Did Maryland reimburse counties for inmates on home detention the same way it reimbursed them for inmates physically held in the local jail?

Plain-English summary

Maryland's Secretary of Public Safety and Correctional Services asked the Attorney General two questions about state reimbursement to local jurisdictions under Article 27, §690 after a 1986 law shifted many shorter-sentence inmates from state Division of Correction custody into local detention centers. Some of those local jurisdictions had started placing sentenced inmates in home detention programs, which cost far less per day than housing someone physically in the jail (in one example roughly $20 a day for home detention versus $40 for a jail bed). The Secretary asked whether the state's reimbursement statute covered inmates on home detention at all, and if so, whether the state could set a separate, lower reimbursement rate for them instead of lumping them in with jailed inmates.

The opinion concluded that home detention inmates were covered. Although §690's key definition of "sentenced prisoners" spoke of persons "incarcerated in a local detention center," the opinion reasoned that a prisoner confined to home under supervision, with a significant restraint on physical liberty, was still "incarcerated," drawing an analogy to Michigan cases treating halfway-house and community-corrections placements as extensions of a "penal institution" for sentencing purposes (while distinguishing true parolees, who are not physically restrained). The opinion also pointed to the reimbursement formula's inclusion of "all costs directly associated with or directly attributable to" a facility's operation, legislative fiscal notes for 1990 home detention bills that assumed reimbursement would apply, and the General Assembly's recent authorization of local home detention programs, all of which supported reading the reimbursement statute to cover this cheaper form of custody rather than discourage it.

On the second question, the opinion concluded the statute did not allow a separate, lower per diem rate for home detention inmates. Section 690's per diem formula divides a facility's total actual operating costs by total prisoner days without any mechanism for subcategorizing prisoners by type. The opinion noted that including cheaper home detention days in the calculation would itself lower the facility's average operating cost, and therefore lower the state's total reimbursement, without needing a separate rate; if that indirect adjustment produced results the state considered excessive, the fix would have to come from the General Assembly amending the statute, not from the agency inventing a subcategory the statute did not provide for.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Maryland's home detention and local reimbursement statutes have since been recodified from Article 27 into the Correctional Services Article; verify the current statutory text before relying on any specific rule described here. A 1996 editor's note appended to the opinion in the bound volume records that in Dedo v. State, 343 Md. 2, 680 A.2d 464 (1996), Maryland's Court of Appeals held that a defendant in a home detention program was in "custody" for purposes of sentencing credit, a related but distinct question from the reimbursement issue addressed here.

Common questions

Did Maryland's 1991 reimbursement law cover inmates who were sentenced but placed in a home detention program instead of a jail cell? Yes. The opinion concluded that a home-detained inmate remained "incarcerated in a local detention center" within the meaning of Article 27, §690, given the significant restraint on the person's physical liberty, so the jurisdiction could count that inmate toward its reimbursement claim.

Could a county get a special, lower reimbursement rate for home detention inmates since they cost less to supervise? No. The opinion found that §690's per diem formula, total operating costs divided by total prisoner days, had no mechanism for a separate rate by prisoner type; the cheaper cost of home detention would instead work its way into a lower average per diem for the facility as a whole.

What would it have taken to create a separate reimbursement rate for home detention inmates? The opinion said that outcome would require the General Assembly to amend §690, since the existing statutory language did not provide a basis for the agency to create that subcategorization on its own.

Background and statutory framework

Article 27, §690's reimbursement provisions were added by Chapter 128 of the Laws of Maryland 1986, which phased in a higher minimum-sentence threshold (from three months up to twelve months) before an inmate fell under the state Division of Correction's jurisdiction, shifting many shorter-sentence inmates into local detention centers instead. To offset the added cost to those local facilities, §690(d)(2) required the state to reimburse jurisdictions under whichever of two formulas yielded more: a 90-to-365-day formula at 50 percent of the base rate under §690(d)(2)(i), keyed to the §690(d)(1)(iii) definition of "sentenced prisoners" as those serving more than three months; or an 85-percent formula under §690(d)(1)(i) and (ii) comparing actual prisoner days to a 1984-1986 historical average. Both formulas depend on a per diem rate defined in §690(i)(1) as a facility's total actual annual operating costs divided by its total actual prisoner days, with §690(i)(2) defining "operating costs" broadly to include "all costs directly associated with or directly attributable to" running the facility, and §690(i)(3) itemizing certain exclusions (including, under §690(i)(3)(iii), an offset for work-release prisoners' room-and-board payments).

At the time of the opinion, several Maryland counties, including Harford County under §645U(e), Baltimore City under §645W(a)(2), and Wicomico County, had statutory authority to run home detention programs (the opinion also noted a 1991 law, Chapter 59, House Bill 1059, that transferred the Baltimore City program's oversight to a new Commissioner of Pretrial Detention and Services). The opinion's statutory-construction analysis relied on Morris v. Prince George's County and In re Demetrius J. for the principle that statutory language is the starting point but not necessarily the end of construction, and on Baltimore County Coalition v. Baltimore County for reading language in light of legislative context and purpose. It analogized to Michigan sentencing-enhancement cases, People v. Walker and People v. Hegwood, which treated halfway houses and community-corrections placements as extensions of a penal institution (while People v. Sanders and the Walker court distinguished true parolees, who are not physically restrained), to support treating a home-detained inmate's residence as an extension of the local detention center. The opinion also cited its own prior opinion describing home detention, 75 Opinions of the Attorney General 373, 374 (1990), the 1990 legislative fiscal notes for House Bills 1354 and 609 recognizing that home detention costs would affect state reimbursement, and Chapters 586, 663, and 687 of the Laws of Maryland 1990 authorizing additional local home detention programs. On the rate-calculation question, it cited Kaczorowski v. City of Baltimore for the principle that a construction beyond a statute's literal terms may sometimes be needed to avoid results at odds with legislative intent, but found no textual basis in §690 for the separate rate the Secretary had asked about.

Citations and references

Statutes:

• Article 27, §690 of the Maryland Code, the local detention center reimbursement statute
• Chapter 128 of the Laws of Maryland 1986, enacting the reimbursement program alongside a phased Division of Correction jurisdiction threshold
• §690(d)(2), requiring reimbursement under whichever of two formulas yields more
• §690(d)(2)(i), the 90-to-365-day, 50-percent reimbursement formula
• §690(d)(1)(iii), defining "sentenced prisoners" as those serving more than three months
• §690(d)(1)(i) and (ii), the 85-percent formula comparing actual to historical average prisoner days
• §690(i)(1), the per diem calculation (operating costs divided by prisoner days)
• §690(i)(2), defining "operating costs" to include all costs directly attributable to the facility
• §690(i)(3), itemizing exclusions from the operating-cost numerator
• §690(i)(3)(iii), the work-release room-and-board offset
• §690(i)(4) and (5), referencing "the housing of State-sentenced prisoners"
• Article 27, §645U(e), Harford County's home detention authority
• Article 27, §645W(a)(2), Baltimore City's home detention authority
• Chapter 59 (House Bill 1059) of the Laws of Maryland 1991, transferring Baltimore City home detention oversight
• Chapters 586, 663, and 687 of the Laws of Maryland 1990, authorizing additional local home detention programs

Cases:

• In re Demetrius J., 321 Md. 468, 473, 583 A.2d 258 (1991), on statutory language as the starting point of construction
• Morris v. Prince George's County, 319 Md. 597, 603, 606, 573 A.2d 1346 (1990), on reading statutory words in context beyond a dictionary definition
• People v. Walker, 143 Mich. App. 479, 372 N.W.2d 596 (1985), treating a halfway-house placement as "incarcerated" for sentencing purposes
• People v. Hegwood, 109 Mich. App. 438, 311 N.W.2d 383 (1981), same, for a community corrections program
• People v. Sanders, 130 Mich. App. 246, 343 N.W.2d 513 (1983), distinguishing parolees as not "incarcerated"
• Baltimore County Coalition v. Baltimore County, 321 Md. 184, 203, 582 A.2d 510 (1990), on construing statutory language in light of legislative purpose
• Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987), on departing from literal statutory terms to avoid results contrary to legislative intent
• Dedo v. State, 343 Md. 2, 680 A.2d 464 (1996), a later Court of Appeals decision (noted in an editor's note) holding home detention counts as "custody" for sentencing-credit purposes

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 110-116 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.

CORRECTIONS

Reimbursement For Inmates in Home Detention Programs

June 19, 1991

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

You have requested our opinion on the scope of the program of State financial assistance to local jails under Article 27, §690 of the Maryland Code. Specifically, you ask:

1. Are local jurisdictions entitled to reimbursement under the statute for sentenced inmates who are in home detention programs?

2. If so, are the local jurisdictions entitled to the same rate of reimbursement for inmates in home detention programs as they are for inmates actually confined within the institution, or may reimbursement be made using two separate rates - one limited to the actual cost of the home detention program and another for the cost of maintaining an inmate within the physical confines of the facility?

For the reasons set forth below, we conclude as follows:

1. Local jurisdictions are entitled to reimbursement for inmates in
   home detention programs.

   2. The statute does not authorize a separate reimbursement rate for
      inmates in home detention programs. To the extent that home detention reduces a facility's operating costs, these lower costs will translate into less reimbursement under the statutory formulas.

                               I
      
                      Home Detention
      

   The General Assembly has authorized some local corrections
   officials to operate home detention programs. E.g., Article 27,
   §§645U(e) (Harford County), 645W(a)(2) (Baltimore City), and 645 II(a)(1)(iv) (Wicomico County).1 As we described it last year, home detention "refer[s] 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." 75 Opinions of the Attorney General 373, 374 (1990).

   A home detention program requires outlays for equipment and
   personnel, but it is much cheaper than housing an inmate in a facility. For example, we have been informed that in one jurisdiction, the per diem amount for an inmate housed in the jail is roughly $40.00. In that same jurisdiction, the per diem cost attributable to a home detainee is half that cost, approximately $20.00. In another jurisdiction, the per diem cost of housing an inmate is roughly six times that of a home detainee, approximately $31.00 compared to just under $5.00.

                                  II
   
                  Reimbursement Under §690
   

   The provisions of Article 27, §690 presently at issue were enacted
   as part of Chapter 128 of the Laws of Maryland 1986. In essence, Chapter 128 phased in an increase in the length of the minimum sentence that would require a judge to sentence an inmate to the jurisdiction of the Division of Correction. Instead of the Division's jurisdiction extending to offenders sentenced to at least three months imprisonment, gradually the Division's jurisdiction became limited to offenders sentenced to at least 12 months.

   The result was that inmates who previously would have been
   sentenced to the custody of the Division of Correction were instead placed in local detention centers. To alleviate the increased economic burden on local detention centers, a reimbursement program was established under Article 27, §690(d).

   Section 690(d)(2) provides that the State "shall reimburse" local
   jurisdictions under one of two formulas (whichever yields the greater amount):

   1
     As a result of Chapter 59 (House Bill 1059) of the Laws of Maryland
   

   1991, Article 27, §645W(a)(2) is amended to transfer the authority of the Commissioner of the Baltimore City Jail to operate a home detention program to the Commissioner of Pretrial Detention and Services, an official of the Department of Public Safety and Correctional Services.

   Under the first formula, §690(d)(2)(i), reimbursement is "for each
   day in excess of 90 days through day 365 that sentenced prisoners are confined in a local detention center. The rate of reimbursement shall be 50 percent of the rate set forth in subsection (i) ...." The term "sentenced prisoners" means "those persons incarcerated in a local detention center, after sentencing to the custody of the local detention center, serving sentences of more than 3 months." §690(d)(1)(iii) (emphasis added).

   The second formula provides payment at "85 percent of the rate of
   reimbursement set forth in subsection (i)," for "the difference between the actual number of prisoner days for the prior fiscal year and the average number of prisoner days." Section 690(d)(1)(i) defines "actual number of prisoner days" as "the number of total prisoner days served by sentenced prisoners with sentences of more than 3 months and not more than 12 months." The other component of this calculation, "Average number of prisoner days," means "the average number of days served by sentenced prisoners during fiscal years 1984, 1985, and 1986 who are sentenced for more than 3 months and not more than 12 months." §690(d)(1)(ii).

   The "rate of reimbursement" under either formula depends on a per
   diem calculation prescribed in §690(i)(1): "the total actual annual operating costs of [the] local facility for the previous fiscal year divided by the total actual prisoner days of the facility for the previous fiscal year." These "operating costs" are to include "all costs directly associated with or directly attributable to the ... operation of the facility." §690(i)(2).

                               III
   
   Application of §690 to Prisoners in Home Detention
   

A. Coverage of Prisoners

"'[T]he beginning point of statutory construction is the language of the statute itself.'" In re Demetrius J., 321 Md. 468, 473, 583 A.2d 258 (1991) (quoting Morris v. Prince George's County, 319 Md. 597, 603, 573 A.2d 1346 (1990)).

The language of §690 suggests that the General Assembly's focus, understandably, was on prisoners actually housed in a local detention facility. When the key definition of "sentenced prisoners" in §690(d)(1)(iii) speaks of "persons incarcerated in a local detention center," the primary reference undoubtedly is to those physically confined in the facility. See Black's Law Dictionary 760 (6th ed. 1990); Webster's New International Dictionary 1256 (2d ed. 1953). Indeed, in the provision detailing reimbursement procedures, the statute uses the phrase "the housing of State-sentenced prisoners." §690(i)(4). See also §690(i)(5).2

Yet we cannot say that the General Assembly's choice of this language conclusively evidences a decision to exclude home detention prisoners from the reimbursement program. "A dictionary is a starting point in the work of statutory construction, but not necessarily the end.... Words have many meanings. To determine the most appropriate one in given circumstances requires more than a glance at a dictionary. It requires careful study of the context in which the word is used." Morris v. Prince George's County, 319 Md. 597, 606, 573 A.2d 1346 (1990).

For example, a Michigan statute provides that a person who commits a crime while "incarcerated in a penal or reformatory institution" is to receive a consecutive sentence for that crime. Michigan courts have applied the statute to persons who committed crimes while on authorized leave from a half-way house and in a community correction program. People v. Walker, 143 Mich. App. 479, 372 N.W.2d 596 (1985); People v. Hegwood, 109 Mich. App. 438, 311 N.W.2d 383 (1981).

These cases, interestingly, hold that the statute does not apply to parolees, even though parolees under Michigan law remain under the legal custody of that state's department of corrections. Walker, 372 N.W.2d at 598. See also People v. Sanders, 130 Mich. App. 246, 343 N.W.2d 513 (1983). Those whose liberty is physically restrained, even if the restraint takes place outside of the institution itself, are "incarcerated"; those free to go as they please, subject only to reporting obligations, are not.

In this sense, a person in home detention is "incarcerated." The surroundings may be far more congenial than a jail cell, but the significant element of physical restraint remains. And the person is incarcerated "in a local detention center," in the sense that the prisoner's home can be said to be an extension of the local detention center, just as the Michigan courts saw a half-way house or community program as an extension of a "penal institution."

We doubt that any large-scale home detention program was operating in Maryland in 1987, when the reimbursement mechanism was enacted.

This inclusive reading of "incarcerated in a local detention center" better comports with the breadth of language elsewhere in §690. We are to "consider not only the literal or usual meaning of those words, but their meaning and effect in the context in which the words were used, and in light of the setting, the objectives, and purpose of the enactment." Baltimore County Coalition v. Baltimore County, 321 Md. 184, 203, 582 A.2d 510 (1990).

The core of the reimbursement calculation is the "total annual actual operating costs," which include "all costs directly associated with or directly attributable to the ... operating of the facility." §690(i)(2). Surely the equipment and personnel costs of a home detention program run by a local detention center are part of the facility's operating costs. The exclusion of these costs would be inconsistent with the legislative goal of factoring "all costs" into the reimbursement formulas.

Nor should we ignore the fact that the General Assembly has recently authorized some local jurisdictions to initiate home detention programs. See Chapters 586, 663, and 687 of the Laws of Maryland 1990. If §690 were construed to make the costs of these programs ineligible for reimbursement, a potentially worthwhile way of relieving jail overcrowding would be discouraged.

Indeed, the legislative history of two of the home detention bills directly recognizes that the costs of a home detention program are reimbursable. The fiscal note for one stated that "[i]ncreased costs associated with home detention could increase the cost of State reimbursement to the local facility ...." Fiscal Note (Revised) for House Bill 1354 (1990 Session).3 The other fiscal note, for House Bill 609 (1990 Session), likewise recognized that "costs associated with additional [home detention program] participation could increase the per diem cost of State reimbursement to the local facility."

On balance, then, we conclude that local jurisdictions are entitled to include prisoners on home detention for purposes of reimbursement under §690.

3
This fiscal note went on to observe that "[i]ncreased local revenues resulting from fees collected from individuals on home detention could decrease the cost of State reimbursements. However, so long as the number of participants and the costs and fees ... remain relatively small, the net effect should not significantly affect State expenditures."

B. Calculation of Rate

As discussed in Part II above, reimbursement is based on a per diem calculation - "the total actual annual operating costs ... divided by the total actual prisoner days ...." §690(i)(1). The statute itemizes cost elements that are not included in the numerator of this fraction, §690(i)(3), but does not provide for any further adjustment of the per diem.

Your opinion request points out that the cost of maintaining a prisoner in home detention is much lower than if the prisoner were physically in the local jail. See Part I above. You ask whether a separate, lower per diem can be set for home detention prisoners, to avoid excess reimbursement if these prisoners were lumped with the others.

In our view, the statute simply does not allow for that subcategorization. Section 690 affords no basis for calculating different per diems for different classes of prisoners.

We acknowledge that a construction beyond a statute's terms may be called for to avoid a result plainly at variance with the legislative objective. See Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987). But there is nothing intrinsically wrong with including home detention prisoners in calculating a single per diem rate. The existing statute takes at least some account of cost differentials among different types of prisoners. The lower cost of maintaining these prisoners will, in the long run, translate into lower "total annual actual operating costs" and therefore lower State reimbursement. In addition, the local facility's operating costs would be net of any contribution by home detention prisoners. §690(i)(3)(iii).4

4 This provision likewise ensures that the State's reimbursement is reduced by the amount of "room and board payments" by prisoners on work release - another category of prisoner with lower marginal costs than prisoners in the jail 24 hours a day.

In short, we conclude that the current reimbursement calculation should be applied to home detention prisoners without special adjustment. If the result is excess reimbursement, the General Assembly should be asked to amend §690.5

IV

Conclusion

In summary, it is our opinion that:

1. Local jurisdictions are entitled to reimbursement for inmates in
   home detention programs

   2. The statute does not authorize a separate reimbursement rate
      for inmates in home detention programs.

                                            J. Joseph Curran, Jr.
                                            Attorney General
      
                                            Jack Schwartz
                                            Chief Counsel
                                            Opinions and Advice
      

      5
      The Fiscal Note to House Bill 1354, discussed in text in Part IIIA
      above, assumed that the per diem rate would be the same for all prisoners. Both fiscal notes recognized that the fees paid by home detention prisoners would indirectly reduce State reimbursement costs.

Editor's Note:

In Dedo v. State, 343 Md. 2, 680 A.2d 464 (1996), the Court of Appeals concluded that a convicted defendant was in "custody," for purpose of sentencing credit, while in a home detention program.