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Criminal Law Blog

Gain-time deprivation during COVID-19

Posted by Mattie Fore | Oct 29, 2020

Time off a Florida prison sentence for good behavior begins once an inmate arrives at a Department of Corrections (DOC) facility. However, the waiting list to get to prison from the county jail gets longer every day. This is because the Palm Beach County Sheriff's Office has drastically reduced the number of inmates being transported each month to DOC.  For safety of the inmates as well as staff, far fewer prisoners are on each bus to the South Florida Reception Center where they are brought to prison. What effect is this having on the normal earning of time off for good behavior?

While I try to avoid prison for my clients when necessary, a prison sentence is sometimes the best way to resolve a serious felony case for the sake of avoiding a trial penalty (this is where a person gets far more time after losing a trial than had they entered a plea to a negotiated sentence with the prosecutor). That person's release date can be roughly calculated and anticipated at the time they accept their plea offer. That is, under normal circumstances. But COVID-19 has had a negative effect on the predictability of release date calculation. 

It usually takes only two or three weeks to be transported to prison from a county jail facility after the date a plea is entered. However, there are inmates in the Palm Beach County jail who have been waiting since as early as April 2020 to be brought to prison. Whether an inmate prefers the living conditions of the jail to that of a prison, the most significant problem with this delay is that inmates are serving more total days in custody than they would have without this transport delay.

Gain time--time off for good behavior--can be earned at the rate of 10 days per month. But no gain time can be earned before an inmate gets to prison. The effect of this is that a person who takes a plea for 366 days in prison (the minimum prison sentence possible) may get no gain time because their sentence is over before they are every transported to prison. They will not earn any good behavior time off if their whole 366-day sentence ends up being served in the county jail. Compare that to an inmate who is instead sentenced to 365 days in jail--this person will receive the gain time provided by the jail (up to 10 days per month for inmates that serve as trustees). This can result in the first inmate serving 366 full days incarcerated, while the second inmate serves only 8 months.

Even though the standard plea documents clearly state that gain time is not guaranteed, every inmate relies on it to some extent when considering a plea offer. Inevitably, the first question a person has is "how many months will I serve if I take this plea offer?" If the answer to that question is unclear, people charged with crimes don't ultimately know what their sentence will be. 

What can lawyers do to help their clients in this situation? Any plea a prosecutor offers has to be evaluated in light of these gain time deprivations. The shorter the sentence, the more significant the impact of the delay in transport on the time a client will serve. In other words, if a plea offer of 366 days in prison could be negotiated down to a 365 jail sentence, several weeks of incarceration could be shaved off a sentence. Lawyers need to do this negotiation before the plea is taken, if at all possible.

About the Author

Mattie Fore

Ms. Fore has been licensed to practice law in the State of Florida since 2009. She is a graduate of the University of South Carolina School of Law, where she tried and won her first case before a jury as a student of the Criminal Practice Clinic. She is also a graduate of the National Criminal De...

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Mattie Fore Law, LLC is a criminal defense practice which handles all types of felonies, misdemeanors, and traffic offenses in Florida state courts. Ms. Fore will devote the time and attention you and your case deserve in order to achieve the best result possible.