Can a Maryland sheriff put an inmate on home detention without a court order?

Plain-English summary

Maryland's Secretary of Public Safety and Correctional Services asked whether counties could run "home detention" programs, confining an inmate to home and monitoring compliance electronically or by phone, under the "employment of prisoners" subtitle of Article 27, and whether new legislation was needed to authorize such programs.

The Attorney General concluded that a sheriff's basic legal duty is to keep prisoners in actual jail custody, "strict confinement under lock and key," and that duty can be relaxed only by a statute or a court order. Reviewing Article 27's employment-of-prisoners provisions (§§645K through 645BB), the AG found that they let a sentenced prisoner work outside jail during work hours, but every version of the provision requires the prisoner to be confined in jail during non-working hours "unless the court shall direct otherwise." In other words, the statute permits home detention only as something a sentencing court can order, not as an independent program a sheriff or county can create on its own initiative. If Maryland wanted to give sheriffs or corrections officials the discretion to place inmates on home detention without a court order, the opinion concluded, that would require new legislation.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article 27's criminal provisions have since been recodified into the Criminal Law and Correctional Services Articles, and Maryland has since enacted dedicated home-detention statutes.

Common questions

What is a sheriff's basic legal duty toward people in custody?
Under Maryland common law, a sheriff must "safely keep" everyone committed to the sheriff's custody, which Maryland courts have read to mean actual confinement in jail, under lock and key, unless a statute or court order provides otherwise.

Does the "employment of prisoners" law let counties run home detention on their own?
No, according to this opinion. Every provision the AG reviewed in Article 27's employment-of-prisoners subtitle requires a working prisoner to return to confinement during non-work hours "unless the court shall direct otherwise," meaning home detention under that subtitle depends on a court's direction, not a sheriff's or county's independent choice.

If a court orders home detention for a work-release prisoner, is that legal?
Yes. The opinion concluded that courts may authorize home detention of prisoners in a work-release status under the existing statute; what the statute does not allow is home detention without court approval.

Would new legislation be needed for sheriffs to run home detention programs on their own?
Yes, according to the opinion's second conclusion: if policymakers want sheriffs or other custodial officials to have independent discretion to assign inmates to home detention, that would require authorizing legislation beyond what existed in 1990.

Background and statutory framework

A sheriff's duty to keep prisoners in custody traces to the common-law and statutory obligation to "safely keep" committed persons, which Maryland courts have equated with confinement in jail (Cocking v. Wade; Baumgartner v. State, holding that "[o]nly a court order or a statute can release a sheriff of his responsibility to keep prisoners committed to his charge in ... 'strict confinement under lock and key'"). In some counties that duty runs to another official rather than the sheriff (Article 87, §§48, 48A; Article 25A, §5(c)), but the opinion found the same rule applies to whichever official holds custody (Epps v. Levine).

Article 27, §645K lets a sentencing judge direct that a convicted prisoner continue or obtain employment during the prisoner's sentence, with the sheriff or the Division of Parole and Probation arranging the work. But §645L requires that "[w]henever the prisoner is not employed, and between the hours or periods of employment, he shall be confined in jail unless the court shall direct otherwise," and the opinion found the same limitation repeated in the county-specific work-release provisions it reviewed (for example, Montgomery County's §645T(b), and similar language in §§645U(b), 645V(a), 645W(a)(2), 645Y(h), 645Z(a), and 645BB(b)(4)). Because every one of these provisions conditions release from jail during non-work hours on a court's direction, the AG concluded the subtitle authorizes home detention only pursuant to court order, not as an independently available program, and that expanding it beyond court-ordered work release would require new legislation.

Citations and references

Statutes:

• Article 27, §§645K-645BB of the Maryland Code (employment of prisoners subtitle; home detention only on court direction)
• Article 87, §45 of the Maryland Code (sheriff's duty to keep prisoners in custody)
• Article 87, §§48, 48A; Article 25A, §5(c) of the Maryland Code (custody duty in certain counties)

Cases:

• Baumgartner v. State, 21 Md. App. 251 (1974) ("[o]nly a court order or a statute" can relieve a sheriff of the duty to keep prisoners under lock and key)
• Cocking v. Wade, 87 Md. 529 (1898) ("safely keep" means confinement in jail)
• Epps v. Levine, 457 F. Supp. 561 (1978) (custodial officials other than the sheriff share the same confinement duty)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1990/Volume75_1990.pdf (this opinion appears at printed pages 373-376 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PRISONERS

Sheriffs -- Home Detention -- "Employment of Prisoners" Subtitle of Article 27 Authorizes Home Detention Pursuant to Court Order Only

February 26, 1990

The Honorable Bishop L. Robinson
Secretary of Public Safety and
Correctional Services

You have requested our opinion on two questions regarding "home detention" of inmates:

1. Does the "employment of prisoners" subtitle of Article 27 of the Maryland Code authorize counties to conduct home detention programs?

2. Is legislation advisable or necessary for counties to have home detention programs?

For the reasons stated below, we conclude as follows:

1. The "employment of prisoners" subtitle of Article 27 permits home detention pursuant to court authorization only.

2. Legislation is necessary if counties are to be authorized to have home detention programs that do not require court approval.

I

Background

Each sheriff in Maryland has a legal duty to "safely keep all persons committed to his custody by lawful authority until such persons are discharged by due course of law." The term "safely keep" means keep in jail. Cocking v. Wade, 87 Md. 529, 40 A. 104 (1898); Baumgartner v. State, 21 Md. App. 251, 319 A.2d 592 (1974). In the latter case, the Court of Special Appeals observed that "[o]nly a court order or a statute can release a sheriff of his responsibility to keep prisoners committed to his charge in ... 'strict confinement under lock and key.'" 21 Md. App. at 263 (citation omitted).

By "home detention," you refer to the confinement of an inmate to his or her home. The confinement is enforced by various means, including prescribed electronic or telephonic contact at regular intervals.

Because an inmate confined at home is obviously not under lock and key in jail, a sheriff may conduct a program of home detention only if a statute or court order authorizes it.[1] As we explain in Part II below, no provision of the "employment of prisoners" subtitle of Article 27, §§645K through 645BB, impliedly authorizes home detention.

II

Employment of Prisoners

Article 27, §645K states as follows:

    Whenever a person shall be convicted of a crime and sentenced to imprisonment in any county, town, or city jail by any court in the counties to which this subtitle applies, the judge imposing sentence may prescribe that insofar as possible the person may continue his regular employment or obtain new employment while serving the term of his sentence and the judge shall designate either the sheriff or Division of Parole and Probation to supervise, arrange for or obtain such employment.

    If a convicted person has been regularly employed, the sheriff or the Division of Parole and Probation shall arrange for a continuation of said work insofar as possible without interruption. The sheriff or the Division of Parole and Probation shall make every effort to secure some suitable employment for the prisoner if he is not employed in any job. The sheriff or the Division of Parole and Probation shall try to obtain employment for the prisoner paying a fair and reasonable wage, and the prisoner shall work at fair and reasonable employment and fair and reasonable hours per day and per week.

This provision does not generally authorize home confinement of prisoners engaged in employment, however, because the next section of the subtitle states as follows: "Whenever the prisoner is not employed, and between the hours or periods of employment, he shall be confined in jail unless the court shall direct otherwise." §645L. Thus, courts may authorize home detention of work-release prisoners, but home detention without court approval is forbidden by the statute.

The same limitation is contained in sections of the subtitle applicable to particular counties. For example, Montgomery County is authorized to establish work release and pre-release programs, but "[w]henever the prisoner is not employed or otherwise participating in his work release program, he shall be confined in the pre-release center unless the committing court shall direct otherwise." §645T(b). See also §§645U(b), 645V(a), 645(W)(a)(2), 645Y(h), §645Z(a), and 645BB(b)(4).

None of these provisions states an exception to the sheriff's duty under Article 87, §45 to keep inmates in jail. To the contrary, they reiterate the sheriff's responsibility to keep these inmates in the same place of confinement as other prisoners during the time when they are not employed or otherwise properly released, unless a court directs otherwise.

III

Conclusion

Under the applicable provisions of public general law, both pre-trial detainees and sentenced inmates who are confined in local jails or other detention facilities may be placed in home detention if, but only if, a court so directs.[2] If, as a policy matter, sheriffs or other officials responsible for the custody of prisoners ought to have the independent discretion to assign them to home detention, authorizing legislation is necessary.

                                          J. Joseph Curran, Jr.
                                          Attorney General

                                          Jack Schwartz
                                          Chief Counsel
                                            Opinions and Advice

[1] In some jurisdictions, the duty to keep certain detainees in custody has been transferred from the sheriff to another official. See Article 87, §§48 and 48A. See also Article 25A, §5(c) (power of the charter home rule counties to "regulate and control county jails, and county houses of correction or detention and reformatories, and to regulate all persons confined therein"). See generally Epps v. Levine, 457 F. Supp. 561, 565 n.2 (1978). However, these other officials have the same duty as the sheriff, to maintain detainees in a secure facility unless a statute (or court order) authorizes an alternative form of confinement.

[2] We have not canvassed all provisions of public local law potentially affecting this question.