sentence in prison. She claims that she desires to remain in prison for religious reasons. See Plaintiff's May 30, 1991 Opposition at 4. Defendants object to waiver of good time credit, arguing that there is no right to prolonged confinement at government expense, and that allowing Plaintiff to waive her good time would hamper prison management. See Defendants' Motion to Dismiss at 5-6. However, the Defendants fail to discuss the most important aspect of this case -- namely, whether one is obligated to accept a right or privilege to which he or she is entitled.
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.
The Defendants also contend that allowing an inmate to waive good time credit would frustrate the ability of prisons to handle overcrowding problems. This argument is also untenable. First, as explained above, inmates may waive parole consideration despite the fact that this decision might effectively increase the prison population. It is illogical to deny beneficiaries of good time credits the ability to do the same. Second, the Defendants' assertion that good time credits are designed to decrease prison populations is unsupported. This theory has no textual support in the statute or its legislative history. Indeed, the legislative history clearly proclaims that good time credit system was enacted "to grant  rewards to prisoners as incentives to good behavior and rehabilitation." S. Rep. No. 108, 80th Cong., 1st Sess. 1, reprinted in 1947 U.S. Code Cong. & Admin. News 1070. Thus, the credit is a reward belonging to the prisoner and, as such, the prisoner should be able to refuse it.
Finally, Defendants' overcrowding argument strains credibility because it is doubtful that many prisoners would choose to remain in prison when given the choice of returning to the "outside" world. Any increase in overcrowding as a result of allowing waiver of good time credits would be negligible, at best.
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 is, GRANTED; and it is
FURTHER ORDERED that the Defendants' Motion to Dismiss shall be, and hereby is, DENIED; and it is
FURTHER ORDERED that the above-captioned case shall be, and hereby is, DISMISSED from the dockets of this Court.