the pendency of an unbailable charge against them, they are extremely few in number and do not detract from the fundamental character of the class as an economically impoverished one. Most defendants remaining in jail prior to trial are financially unable to post any bail at all.
. “Thus, New York’s decision to deny good-time credit for presentence jail time solely with respect to a state prisoner’s minimum parole date is rationally justified on the ground that the risk of prematurely releasing unrehabilitated or dangerous criminals may well be greatest when the parole decision is made prior to the expiration of the minimum sentence.” McGinnis v. Royster, supra at 274, 93 S.Ct. at 1061-62, 35 L.Ed.2d at 291 (Emphasis added).