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July 24, 1991

HELEN D. WOODSON, Plaintiff,
U.S. DEPARTMENT OF JUSTICE, et al., Defendants

Charles R. Richey, United States District Judge.

The opinion of the court was delivered by: RICHEY


 The Plaintiff, an inmate at the Federal Correctional Institute at Mariana, Florida (hereinafter, "FCI Mariana"), seeks a declaratory judgment to permit her to "waive" good time credits to which she is entitled pursuant to 18 U.S.C. § 4161, et seq., and thereby to prolong her confinement. The Defendant prison officials denied Plaintiff's request to waive good time because the governing legislation provides that, "except as provided a prisoner shall be released at the expiration of his term of sentence less the time deducted for good conduct." 18 U.S.C. § 4163 (emphasis added). See Plaintiff's Complaint, Exhibit 2. In response to this Court's April 19, 1991 Opinion and Order, the Defendants filed a Motion to Dismiss, alleging that, as a matter of law, Plaintiff has no right to waive accrued good time credits. Upon consideration of the Defendants' motion, the Plaintiff's response, *fn1" the applicable law, and the record herein, the Court hereby denies the Defendants' motion to dismiss and grants the Plaintiff's motion for summary judgment.

 Summary judgment is appropriate when the moving party can "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). There is no dispute in this case that the Plaintiff has accrued good time credits. Rather, the dispute centers on whether, as a matter of law, the Plaintiff can waive the good time credits to which she is entitled in favor of remaining incarcerated. Upon a closer review of the law and the legislative purpose of the good time credit system, the Court concludes that the Plaintiff may waive her accrued good time credits.

 Prisoners have no "right" to a good time credit system. However, once such a system is in place, the prisoner does have a legal interest in any accrued credits, and prison officials have no discretion to deny release. See Weber v. Willingham, 356 F.2d 933 (10th Cir.), cert. denied, 384 U.S. 991, 16 L. Ed. 2d 1008, 86 S. Ct. 1897 (1966); La Magna v. U.S. Bureau of Prisons, 494 F. Supp. 189 (D.Conn. 1980). See also 18 U.S.C. § 4163 (requiring prison officials to release inmate upon valid accrual of good time credit). Cf. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (while there is no right to benefits of a parole system, revocation of accrued parole benefits requires some due process procedures). Thus, by the very context of the statute and the prevailing case law, the Plaintiff has a right, or entitlement, to use her accrued good time credit in reducing the period of incarceration. *fn2"

 One is not obligated to exercise a right or privilege -- even when collateral benefits to society may be lost as a result. This ability to waive rights and privileges makes eminent sense, for compelling one to accept a right or privilege nullifies free will and the power to choose -- the raison d'etre of rights and privileges. While this "right" to refuse privileges or rights is not included in the Constitution and the Bill of Rights, the Ninth Amendment instructs courts not to construe the Constitution and the Bill of Rights as an express delineation of the rights of the people. See 3 J. Story, Commentaries on the Constitution of the United States 715-16 (1833). See also L. Tribe, American Constitutional Law § 11-3, at 774-777 (2d ed. 1988). For this reason, American citizens are not compelled to vote and are not compelled to speak out on public issues, even though society may ultimately pay the cost of these decisions. Cf., e.g., Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938) (may waive Sixth Amendment right to counsel, provided it is knowing and voluntary); Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969) (may waive right against self-incrimination, confrontation, and right to jury trial); Tollett v. Henderson, 411 U.S. 258, 262, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973) (guilty plea waives right to challenge deprivation of non-jurisdictional Constitutional rights prior to trial); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (waiver of Fourth Amendment rights by consenting to warrantless search). See generally J. Palmer, Constitutional Rights of Prisoners § 9.4.6, at 146 (4th ed. 1991).

 Presumably, Defendants' argument centers on the idea that society will directly pay the costs of the Plaintiff's decision to waive her good time credits. Defendants offer no legal basis for denying Plaintiff's ability to waive good time credits on these grounds. In fact, in light of the parole policies, it is doubtful that Defendants can articulate a rational basis for the refusal to allow waiver of good time credits. As the Plaintiff correctly points out, by statute, an inmate has the right to decline consideration for parole. See Exhibit 3, Plaintiff's May 30, 1991 Opposition. See also 28 C.F.R. § 2.11 (b) ("A person may knowingly and intentionally waive any parole consideration on a form provided for that purpose"). If the Bureau of Prisons will permit society to pay the costs of a parolee's choice, there is no reason why recipients of good time credits do not deserve the same option.

 Rather than focusing on the pivotal question of waiver, Defendants offer reasons why waiver would not be advisable as a matter of social policy. None of these arguments overcome the presumption that one can waive or refuse to exercise rights or privileges. Moreover, none of the social policy arguments are persuasive.

 According to the Defendants, allowing the Plaintiff to waive good time credit would allow her to prolong her confinement for a period of time longer than is statutorily mandated. This argument falters, however, because release for good time reduces the amount of time which the inmate must spend in prison just as parole reduces the amount of prison time. Pursuant to 28 C.F.R. § 2.11 of the parole regulations, inmates may already "opt" to remain in jail for a longer period of time than is statutorily mandated. It hardly seems unnatural or unfair to allow an inmate beneficiary of good time credits to do the same.

 Accordingly, it is, by this Court, this 24 day of July, 1991,

 ORDERED that the Plaintiff's Motion for Summary Judgment shall be, and hereby ...

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