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What is “credit for time served”?  It means that anytime you spend in jail while your case was being tried can be deducted from whatever sentence you ultimately receive. 

Say, for example, that you’re arrested and, at arraignment, the judge sets bail at $5,000.  You can’t afford bail, so you’re held in jail while your case is pending.  You spend 90 days in jail until you’re ultimately sentenced to 6 months in the house of corrections.  You’ll receive “credit” for the 90 days that you’ve already spent in jail and that time will be deducted from the 6 month sentence imposed by the court.  So you’ll remain in jail for only three additional months.

The statutory law concerning “jail credit” is found in M.G.L. c. 279, § 33A and M.G.L. c. 127, § 129B

According to the Supreme Judicial Court:

If a defendant is held in custody before trial [these statutes] mandate that he or she be credited with those days spent incarcerated toward the sentence eventually received.

Commonwealth v. Caliz, 486 Mass. 888, 891 (2021).

The Appeals Court has added that

Where the statute does not strictly control, considerations of fairness and fair treatment of the defendant guide the determination of whether to give jail credit.

Commonwealth v. Maldonado, 64 Mass. App. Ct. 250, 251 (2005).

In the Maldonado case, the Appeals Court emphasized that “[t]here is a strong policy against defendants serving ‘dead time.’  Id. at 252.  In other words, anytime a defendant spends in jail awaiting the outcome of his case should be credited in most circumstances.

There are exceptions, however.

First, if a defendant is not permitted to use time he’s serving on an unrelated case.

[A] defendant is not entitled to jail credit for time spent awaiting trial if he is already serving a committed sentence for unrelated offenses.

Commonwealth v. Pearson, 95 Mass. App. Ct. 724, 726 (2019).

The court adds,

A defendant in custody awaiting trial on multiple unrelated cases is entitled to apply the jail credit to only one case; however, a judge has discretion to award jail credit to multiple cases upon timely request.  Emphasis added.

Id. at 727.

Additionally, inpatient drug treatment cannot, in most cases, be used for jail credit. 

[F]or purposes of determining credit for time spent in confinement, an inpatient drug treatment program as a condition of probation does not equal incarceration.

Commonwealth v. Speight, 59 Mass. App. Ct. 28, 32 (2003).

However, the Appeals Court was quick to point out that

This is not to say that there are no circumstances in which a condition of probation might be the equivalent of incarceration for which a defendant would be entitled to credit.


When arguing that inpatient drug treatment or any other pretrial probation conditions rise to the level of incarceration of credit purposes,

There must be a showing that the deprivation of liberty to which the defendant was subjected approached incarceration.


Lastly, whenever there is a question concerning jail credit, judges should interpret the existing statutory and case law with a fair amount of flexibility in favor of the defendant.  Again, quoting the Appeals Court:

We reject “an overly legalistic approach” toward jail credit matters…and rely on the “rule that would remedy the injustice of a prisoner serving time for which he receives no credit. Liberty is of immeasurable value; it will not do to read statutes and opinions blind to the possible injustice of denying credit.” 

Maldonado at 251.