concurring in part and dissenting in part.
I concur in the opinion of the court that a trial court has jurisdiction pursuant to Crim.P. 35(c)(2) to decide whether a defendant’s constitutional rights were violated by the manner in which the Department of *1378Corrections (Department) computes good-time credits. However, I respectfully dissent to the court’s decision that the Department has not violated the defendants’ constitutional rights.
The parties have stipulated that the defendants were indigent and that their indi-gency prevented them from posting bond. Accordingly, the sole reason that the defendants were. unable to post bond was because of their poverty.
The Department projects a prisoner's release date in the following manner: The Department presumes that every inmate will earn the good-time credits authorized by statute.1 Good-time credits are computed from the day the inmate is sentenced by the trial court, even though the prisoner may be incarcerated in a county jail awaiting transfer to the Diagnostic Center at Canon City. The Department first subtracts the amount of pre-sentence confinement stated in the mittimus from the sentence. The sentence is then reduced by 50 percent based upon the statutory requirement of day-for-day good-time.2
The Department’s method of computing the good-time credits results in a different length of confinement for the same sentence where the only distinction is whether a defendant was able to make bond. The striking example noted in footnote 3 of the court’s opinion is overwhelming evidence of the basic unfairness of the Department’s policy. One defendant who is sentenced to four years at the Department of Corrections after having been free on bond pending conviction will serve twenty-four months, less any earned time. An indigent defendant who was unable to post bond, served six months of pre-sentence confinement in a county jail and receives a sentence of four years will serve twenty-seven months, less any earned time.
Two classes of inmates are created by the Department’s policy. The first class are those inmates who post bond and then serve their entire sentence while in the custody of the Department. The second class is composed of inmates who are unable to post bond solely because of indigency and serve their sentence both at a county jail and in the custody of the Department. The first class serves less net time in confinement because each defendant receives a good-time credit against his entire sentence, while the second class of inmates receives no such credit for pre-sentence confinement. The issue presented in these cases is whether the defendants have been denied equal protection by the Department’s policy of denying good-time credits for pre-sen-tence confinement.
In McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), the United States Supreme Court rejected an equal protection challenge to a denial of good-time credits under the federal constitution. The court today relies on McGinnis to reach a similar result in these cases. McGinnis is not persuasive authority based on four reasons.
First, Colorado inmates are presumed eligible for good-time credits. Good-time credits are awarded to the inmate beginning at the moment of sentencing. Good-*1379time credits are awarded prior to any exemplary conduct by an inmate and are, therefore, unrelated to rehabilitation efforts. Good-time credits are withdrawn from an inmate only in the event there is a violation of the rules and regulations of the institution where he or she is confined. Good-time credits are not awarded for positive behavior but are withdrawn for negative conduct. Earned time, on the other hand, is closely related to rehabilitation and is awarded to the inmate upon his or her compliance with the statutory requirements.3 In addition, forty-five days in good-time credits vest each ninety days.
Second, the New York statute under attack in McGinnis explicitly prohibited consideration of good-time credits for county jail time in calculating the minimum parole date. Our statutes contain no such prohibition. Rather, section 16-11-306, C.R.S.1973 (1978 Repl.Vol. 8), specifically requires that an inmate be given credit for all pre-sen-tence confinement.
Third, the Court in McGinnis noted that an amended statute had been passed which created a new procedure governing appearances before the parole board.4 The complaining inmates failed to follow the new procedure which lessened the disadvantage which was the basis of the equal protection claim.
Fourth, my research discloses that, except for one jurisdiction,5' all state courts which have considered the issue based upon similar facts have concluded that the denial of pre-sentence or conduct good-time credits to indigent prisoners results in a denial of equal protection under either a rational basis or compelling state interest test. People v. Sage, 26 Cal.3d 498, 611 P.2d 874, 165 Cal.Rptr. 280 (1980);6 Hampton v. Rowe, 88 Ill.App.3d 352, 43 Ill.Dec. 511, 410 N.E.2d 511 (1980);7 State ex rel. James v. Stamps, 562 S.W.2d 354 (Mo.1978).8
The court has adopted a rational basis test to analyze the defendant’s constitutional claims. The court upholds the Department’s policy on the ground that rehabilitation and discipline provide a satisfactory rational basis. I disagree. There is nothing in the record or the statutes which supports this conclusion. The claim that good-time credits are somehow related to rehabilitative programs that only the Department can provide “is the red herring in this litigation.” McGinnis v. Royster, 410 U.S. at 279, 93 S.Ct. at 1064 (Douglas, J., dissenting). The manner in which the Department administers the statutory sentencing scheme establishes beyond argument that the sole purpose of good-time credits is to induce good behavior, regardless of where the prisoner is confined.
Wealth discrimination has been treated as a suspect classification in the context of trial, appellate, and sentencing proceedings in criminal cases. See, e.g., Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, *1380100 L.Ed. 891 (1956); Godbold v. Wilson, 518 F.Supp. 1265 (D.Colo.1981). When a suspect classification is established or a fundamental constitutional right is involved, the strict judicial scrutiny standard must be applied. To uphold the classification under that standard, there must be a necessary relationship between the classification and a compelling governmental interest. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).
In Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), the Supreme Court held that a convicted criminal could not be imprisoned for a period of time exceeding the statutory maximum as a substitute for payment of a fine when the non-payment was involuntary due to indi-gency. The Court stated:
“However, once the State has defined the outer limits of incarceration necessary to satisfy its penalogical interests and policies, it may not then subject a certain class of convicted defendants to a period of imprisonment beyond the statutory maximum solely by reason of their indi-gency.”
399 U.S. at 241-42, 90 S.Ct. at 2022. The “statutory ceiling placed on imprisonment for any substantive offense [must] be the same for all defendants irrespective of their economic status.” Williams v. Illinois, 399 U.S. at 244, 90 S.Ct. at 2023-2024. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the Court extended Williams to bar imprisonment of an indigent defendant who was unable to pay the fine for an offense that was punishable only by fine. The facts in the cases here differ from those in Williams and Tate because the defendants are not to be confined longer than the statutory maximum. However, the consequences to the defendants are the same because “the indigent is forced to serve a longer term in prison than the non-indigent solely because of his poverty.” See Godbold v. District Court, 623 P.2d at 866 (Colo.1981) (Quinn, J., dissenting).
The United States Supreme Court announced the test for determining when a wealth based classification impermissibly discriminates against a suspect class in San Antonio Independent School Dist. v. Rodriguez, supra. The Court stated:
“The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy the benefit.”
411 U.S. at 20, 93 S.Ct. at 1290. In applying the test to the facts of this case, I am persuaded that a defendant who remains confined in a jail before trial solely because of his indigency is a member of a class who is “completely unable to pay for some desired benefits,” i.e., being free on bail pending trial. The defendant has sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.
The defendants will be confined for a longer period of time simply because of their indigency. Such a result violates the defendants’ guarantees of equal protection under the Fourteenth Amendment to the United States Constitution and article II, section 25 of the Colorado Constitution. The legislature has enacted a statutory scheme governing credit for pre-sentence confinement, good-time, and earned time. Section 16-11-306, C.R.S.1973 (1978 Repl. Vol. 8), requires credit for all pre-sentence confinement. The statute must be construed in favor of the defendants to include good-time credits. If a statute is capable of two constructions, that construction should be adopted which would entitle the prisoner to his or her release at the earliest date. In re Blocker, 69 Colo. 259, 193 P. 546 (1920); State ex rel. James v. Stamps, supra (“Precedent abounds, however, for a liberal construction of ‘good time’ statutes.” 562 S.W.2d at 355 n. 1).
Equal protection principles require that persons sentenced to the Department of Corrections in Colorado be treated equally, regardless of financial condition. See Godbold v. Wilson, 518 F.Supp. 1265 (D.Colo. *13811981). There is a suspect classification based on wealth discrimination. Good-time credits are disallowed only to inmates who are unable to post bail. This discrimination is clearly invidious. Therefore, strict judicial scrutiny must be applied under an equal protection analysis. There must be a “necessary relationship” between the classification and a “compelling governmental interest” to uphold the governmental objective. San Antonio Independent School Dist. v. Rodriguez, supra. The record fails to establish any compelling governmental interest in requiring indigent prisoners to serve longer sentences than those who are financially able to make bond prior to trial.
Accordingly, I would remand these cases to the district court with directions to determine the appropriate good-time credit based on the amount of pre-sentence confinement. If a defendant is entitled to good-time credits, the trial court can simply amend the mittimus in each case by doubling the amount of pre-sentence confinement time presently reflected in each mitti-mus. In future cases, the probation department, as part of its pre-sentence investigation, can make a recommendation to the sentencing court as to whether a defendant should be granted good-time credits on his or her pre-sentence confinement.
. Today the court has announced two decisions governing an inmate’s right to good-time credits for pre-sentence confinement. In People v. Chavez, 659 P.2d 1381 (Colo. 1983), the defendant is granted the requested good-time credits based on the fact that the crime was committed after July 1, 1979. In this case, the defendants were convicted of crimes committed prior to July 1, 2979. However, they were sentenced after July 1,1979. In 1979, the legislature enacted a new statute governing good-time credits for persons sentenced for crimes committed on or after July 1, 1979. Because of the apparent conflict in the two statutes, section 17-20-107, C.R.S.1973 (1980 Supp. to 1978 Repl.Vol. 8), and section 17-22.5-101, C.R.S.1973 (1980 Supp. to 1978 Repl.Vol. 8), the record in Chavez indicates that the attorney general has advised the Department that it must grant good-time credits beginning with the date of sentencing because the statute, section 17-22.5-101, C.R.S. 1973 (1980 Supp. to 1978 Repl.Vol. 8), does not limit such credits to inmates who are incarcerated in the State Penitentiary at Canon City. The defendant Cory testified that this procedure was followed in his case, as shown in footnote 3 of the court’s opinion.
. Section 17-22.5-101, C.R.S.1973 (1980 Supp. to 1978 Repl.Vol. 8).
. Section 17-22.5-102, C.R.S.1973 (1980 Supp. to 1978 Repl.Vol. 8).
. N.Y. Penal Law § 70.30 (McKinney 1975), Practice Commentaries state at page 253-54:
“It should also be noted that good time is now computed on the term of the sentence and not — as was formerly the case — on the term of the sentence less jail time.”
. McCormick v. Hunt, 328 So.2d 140 (La.1976).
. The California Supreme Court stated:
“In conclusion, the People have not suggested, nor has our independent research revealed, a rational basis for, much less a compelling state interest in, denying presentence conduct credit to detainee/felons.”
26 Cal.3d at 508, 165 Cal.Rptr. at 285, 611 P.2d at 879.
. The Illinois court stated:
“The succinct issue before us is whether the classification bears a rational relationship to a legitimate legislative purpose. We believe that it does not.”
88 Ill.App.3d at 355, 43 Ill.Dec. 511 at 513, 410 N.E.2d 511 at 513.
. The Missouri Supreme Court stated:
“The succinct issue before us is whether that rational basis for distinguishing between a ‘day’ served in jail prior to sentence to a state institution and a ‘day’ served in jail prior to sentence to the St. Louis Medium Security Institution by reason of the same crime. No compelling state reason to hold otherwise has been suggested.”
562 S.W.2d 354 at 356.