The term community custody is defined as any sentencing arrangement where a criminal is permitted to live in the community (with restrictions) as opposed to being incarcerated. This sentencing option is often utilized for offenders who are deemed less of a threat to society and/or to reduce jail or prison overcrowding.
But does an offender in community custody get credit for time served?
The answer is murkier than you might think, and it was addressed in a Washington Supreme Court decision released earlier this month. The ruling affirmed that community custody as part of a special sex offender sentencing alternative (SSOSA) does not count as credit toward a criminal’s time served.
State v. Pannell centers around a man named Daniel Herbert Pannell who was convicted in 2003 of incest and child molestation. He was sentenced to 116 months in prison, but the judge said she would suspend the sentence if Pannell went into counseling and made continuous progress in his treatment plan. Unfortunately, Pannell did not perform well in treatment, and his suspended sentence was revoked in 2006.
Pannell argued that his three years spent in community custody should count toward his 116-month sentence, claiming that community custody under a suspended sentence was the same as being in community custody after being released from prison or jail on parole (which does entitle the offender to time served). But a judge disagreed, comparing the SSOSA arrangement to being out on bail, for which a person does not receive time served.
Eventually, the dispute wound up in the state Supreme Court, which ruled in favor of the state. In a unanimous decision, the court said that the statute does not permit sentencing credit when community custody is revoked due to noncompliance with the terms of an SSOSA. In effect, the Washington Supreme Court is saying that according to state law, standard parole, work-release, or halfway house arrangements are different from the community custody programs which govern sex offenders. For better or worse, this seems to follow a national pattern of unorthodox restrictions and requirements being placed upon individuals who have been convicted of sex offenses.
Here is the court’s rational with fun language about carrots and whips.
We agree with our Court of Appeals. When the legislature created SSOSA as an alternative for sex offenders amenable to treatment, it provided to the courts two tools: a carrot and a whip. The suspension of the sentence subject to treatment and other conditions is the carrot. Incarceration followed by supervised time in the community is the whip. Time spent eating the carrot and time spent under the whip are qualitatively different. The legislature did not intend that the time the offender spends nibbling at the carrot would reduce time under the whip. Pannell is illustrative. He spent nearly three years in the community before his suspended sentence was revoked. We agree with the courts below that the suspended portion of a SSOSA is analogous to bail or pre-Sentencing Reform Act of 1981 probation, which is not considered in calculating the maximum sentence. In view of the
SSOSA revocation, it does not follow that the legislature intended Pannell’s incarceration and subsequent community custody be reduced by nearly three years. To provide credit for time spent under a suspended sentence against the imposed sentence would effectively erode the incentives, which are integral to the SSOSA Statute.
Rule of Pannell – No credit for Community custody status while on SSOSA if SSOSA is revoked
State v. Daniel Herbert Pannell – Supreme Court of Washington, No. 85437-8, December 1, 2011