(dissenting). Predicting future events has become quite an indoor sport in this country, with some claiming a psychic ability to foresee the shape of things to come. A judicial variant of the pastime has become popular in legal circles. Particularly as to decisions of the United States Supreme Court, those playing the game do not stop with the rule of the case as enunciated and limited. Rather they speculate as to where the reasoning or inclination of the high court might next lead it to travel.
An opportunity, but hardly an invitation, to thus seek to peer into the future came when the United States Supreme Court held that an indigent defendant could not be confined beyond the maximum sentence specified by statute because of his inability to pay the monetary portion of his sentence.1 Such added time, beyond a *427maximum statutory penalty, was held to be an unconstitutional discrimination against those defendants who, by reason of indigency were unable to pay the fine imposed along with the maximum sentence. This rationale was applied and same result reached where an indigent defendant was convicted of an offense punishable only by fine and, by reason of such indigency, was forthwith required to go to jail where a more affluent convicted defendant would have only to pay a monetary fine.2 So it was clear that the nation’s highest tribunal had found and held that imposing the penalty of imprisonment on indigents solely because of their inability to pay a fine was a violation of the equal protection guarantees of the United States Constitution.
In the cases dealing with the penalty of imprisonment on indigents solely because of their inability to pay a fine, there is no mention of or reference to pretrial confinement resulting from an inability or disinclination to post the bond set for release pending trial. The difference in the two situations is obvious. Bail is required, and constitutionally authorized,3 to insure the appearance of a defendant, charged with the commission of a crime, at trial.4 Incarceration for failure to pay a money fine *428is a penalty or punishment for the commission of an offense, alternatively provided and arising when the fine imposed is not paid. One would truly need psychic powers to find, in a decision on nonpayment of money fines, a future rule requiring automatic credit for pretrial detention resulting from a failure to post bail. However, if the Williams and Tate holdings are seen as no more than way stations on a planned longer journey to the destination of full credit on sentence for all periods of detention, pretrial or post-trial, then a trial court might well elect to rule now what it anticipates the United States Supreme Court will rule later on when the specific issue is presented to it.
Three recent federal courts, all district court level, have sought, or sought to foresee, the applicability of the United States Supreme Court rulings on incarceration due to nonpayment of a fine to require pretrial detention being credited on a prison sentence. Two make the full trip, or nearly so.5 One of those two, in the southern district of Ohio, holds that “. . . where, for whatever reason, a defendant remains in jail prior to his trial he must be given credit on the statutorily fixed sentence ultimately imposed for all periods of actual confinement.” 6 The other of the two, in the eastern district of Wisconsin, summarizes its holding as requiring “. . . that petitioner be credited with respect to the first period of preconviction detention resulting from his financial *429inability to meet the bond set in his case.” 7 Both of these cases require an automatic credit on any sentence imposed for time spent in pretrial detention due to not posting bond. The third district court level decision, the one in the western district of North Carolina, stops midway. It sees the “essential question” as being . . whether the time a prisoner spends in custody prior to trial when added to the sentence to be served upon commitment can total more than the statutory maximum punishment for the crime involved.” 8 Where the time spent in custody without commitment, when added to the sentence given after trial, is less than the statutory maximum, the court is “. . . reluctantly inclined to indulge the fiction that the trial judge who imposes sentence has given the defendant credit for time served before commitment.” 9 The result, under the North Carolina decision, is that the constitutional issue of discriminatory treatment arises or is to be considered only where the time spent in pretrial detention, added to the sentence imposed, exceeds the statutory maximum. This very nearly limits applicability to those cases where the sentence imposed on a single charge is near the maximum, or where near-maximum sentences on multiple charges are made to run consecutively. This is the modified or halfway rule accepted by the majority of this court in the case before us.
What is wrong with all three district court level federal decisions, and wrong with the majority of our court electing to follow the even more cautiously limited and persuasively reasoned one of the three, is that none *430of them square with a recent United States Supreme Court opinion.10 That decision, in this writer’s opinion, expressly negatives the analogizing of time spent for nonpayment of a fine with time spent in pretrial detention for failure to post bond. In that case, the New York State statute involved gave the appellees-defendants credit only for the period of their presentence incarceration in county jail.11 As a result, one defendant unable to post bail served 404 days jail time prior to his transfer to state prison to serve consecutive terms for burglary and grand larceny.12 The other defendant also failed to make bail and spent 242 days in county jail prior to his trial, sentencing and transfer to state prison on sentences for robbery and grand larceny.13 The majority opinion notes that it was undisputed that, were they to receive good-time credit for their presentence confinement in county jail, they would be entitled to appear before the parole board about four and three months, respectively, earlier.14 That difference, between their status and that *431of defendants similarly situated who did post bail and secure pretrial release, is what the case was about.
On the issue raised as to good-time credit, the high court majority acknowledged that the defendants, who had been unable to post bail, had been disadvantaged as compared with defendants released on bail prior to sentence.15 Despite this finding of comparative disadvantage on the part of defendants unable to post pretrial bond, the high court majority rejected the constitutional challenge and upheld the New York State law, holding that such a state statute, even with such in-built disadvantage to nonbail posters, can further a legitimate state purpose.16
In upholding a state law that distinguished between prison time in serving a sentence and pretrial time spent in jail due to inability to post bond, and finding no constitutional infirmity in a resultant disadvantage as to defendants who remained in pretrial detention due to inability to post bond, the United States Supreme Court *432majority upheld the state’s contention that: “. . . ‘state prisons differ from county jails with respect to purpose, usage and availability of facilities.’ ” 17 The opinion noted that: “. . . at state prisons a serious rehabilitative program exists. County jails, on the other hand, serve primarily as detention centers.” 18 Then, concluded the high court majority: “These significant differences afford the basis for a different treatment within a constitutional framework.” 19 The full equating of time spent in prison with time spent awaiting trial in a county jail is thus expressly and specifically denied. Additionally, there is the clear recognition that the purpose of detention in a county jail awaiting trial differs from the purpose of commitment to a state prison. Such difference of purpose is the difference between detaining to insure appearance at trial and commitment to a state prison as a penalty for an offense. Both in purpose and in the rehabilitative program present in a prison, absent in jail pretrial detention, there are significant differences. Such differences, sufficient to warrant denial of good-time credit for jail-time detention, also justify not judicially mandating credit on a prison sentence credit for pretrial jail-time detention. At the least, under the McGinnis holding, such credit for pretrial detention is not constitutionally required.
It is not always safe to quote a dissenting opinion, or even a concurring one, as to what a court majority opinion said or meant to say. But, in the McGinnis Case, the two-Justice dissent, written by Mr. Justice William 0. Douglas,20 helps make clear the issue involved and makes clear the contrasting and conflicting reactions to *433it. The dissent agrees with the majority that the consequence of the majority holding is “. . . that appellees are required to wait some months longer before they may appear before the Parole Board than do those who out on bail or on personal recognizance pending trial but sentenced to the same term for the same crime.” 21 The dissenters would hold that “. . . discipline — not rehabilitative progress — is the key to ‘good time’ credit,” 22 but that does not alter the majority ruling or reasoning which is controlling. The dissenters hold that, “[a]fter all is said and done, the discrimination in the present case is . . . leveled against those too poor to raise bail and unable to obtain release on personal recognizance.” 23 Such summarization of the majority holding ignores the entirely different purpose involved in detaining, to insure appearance at trial with commitment as a penalty for commission of a crime, as well as denies the differences in facilities and programs available at state prisons as compared to county jails. But we have quoted from majority opinion and dissent to make clear, the writer would submit, that there is no constitutional basis, much less mandate, in the McGinnis v..Royster majority opinion to warrant either federal district courts, or the majority of this court, to judicially require that time spent in custody awaiting trial must be credited against time to be spent serving a prison sentence for commission of a criminal act. The writer would affirm here on all issues raised.
Williams v. Illinois (1970), 399 U. S. 235, 90 Sup. Ct. 2018, 26 L. Ed. 2d 586.
Tate v. Short (1971), 401 U. S. 395, 91 Sup. Ct. 668, 28 L. Ed. 2d 130. See also: Morris v. Schoonfield (1970), 399 U. S. 508, 90 Sup. Ct. 2232, 26 L. Ed. 2d 773.
Art. VIII, Amendments to the United States Constitution, providing: “Excessive bail shall not be required . . . .” Art. I, sec. 6, Wisconsin Constitution, providing: “Excessive bail shall not be required . . . .”
Whitty v. State (1967), 34 Wis. 2d 278, 286, 149 N. W. 2d 557, this court stating: “. . . An accused has a constitutional right to reasonable bail and the amount thereof should be determined solely in reference to the purpose of bail, namely, to assure the appearance of the accused when it is his duty to appear to answer the criminal prosecution. . . .”
Nearly so, because even these decisions do not clearly spell out an automatic credit for time spent, post-trial, challenging a verdict or conviction. Nor does either deal with the situation where a pretrial detention might exceed the statutory maximum on a minor misdemeanor charge, and a defendant might claim the right of compensation for the time spent in custody in excess of the prescribed statutory maximum penalty for the crime committed.
White v. Gilligan (D. C. Ohio 1972), 351 Fed. Supp. 1012, 1014.
Taylor v. Gray (D. C. Wis. 1974), 375 Fed. Supp. 790, 792, summarizing holding, conceded without agreeing by the respondent state, in Monsour v. Gray (D. C. Wis. 1973), 375 Fed. Supp. 786.
Culp v. Bounds (D. C. N. C. 1971), 325 Fed. Supp. 416, 418, 419.
Id. at page 419, fn. 1.
McGinnis v. Royster (1973), 410 U. S. 263, 93 Sup. Ct. 1055, 35 L. Ed. 2d 282.
Id. at page 266, fn. 5.
Id. at pages 266, 267.
Id. at page 267.
Id. at page 267. The contention of the defendants, as summarized by the court majority, was that “. . . ‘denying state prisoners good-time credit for the period of their pre-sentence incarceration in a County Jail whereas those fortunate enough to obtain bail prior to sentence [receive] a full allowance of good-time credit for the entire period which they ultimately spend in custody’ violates equal protection of the laws and discriminates against those state prisoners unable to afford or otherwise qualify for bail prior to trial.” Id. at page 268. Under the New York statute “. . . appellees did receive jail-time credit for the period of their presentence incarceration in county jail . . . .” Id. at page 266. So appellees’ claim of constitutional deprivation raised was limited to the portion of the statute which “. . . explicitly forbids, in calculating the minimum parole date, any good-time credit *431for the period of county jail detention served prior to transfer to state prison.” Id. at page 266.
Id. at page 269, stating: “We first note that any relative disadvantage the distinction works on appellees is lessened by the fact that New York on September 1, 1967, replaced sec. 230 of its Correction Law with secs. 803 and 805, which apply to all convictions for offenses after that date. Under the new scheme, ‘good time earned on the minimum sentence is abolished.’ . . . Appellees thus are disadvantaged in the computation of time only in comparison with those who were convicted of offenses committed prior to September 1, 1967, and made bail prior to trial.” (Emphasis supplied.)
Id. at page 270, stating: “The determination of an optimal time for parole eligibility elicited multiple legislative classifications and groupings, which the court below rightly concluded require only some rational basis to sustain them. ... We do not wish to inhibit state experimental classifications in a practical and troublesome area, but inquire only whether the challenged distinction rationally furthers some legitimate, articulated state purpose. We conclude that it does.”
Id. at page 270.
Id. at page 271.
Id. at page 271.
Id. at pages 277-283, Mr. Justice Douglas dissenting, with Mr. Justice MARSHALL concurring in dissent, at page 277.
Id. dissenting opinion, at page 278.
Id. dissenting opinion, at page 279.
Id. dissenting opinion, at page 280.