Maryland Attorney General Opinion 110OAG110

110 [110 Op. Att’y

CORRECTIONS

SHERIFFS – LOCAL JAILS – WHETHER KENT COUNTY MAY

CLOSE ITS COUNTY JAIL – WHETHER THE COUNTY MAY

RELY ON A PER DIEM CONTRACT WITH ANOTHER COUNTY

TO HOUSE INCARCERATED INDIVIDUALS

December 23, 2025

The Honorable Dennis W. Hickman, Jr.

Sheriff, Kent County

You have asked whether Kent County (the “County”) may

close its only jail and rely entirely on contracts with neighboring

counties to house incarcerated individuals at a per diem rate. For

the reasons that follow, we conclude that State law prohibits this

course of action. The Correctional Services Article makes one

official in each county—by default, the Sheriff—responsible for

the safekeeping of people committed to local custody. Although

the statutes governing that safekeeping responsibility do not say so

explicitly, they imply that the official must carry out the

responsibility by holding these people in a jail of the county. Each

county, for its part, has a statutory obligation to fund its jailer and

must therefore pay for this facility. A county may satisfy this

obligation by joining with one or more other counties to establish

a multi-jurisdictional jail for which they share responsibility. But

unlike the legislatures of some other states, the General Assembly

has not authorized Kent County or any other county to dispense

with its own facilities by paying for jail services elsewhere, in

facilities that it does not help to manage or oversee. In fact, if a

county were to close its jail entirely, judges in that county would

have no facility to which they could sentence a person to a term of

imprisonment of one year or less.1

I

Background

A “jail,” as we use the term here, is a local government facility

capable of housing pretrial detainees as well as people convicted of

crimes who are serving short sentences. Black’s Law Dictionary

(12th ed. 2024); see, e.g., 93 Opinions of the Attorney General 92,

1

The analysis of county responsibilities in this opinion does not apply

to Baltimore City. In that jurisdiction, unlike in the counties, State law

provides for the State to operate the jail facilities. Md. Code Ann., Corr.

Servs. §§ 1-101(q)(2), 11-101; see 93 Opinions of the Attorney General

92, 93 n.1 (2008).

Gen. 110] 111

93 (2008) (using “jail” in this sense); 62 Opinions of the Attorney

General 829, 833 (1977) (same). A jail is a type of “local

correctional facility,” which is a broader term used throughout the

Correctional Services Article that also encompasses “lockups” and

other types of holding rooms suitable only for brief confinement

pending a hearing or transfer. See Md. Code Ann., Corr. Servs.

(“CS”) § 1-101(d), (l) & Rev. Note; 99 Opinions of the Attorney

General 3, 8-9 (2014).

Every county in Maryland currently has a jail. See

Governor’s Office of Crime Prevention and Policy, Local

Detention Center Population Statistics [hereinafter “Jail

Population Statistics”] (showing pretrial and sentenced jail

populations in every county going back to 2014).2 This has long

been the case, as far as we can tell. In 1674, the colonial General

Assembly required every county to build a “prison” within the

ensuing two years to allay the “great dishonor” that the lack of such

facilities had caused the Government. 1674 Md. Laws, ch. 16.3 At

that time, county facilities were mainly necessary to house pretrial

detainees, as convicted offenders were not traditionally

incarcerated. See Maryland Manual, Department of Public Safety

& Correctional Services: Origin, https://msa.maryland.gov/msa/

mdmanual/22dpscs/html/dpscsf.html (last visited Dec. 16, 2025).

Thereafter, even when a county lacked an adequate jail for some

reason, it appears that the situation was not permitted to endure

long. In early State laws, the General Assembly often intervened

to provide for the construction or replacement of county jails if

existing facilities did not meet local needs. E.g., 1794 Md. Laws,

ch. 67 (providing for the reconstruction of the Talbot County jail,

which was in a “ruinous condition” and “incapable of repair”);

1792 Md. Laws, ch. 39 (similar for Kent County); 1793 Md. Laws,

ch. 17 (mandating the construction of a courthouse and jail in

Allegany County following its founding in 1789); 1780 Md. Laws,

ch. 37 (providing for a new “gaol” in Dorchester County).4 Later,

2

Available at https://app.powerbigov.us/view?r=eyJrIjoiMzJlNmRh

ZmEtMWI1MC00NDYzLWE5NjUtYTU2NTk4MWU3ZTRiIiwidCI6

IjYwYWZlOWUyLTQ5Y2QtNDliMS04ODUxLTY0ZGYwMjc2YTJl

OCJ9 (last visited Dec. 16, 2025).

3

See Maryland Manual, Department of Public Safety & Correctional

Services: Origin, https://msa.maryland.gov/msa/mdmanual/22dpscs/

html/dpscsf.html (last visited Dec. 15, 2025).

4

Other sources show that new counties prioritized the construction of

jails. Mary Ann Ashcraft, Carroll Yesteryears: Carroll County’s

Beginnings Included a Jail, Free Schools, Carroll County Times (Dec.

112 [110 Op. Att’y

when the Worcester County jail burned down, the General

Assembly set up a fund for the construction of a new facility, which

it considered “imperative.” 1894 Md. Laws, ch. 250.

Kent County has one jail, the Kent County Detention Center

(the “Detention Center”), which you currently oversee as Sheriff.

The facility typically houses approximately fifty detainees.5 See

Jail Population Statistics (click on “Kent”). Roughly two-thirds of

them are pretrial detainees, and the others are serving short

sentences. Id. You tell us that the facility is old and short-staffed.

It is also expensive for the County to operate. Like many counties,

Kent County spends much of its public safety budget on the

Detention Center. See County Commissioners of Kent County,

Annual Comprehensive Financial Report for FY2024 at 69;6

Littman, supra note 4, at 884 (“[J]ails’ annual operating budgets

. . . make up a significant portion of routine local government

spending” in the United States.).

The County Commissioners hope to reduce the County’s

correctional expenses. To that end, the Commissioners recently

began exploring the idea of establishing a joint correctional facility

with neighboring Queen Anne’s County, which has a detainee

population of a similar size. See Jail Population Statistics (click

on “Queen Anne’s”). Counties have explicit statutory authority to

establish such joint facilities, CS § 11-102, which fall under the

definition of “local correctional facility,” CS § 1-101(l)(1). But

this idea will take time to pursue.

In the interim, the County has decided to pay neighboring

counties to house some of its detainees. This arrangement

apparently costs less than housing detainees at the Detention

Center. In July 2025, you and the County Commissioners executed

7, 2019) (discussing a historical source showing that the Carroll County

Commissioners immediately took up the business of building a jail upon

the County’s founding in 1837 and that they designated a “temporary

place of incarceration” for the Sheriff’s use in the meantime); see

generally Aaron Littman, Jails, Sheriffs, and Carceral Policymaking, 74

Vand. L. Rev. 861, 931 & n.315 (2021) (discussing the Carroll County

Times article and other sources showing that “jails were among the first

public buildings erected in newly formed counties” in the United States).

5

The statutory term for people confined in State or local custody is

“incarcerated individual.” CS § 1-101(k). For brevity, we use the term

“detainee” in this opinion for people held in local jails.

6

Available at https://cms2.revize.com/revize/kentcountymd/Docume

nts/Finance/ACFR%202024.pdf.

Gen. 110] 113

an agreement with the Queen Anne’s County Detention Center,

under which the County will pay Queen Anne’s County $125 per

day per detainee housed. The County has transferred twelve

detainees to the Queen Anne’s County Detention Center under this

agreement to date, according to your letter. The County is also

pursuing, but has not yet finalized, a similar per diem rate

agreement with Talbot County.

Your question concerns a related proposal by one of the

County Commissioners that would go further. Under the proposal,

as you explain it, the County would shut down the Detention

Center’s boarding function and rely entirely on per diem contracts

with neighboring counties to house pretrial detainees and sentenced

offenders. The Detention Center would thereafter function only as

a temporary holding facility or lockup, capable of detaining people

for just a few hours during booking.

You ask whether this proposal would comply with State law.

In particular, you point out that § 9-105(2) of the Correctional

Services Article authorizes a judge to sentence an individual to a

“local correctional facility” only if “the judge imposing the

sentence is in a jurisdiction that is a party to the operation and

maintenance of the local correctional facility to which the

individual is sentenced.” You ask whether this statute would allow

a judge in Kent County to sentence a person to a jail in a

neighboring county with which Kent County has contracted for jail

services at a per diem rate.

II

Analysis

To determine whether Kent County could effectively close

the Detention Center and pay another county to house its detainees

in the other county’s jail, we must first address a threshold

question: whether Maryland law requires Kent County to have a

jail in the first place or, at least, to be a “party to the operation and

maintenance” of a jail. Because, as we will explain, we conclude

that Maryland law does impose that requirement, the second (and

primary) issue is whether a county may establish a shared jail—or,

put differently, whether a county may become a “party to the

operation and maintenance” of a jail—merely by paying another

county to house detainees in the other county’s jail. For reasons

that we explain below in Part II.B, we do not think so: Although

the contours of Maryland’s shared jail program are opaque and

largely unexplored, we think the program requires a participating

114 [110 Op. Att’y

county to go beyond the purchase of jail services and to take a stake

in the jail facility itself.

At the outset, we note that these issues require us to interpret

the State’s corrections and sentencing statutes to ascertain the

Legislature’s intent in enacting them. For that task, we rely

primarily on the statutory language, read in proper context, and also

consider, among other factors, the underlying purpose of the

legislation and its history. See Williams v. State, 492 Md. 295,

306-08 (2025). “In every case, [a] statute must be given a

reasonable interpretation, not one that is absurd, illogical, or

incompatible with common sense.” Mayor and City Council of

Baltimore v. Wallace, 492 Md. 349, 368 (2025) (quoting Lockshin

v. Semsker, 412 Md. 257, 276 (2010)). Under these principles,

even where a statutory scheme does not impose a requirement

explicitly, the context, history, and purpose of the statutes in

question—and the need to avoid illogical consequences—may

nonetheless favor interpreting the statutes to impose a requirement

implicitly. See, e.g., Cassidy v. Board of Educ., 316 Md. 50, 52 n.2

(1989) (recognizing an implicit statutory requirement); 100

Opinions of the Attorney General 85, 99 (2015) (concluding that

“the only reasonable way to read the statute” in question was that

it imposed an “implicit[]” requirement); 64 Opinions of the

Attorney General 341, 344 (1979) (concluding that a statute

“necessarily implies a requirement” applicable to a local legislative

body); see also Bethesda African Cemetery Coal. v. Housing

Opportunities Comm’n, 489 Md. 1, 62 (2024) (explaining that

courts may interpret permissive statutory language as mandatory

due to “context-specific” considerations).

A. The County’s Obligation to Establish a Jail

We first consider whether Maryland law requires each county

to have its own jail or at least to establish a shared jail with one or

more other counties.

To begin, no statute explicitly requires each Maryland county

to have a jail. The laws of some other states do.7 Conversely, the

7

E.g., Texas Code Ann., Local Gov’t § 351.001(a) (“The

commissioners court of a county shall provide safe and suitable jails for

the county.”); N.Y. County Law § 217 (“Each county shall continue to

maintain a county jail as prescribed by law.”); W. Va. Code § 7-3-2

(“The county commission of every county, at the expense of the county,

shall provide at the county seat thereof a suitable courthouse and jail

. . . .”); see also Curtis v. Lincoln County, 136 Minn. 25, 27 (1917) (“The

Gen. 110] 115

statutes of some states, in accommodating situations where a

county lacks a jail, make plain that a county need not have one.8

But the Maryland Code does not contain statutes of either type.

Although two Maryland statutes authorize counties to

establish “local correctional facilities,” the statutory term that

encompasses jails, that also does not resolve the question. CS

§ 11-102(a) (providing that any county may establish such a

facility); Md. Code Ann., Local Gov’t § 10-304(c) (providing that

charter and code counties may “establish and maintain local

correctional or detention facilities” and “regulate all individuals

confined in the facilities”); see generally 85 Opinions of the

Attorney General 338, 344 (2000). We do not think that these

authorizations for a county to establish a jail or a shared jail may

be read in their own right to mandate that a county establish one

such facility, because they use the term “may,” which is ordinarily

read not to impose a mandate. See Uthus v. Valley Mill Camp, Inc.,

472 Md. 378, 395 (2021) (describing the “Court’s long history of

interpreting the statutory term ‘may’ as discretionary, as opposed

to the mandatory term ‘shall’”).

In a similar vein, some public local laws impose an explicit

duty on particular counties to pay the expenses of the county jail.

See Somerset County Code of Public Local Laws § 12-102 (2003)

(“The County Commissioners shall furnish all food, fuel, and light

needed for the County Detention Center . . . .”); Washington

County Code of Public Local Laws § 3-201 (2019) (requiring the

County to provide funds “for keeping each prisoner in the county

jail” and “for necessary fuel for the jail”). But even if these county-

specific enactments of the General Assembly could be interpreted

to prohibit the counties in question from eliminating their own

facilities, we have not identified a measure of this sort for Kent

statutes make it the duty of the county board to provide a courthouse and

jail . . . .”); Wehn v. Gage County Comm’rs, 5 Neb. 494, 497 (1877) (“By

an act of the legislature . . . it is made the duty of the board of county

commissioners of each organized county in the state, to erect a suitable

jail . . . .”).

8

See Cal. Penal Code § 4007 (“When there is no jail in the county . . .

the superior court may . . . designate the jail of a contiguous county for

the confinement of any prisoner . . . .”); 57 Okla. Stat. Ann. § 41 (“Every

county . . . shall have a jail or access to a jail in another county for the

safekeeping of prisoners . . . .” (emphasis added)); Commonwealth v.

Carroll County Fiscal Court, 633 S.W.2d 720, 721 (Ky. Ct. App. 1982)

(reading similar statutes to mean that a county may make arrangements

for prisoners instead of having a jail); 1991 Fla. Op. Att’y Gen. No.

91-25, 1991 WL 528160, at *2 (Apr. 18, 1991) (similar).

116 [110 Op. Att’y

County (which, as a code home rule county, may amend public

local laws enacted for it by the General Assembly in any event).

See Waterman Family Ltd. P’ship v. Boomer, 456 Md. 330, 345-46

(2017). In short, then, no State law explicitly requires every

county, or Kent County in particular, to have a jail.

However, for reasons that we will explain below, we conclude

that Maryland law does implicitly impose such a mandate on all

counties, including Kent County. That mandate arises, in our

opinion, from the sections of the Correctional Services Article that

govern the safekeeping of local detainees. See CS §§ 11-201,

11-203. A county may satisfy this mandate either by establishing

its own jail or by joining with other counties to establish a joint

facility. See CS § 11-103(b). Although the safekeeping statutes do

not impose this mandate expressly, we think that they must be

interpreted to do so when read in conjunction with the rest of the

statutory scheme, especially the sentencing statutes you reference

that allow a judge to sentence a person to a local facility only if it

belongs at least in part to the county where the case originated. See

CS §§ 9-104, 9-105, 9-302. In fact, the State’s sentencing and

corrections systems are built upon the existence of such a mandate,

and the requirement for a county to establish a jail facility is thus

implied in numerous provisions of the Maryland Code.

1. The Safekeeping Statutes

At common law, the local sheriff served as county jailer—that

is, as the official obligated to “keep safely the inmates entrusted to

the sheriff’s custody.” 93 Opinions of the Attorney General at 95;

see also 58 Opinions of the Attorney General 647, 647-48 (1973)

(similar). In this role, the sheriffs were required to hold anyone

whom the courts committed to their custody, including pretrial

detainees, Harford County v. UMMS, 318 Md. 525, 528 (1990),

and “felons and other criminals,” 58 Opinions of the Attorney

General at 647.

The General Assembly has largely codified the sheriffs’

common law duty to serve as jailer in the safekeeping statutes,

which appear at §§ 11-201 and 11-203 of the Correctional Services

Article. See, e.g., Harford County, 318 Md. at 528-29. These

statutes, which date to the nineteenth century, see State v. Wade, 40

A. 104, 105 (Md. 1898), provide that the Sheriff in a county must

“keep safely” those detainees committed to his custody, CS

§ 11-201(a), and supply them with “food and board” and, with

some limitations, medical care, CS § 11-203(a)(1). The county, in

turn, must “pay the costs associated” with the Sheriff’s

Gen. 110] 117

performance of these duties. CS § 11-203(a)(2). This specific

county obligation to fund the Sheriff’s operations as jailer tracks

the more general obligation of each county to pay the Sheriff’s

expenses. See Md. Code Ann., Courts & Jud. Proc. § 2-313(c);

Harford County, 318 Md. at 528.

The safekeeping statutes do not themselves identify which

categories of detainees may be committed to local custody. See CS

§ 11-201(a). But other aspects of State law authorize courts to

commit both pretrial detainees and convicted offenders sentenced

to 18 months or less to local custody. See Epps v. Levine, 457 F.

Supp. 561, 565 (D. Md. 1978) (reviewing laws, including what is

now CS § 9-611(a), authorizing the commitment of an accused to

local custody pending trial); CS § 9-105 (authorizing sentences of

up to 18 months to be served in local correctional facilities). Aside

from the county jailers, no other custodian has a general obligation

to take custody of pretrial detainees or offenders serving short

sentences. See Harford County, 318 Md. at 530 (discussing pretrial

detainees); CS §§ 9-104, 9-105 (generally authorizing commitment

only to local custody—and not to State custody—where the

sentence is 18 months or less). Under the resulting practice, then,

the Statewide corrections system relies on county jailers to hold

both populations. Department of Legis. Servs., Maryland’s

Criminal and Juvenile Justice Process 55, 153 (2022).

The safekeeping statutes modify the common law by allowing

most counties, including Kent County, to shift the role of jailer to

a different official other than the Sheriff. CS § 11-201(b)-(e). For

example, a county might establish a local department of

corrections, run by an appointed official rather than the Sheriff. See

79 Opinions of the Attorney General 83, 84-85 (1994). Or if two

or more counties join together to establish a shared local

correctional facility, the managing official of the shared facility

takes responsibility for the detainees confined there. CS

§§ 11-102(b)(1), 11-103.

A county that uses one of these mechanisms to displace the

Sheriff, however, still has financial responsibility for the food,

board, and care of its detainees. See CS § 11-203(a). In Kent

County, it is our understanding that the Sheriff currently bears the

safekeeping responsibilities of the jailer, although until recently the

County Commissioners had assigned these duties to County

correctional officers. County Commissioners of Kent County,

Resolution 2025-02 (Mar. 4, 2025).

118 [110 Op. Att’y

Although the safekeeping statutes do not expressly forbid a

county and its jailer from satisfying their obligations toward

detainees by arranging for them to be housed in a facility that the

county and its jailer do not operate, some elements of the text imply

that a county must establish a jail (either by itself or with other

counties) to satisfy these obligations. The statutes refer to the

county jailer—whether the Sheriff or another official—as “the

managing official of a local correctional facility.” CS

§ 11-203(a)(1) (emphasis added). This suggests that the official

must have a local correctional facility to manage and that the

official’s provision of “food and board” to detainees should occur

in that facility. See id.; see also CS § 11-201(b)(1) (authorizing

charter counties to appoint “a qualified individual as managing

official of the local correctional facility” (emphasis added)).

Similarly, the safekeeping statutes require the Sheriff or other jailer

to hold federal detainees—who may be committed to local custody

in exchange for payment—“in a local correctional facility” and “in

the same manner” as detainees committed under State law. CS

§ 11-201(a)(2). Again, the implication is that the jailer must have

a facility capable of housing people serving sentences.

To be clear, we do not think that these textual clues in the

safekeeping statutes establish by themselves that a county must

have a jail or a shared jail. That conclusion becomes evident only

when the statutes are read in conjunction with the rest of the

statutory scheme, especially the State sentencing laws discussed

below. See infra Part II.A.2. However, the Maryland courts have

attributed these aspects of the safekeeping statutes substantial

weight when discussing the place of a detainee’s confinement. In

an 1898 case, the Supreme Court of Maryland declared that the

statutory language about holding federal detainees in local facilities

“clearly indicated” that the Sheriff must keep all persons

committed to his custody “in jail.” Wade, 40 A. at 105.

Specifically, the Sheriff “must detain his prisoner in the common

jail, unless some necessity makes it proper to remove [the

prisoner].” Id. at 106 (emphasis added); see also Baumgarten v.

State, 21 Md. App. 251, 259-60 (1974) (relying on Wade to uphold

a jury instruction providing that “[i]t has long been established that

the place where persons shall be kept [by the Sheriff] is in jail”).

This obligation, the Court noted, aligned with a pre-revolutionary

English statute that was received into State law and that prohibited

a justice of the peace from holding a detainee anywhere “but in the

common gaol.” Id. at 260 (quoting 5 Hen. IV); see Kilty’s English

Statutes 225 (1811) (listing this English statute among those “found

Gen. 110] 119

applicable and proper to be incorporated” into State law);9 Beckwitt

v. State, 477 Md. 398, 425-26 (2022) (describing Kilty as the

“preeminent authority” on the incorporation of pre-revolutionary

English statutes into Maryland law).

It is true that, under Wade and later authorities, a county jailer

has authority to hold detainees elsewhere when exigent

circumstances require—such as when an emergency renders the

jail unsafe, 93 Opinions of the Attorney General at 92, or when a

detainee needs medical care, Harford County, 318 Md. at 530; see

also CS § 8-115(a), (c)(1) (authorizing State inspectors to close a

correctional facility and transfer detainees to another “suitable

place of detention” upon finding a “life threatening or health

endangering” condition in the facility). And the General Assembly

has more recently authorized counties to provide for detainees to

be held in jails shared by one or more counties. CS

§§ 11-102(b)(1), 11-103; see infra Part II.A.2 (discussing the

history of these statutes).

Generally, however, precedent suggests that the Sheriff or

other “designated custodian” must hold county detainees in the

county jail. Harford County, 318 Md. at 529-30; Wade, 40 A. at

106. This longstanding interpretation of the safekeeping statutes

necessarily implies that the Sheriff or other jailer must have a jail

facility and that the county must fund that facility.

This reading also comports with historical practice. Although

fires, disrepair, or other circumstances have sometimes left

counties without a jail, we have found no discussion in the legal

authorities of a scenario in which a Maryland county sought to

eliminate its only jail or otherwise sought to govern without a jail.

See supra Part I; 105 Opinions of the Attorney General 3, 17 (2020)

(relying on historical context as an indicator of legislative intent).

2. Sentencing Statutes

Perhaps more importantly, the General Assembly has long

woven this understanding of the safekeeping statutes into State

sentencing law.

Traditionally, Maryland criminal statutes often specified

whether a person convicted of a particular offense should serve

their sentence in State or local custody. See Bowers v. State, 227

9

Available at https://msa.maryland.gov/megafile/msa/speccol/sc290

0/sc2908/000001/000143/html/index.html.

120 [110 Op. Att’y

Md. App. 310, 326-27 (2016) (mentioning nineteenth century

statutes and a 2002 Revisor’s Note reflecting these traditional

“distinctions between imprisonment in a State or local correctional

facility”). When addressing local custody, the statutes sometimes

provided that the sentence should be served “in jail,” Md. Ann.

Code, Art. 27, § 306 (1951), and sometimes provided more

specifically that the sentence should be “to the Jail of the County”

where the crime occurred, id. § 407. Similar language appeared in

a more general statute governing removed cases, that is, cases

transferred to another county to ensure a fair and impartial trial.

This removal statute provided—as current Maryland law still

does—that if an offender was to be sentenced to local rather than

State custody, the sentence should be to “the jail of the county or

city from which such removal took place.” Md. Ann. Code, Art.

27, § 724 (1951) (emphasis added); see CS § 9-302(a) (current

statute providing that such offenders must be sentenced “to a local

correctional facility of the county from which the case was

removed” (emphasis added)).10 Together, these laws required a

sentence to local custody to be served in the jail of the county where

the crime was committed (or the jail of the county where the case

originated) and thus reflected the General Assembly’s expectation

that each county was to have a jail. See Smith v. State, 116 Md.

App. 43, 61 (1997) (“The common law venue for any crime is the

county where the crime is committed, the locus criminis. In

Maryland, the common law of venue controls unless modified by

statute.” (internal citations omitted)).

The General Assembly has since adapted this sentencing

framework to conform to two more recent corrections policies, but

these changes further reinforce our conclusion. First, in 1968, it

authorized counties to satisfy their safekeeping obligations by

establishing shared jails, which were then called “regional

detention facilities.” 1968 Md. Laws, ch. 481 (enacting Art. 27,

10

The reference to city jails in the old version of the statute evidently

referred to Baltimore City: The statute also referred to the “sheriff of the

county or city,” and, as the Revisor later noted, no other Maryland city

has a sheriff. 1999 Md. Laws, ch. 54 (Revisor’s Note to CS § 9-302).

Upon recodification in 1999, the Revisor defined “county” to include

Baltimore City and deleted the word “city” from the section “for

accuracy.” Id. Other cities in Maryland do not have any financial

obligation to provide for detainees. See CS § 11-203(a)(2) (imposing

this obligation on counties). The Correctional Services Article

contemplates in places that municipalities may run “local correctional

facilities,” see CS §§ 1-101(l)(2), 11-102.1, but this has apparently been

understood to allow their police departments to establish holding areas

as opposed to jails. See 93 Opinions of the Attorney General at 93 n.1.

Gen. 110] 121

§ 705). That legislation authorized a judge to sentence an offender

to a regional facility so long as the judge’s county was “a party to

the operation and maintenance” of the facility. Id. The

authorization contained a “notwithstanding clause” that overrode

the criminal statutes that sometimes required a sentence to be

served in the jail of the county where the crime was committed.

See id.; 68 Opinions of the Attorney General at 195, 202 (1983).

After the 1968 legislation, then, the sentencing laws allowed judges

to sentence offenders to a shared county facility as an exception to

the general rule of sentencing people to a jail in the county where

the crime occurred. Under this framework, a county had to have

either a shared jail or its own jail.

Second, in 1986, the General Assembly, at the Governor’s

urging, enacted an overarching rule to assign convicted offenders

to State or local custody based on sentence length. See 1986 Md.

Laws, ch. 128; see also 93 Opinions of the Attorney General at 94;

Summary of Senate Jud. Proc. Comm. Report on H.B. 474, 1986

Leg., Reg. Sess., at 1 (noting that the legislation was sponsored by

the House Speaker, on behalf of the Administration). Under this

rule, a commitment to State custody generally requires a sentence

longer than a year, whereas a commitment to local custody requires

a sentence of 18 months or less. CS §§ 9-104, 9-105. Before this

legislation, in contrast, the minimum sentence for confinement in

State custody was three months. See Summary of Senate Jud. Proc.

Comm. Report on H.B. 474, 1986 Leg., Reg. Sess., at 3. No

sentencing cap applied to standard county jails. Fiscal Note, H.B.

474, 1986 Leg., Reg. Sess. at 1. The only cap on sentences to local

custody was an 18-month limit that applied exclusively to regional

facilities, apparently as a benefit to induce counties to establish

them. See 68 Opinions of the Attorney General at 202.

The General Assembly enacted the new State-local

framework in 1986 because it decided that short- and long-term

detainees had different needs and required separate quarters. See

Hearing on H.B. 474 Before the House Judiciary Comm., 1986

Leg., Reg. Sess., at 1 (written testimony of Wayne McDaniel, of

the Governor’s Office, noting that the legislation would “better

segregate long-term and short-term offenders” and would be

“highly beneficial to both inmates and the correctional system”);

Summary of Senate Jud. Proc. Comm. Report on H.B. 474, 1986

Leg., Reg. Sess., at 3 (indicating that the purpose of the legislation

was “to provide better care for both short term and long term

prisoners”). The General Assembly opted to rely on county

facilities to hold the short-term population, although it also

provided for some financial assistance from the State to defray the

122 [110 Op. Att’y

counties’ costs. Hearing on H.B. 474 Before the House Judiciary

Comm., 1986 Leg., Reg. Sess., at 1 (written testimony of Wayne

McDaniel, of the Governor’s Office, that “[i]n recognition of this

increased burden, [the legislation] establishe[d] an operating

assistance program for the local governments”); Fiscal Note on

H.B. 474, 1986 Leg., Reg. Sess. at 1 (describing the reimbursement

structure); see also CS § 9-402(b) (providing for State

reimbursement of some local correctional facility costs for housing

people serving sentences between 12 and 18 months), CS

§§ 11-104, 11-105 (authorizing State financial assistance for the

construction, maintenance, or enlargement of local correctional

facilities).

To conform to the 1986 legislation’s overarching rule for

place of custody by sentence length, the code revision process has

mostly eliminated the distinctions in specific criminal laws

between State and local custody. 2002 Md. Laws, ch. 26 (Revisor’s

Note to Crim. Law § 2-207). As a result, the criminal laws no

longer state explicitly that a sentence to local custody must be

served in the jail of a particular county. See, e.g., id. (Revisor’s

Note to Crim. Law § 8-405 discussing the elimination of language

requiring imprisonment “in the jail of the county or city in which

[a] conviction is had”).11

But the sentencing framework in current law nonetheless

makes plain that, where an offender is to be sentenced to local

custody, the judge may only commit the offender to a jail of the

county where the crime took place or a shared jail that that county

has established with others. The statute for removed cases

continues to provide that a sentence to local custody “shall be to a

local correctional facility of the county from which the case was

removed.” CS § 9-302. Similarly, in a standard case that has not

been removed, the judge may impose a sentence of 18 months or

less to a local correctional facility only if the county where the

judge sits is “a party to the operation and maintenance” of the

facility. CS § 9-105(2).

The latter requirement for the county to be “a party to the

operation and maintenance” of the facility means, in our view, that

11

At least one criminal law does, however, continue to distinguish

between sentences to State or local custody. Md. Code Ann., Crim. Law

§ 2-207(a)(2) (“A person who commits manslaughter is guilty of a felony

and on conviction is subject to . . . imprisonment in a local correctional

facility not exceeding 2 years . . . .”); see Bowers, 227 Md. App. at 327

n.9 (noting a potential conflict between this statute and CS § 9-105,

which caps sentences to local facilities at 18 months).

Gen. 110] 123

a judge may sentence an offender to a jail that does not belong

exclusively to the judge’s county—or, in a removed case, to the

original county for the case—only if that jail is a shared facility that

the County has established under CS § 11-102(b). Admittedly, the

text of the statute no longer says this as clearly as it once did. When

the General Assembly decided in 1986 to extend the 18-month cap

on local sentences to apply to all jails (rather than to shared jails

only), it did so by replacing the term “regional detention center”

with “local detention center” everywhere it appeared in the Code,

including in what is now § 9-105. 1986 Md. Laws, ch. 128.12 As

a result, the text of the “party to the operation and maintenance”

requirement does not, in its current form, expressly address a

judge’s authority to impose a sentence to a shared jail within the

meaning of CS § 11-102(b). But we have no doubt that the

requirement continues to carry this meaning. The General

Assembly enacted it as part of its program for shared jails and

amended it only for unrelated reasons. See 1968 Md. Laws, ch.

481; 1986 Md. Laws, ch. 128. The language of the requirement

also continues to track the authorization of shared jails contained

in CS § 11-102(b) (allowing counties to allocate “responsibility,

construction, operation, maintenance, and appointment of

personnel” for such a facility). A county is thus a “party to the

operation and maintenance” of a jail that is not its own only if the

jail is a shared facility established by the county and others under

CS § 11-102(b).

In conclusion, we think that the State’s sentencing laws and

their history make apparent that a county’s obligation to provide

for detainees includes the obligation to have a jail of its own or a

jail that it shares with one or more other counties. If a county did

not have a jail meeting these requirements, then the sentencing

statutes would leave judges in that county, or judges imposing

sentences in cases removed from that county, with no facility to

which to sentence an offender to a short term of confinement. We

do not think that the General Assembly intended to put sentencing

judges in such a bind. See Wallace, 492 Md. at 368 (“Our task is

to interpret statutes, whenever possible, to avoid absurd results

. . . . ”).13

12

Code revision subsequently changed the latter term to “local

correctional facility.” See CS § 1-101 (Rev. Note, 1999 Md. Laws, ch.

54).

13

With regard to pretrial confinement, the State Code does not contain

equivalent statutes that explicitly provide that a detainee must be held in

a jail of the county where the charges arise. See Epps, 457 F. Supp. at

124 [110 Op. Att’y

3. Other Statutes

Beyond the sentencing statutes, other statutes similarly

indicate that the General Assembly expects all counties to have

jails. For each individual county, the General Assembly has

enacted laws creating work-release programs and other corrections

programs for that county. CS tit. 11, subtit. 7 (containing a section

for every county but Somerset); Somerset County Code of Public

Local Laws, tit. 6 (2003) (governing “prison work” in Somerset

County). Invariably, these county-specific measures refer to the

confinement of detainees in the local jail facilities. E.g., CS

§ 11-702(c)(4) (providing generally that, in Allegany County, “an

incarcerated individual shall be confined in the detention center

when not participating in the work release program”). Many of the

provisions, including the one for Kent County, refer to the county

jail by name. E.g., CS § 11-716(c) (“Kent County Detention

Center”); CS § 11-715(d)(2) (“Howard County Detention Center”);

CS § 11-719(b) (“Queen Anne’s County Jail”); CS § 11-722(b)

(“Talbot County Jail”). The underlying premise is that each county

has a jail.

Statutes governing funding for the expansion of county jails

and the duties of county grand juries operate on the same premise—

that each county has or is party to a local correctional facility. See

CS § 11-105(a) (authorizing State funding for the expansion of a

county jail if “the anticipated confinement of incarcerated

individuals” serving sentences between 6 and 12 months “in a

county’s local correctional facility would exceed the capacity of

the local correctional facility”); CS § 9-608 (“At least once each

year, the grand jury in each county shall . . . visit each local

correctional facility in the county . . . .”).

We acknowledge that other statutes, mentioned earlier,

merely authorize the counties to establish jails without imposing

565-66. It is at least possible that the common law imposes this

requirement, although we find it unnecessary to resolve this issue given

the clarity with which the sentencing statutes imply that each county

must have at least a shared jail. Compare Harford County, 318 Md. at

528 (“[T]he sheriff was the custodian of all persons arrested and charged

with a criminal offense pending their trial . . . . This common law duty

is retained by the sheriff unless expressly removed or modified by the

Legislature.”), with Epps, 457 F. Supp. at 565-66 & n.2 (acknowledging

that under “Maryland common law, traditionally custody of an accused

was given to the county sheriff” but holding nonetheless that State law

does “not mandate that a pretrial detainee necessarily be in custody of

the local sheriff or jail warden”).

Gen. 110] 125

any mandate in this regard. See CS § 11-102(a); Local Gov’t

§ 10-304(c); supra Part II.A. One might argue that interpreting the

safekeeping statutes to require each county to have a jail, as we do,

renders these authorization statutes superfluous and conflicts with

the Legislature’s decision not to include a mandate in them. See,

e.g., Stanley v. State, 390 Md. 175, 183-84 (2005) (“It is a well

settled canon of statutory construction that we should . . . give

effect to all of the language and avoid a construction that renders

any portion superfluous.”).

But we are not persuaded by this line of reasoning. Like all

statutes, permissive authorization statutes exist in broader

context. See, e.g., Bethesda African Cemetery Coal., 489 Md. at

61-62 (“We discern legislative intent not by considering text in

isolation, but instead by viewing it within the context of the

statutory scheme to which it belongs.” (internal quotation marks

omitted)). Even where such a statute does not impose a mandate,

other sources of law may do so separately. See id. at 15-16

(reasoning that even where a permissive statute did not impose

restrictions on the owners of burial grounds, the common law

nonetheless did so); id. at 78 (“The statute says nothing about the

various possible rights and protections that can be enforced through

the common law.”).

Under our interpretation of the safekeeping statutes, the

authorization statutes still serve an important purpose: They grant

the counties control over how the jail requirement—which entails

significant expense for them—is satisfied. See 85 Opinions of the

Attorney General at 344 (citing CS §§ 11-102(a) and the

predecessor to Local Gov’t § 10-304(c) for the proposition that “a

county detention center is a county facility, regardless of whether

the local sheriff is responsible for its operation”). As a result, in

counties where the Sheriff (who is a State official) remains the

jailer, the counties may nonetheless drive the process of

establishing a jail. Id. at 344-45. We have explained how this

dynamic works before: It is “prudent” for the county to consult the

Sheriff when making decisions about a jail facility, but the

authorization statutes establish “beyond dispute” that the county

has ultimate authority over the development of the facility. Id.

Finally, we acknowledge again that no statute explicitly

requires a county or its jailer to have a jail or a shared jail. This

lack of an explicit requirement, however, does not resolve the

matter under Maryland principles of statutory interpretation. See

supra Part II (explaining that other indicators of legislative intent,

including context and the need to avoid absurd results, may require

126 [110 Op. Att’y

recognition of an implicit mandate). In this case, as we have

explained, the only reasonable interpretation of the relevant

corrections and sentencing statutes is that a county must have a jail

or a shared jail, notwithstanding the absence of any explicit

statutory language to that effect.

All of these considerations lead us to conclude that State law

imposes a duty on each county to provide a jail capable of confining

pretrial detainees and sentenced offenders or, at least, to be a party

to a shared jail as authorized by CS § 11-102. A county may not

provide for its detainees by relying exclusively on other

arrangements for their confinement. That course of action would

violate the safekeeping statutes and leave State judges with no

place to commit many offenders to short sentences.

B. Per Diem Contracts

The second question that we must address is whether Kent

County may satisfy its obligation to establish at least a shared jail

by purchasing bedspace at a per diem rate in the jail of another

county. Put differently, the question is whether the proposed per

diem arrangements would fit within the authorization for shared

jails contained in CS § 11-102 and would render the County a

“party to the operation and maintenance” of another county’s jail,

thereby allowing Kent County judges to sentence people to terms

of confinement there under CS § 9-105(2). We do not think so.

The statutes on shared jails do not set out the “precise form of

the cooperative endeavor” that they envision. 68 Opinions of the

Attorney General at 202. Nor, so far as we are aware, have any

shared jails actually been established under the statutes. Cf. 61

Opinions of the Attorney General 24, 27 (1976) (concluding that a

proposal for a bi-county jail to be established under the statutes did

not align with the language of an appropriation enacted to support

the facility). Nonetheless, we think the statutory language at least

makes clear that, to establish a shared jail, the counties involved

must share responsibility for the facility itself. All of the relevant

provisions refer to collaboration with respect to a facility, not with

respect to detainees alone. See CS § 11-102(b)(1) (referring to the

“allocation of responsibility, construction, operation, maintenance,

and appointment of personnel in connection with a local

correctional facility”); CS § 11-103(b) (referring to “a local

correctional facility operated by more than one county”); CS

§ 11-104(e)(1) (authorizing State financial assistance “if a county

that maintains, operates, or participates in a local correctional

facility provides for improvements to the local correctional

Gen. 110] 127

facility”); CS § 9-105(2) (requiring the county to be “a party to the

operation and maintenance of the local correctional facility”

(emphasis added)).

A per diem contract does not satisfy this requirement. Such a

contract makes the sending county responsible for its detainees and

their expenses, not for the host county’s facility. Two examples

illustrate that point.

First, the federal government often enters into such contracts

with local facilities, see 18 U.S.C. § 4002, and we doubt anyone

would maintain that it becomes “a party to the operation and

maintenance” of those facilities as a result. The federal

government simply pays to put up its detainees there. See Logue v.

United States, 412 U.S. 521, 528-30 (1973) (explaining that under

a contract of this nature, the federal government’s role is “limited

to the payment of sufficiently high rates to induce” the local jail “to

do a good job” and does not involve control by the federal

government over “day-to-day operations”). This point holds true

even where the per diem contract sets out—as such contracts

sometimes do—certain standards of treatment that the facility must

meet. See id. at 529-30. Such contractual standards still do not

give the purchasing government any role in running the facility

itself; they simply serve to safeguard the detainees for which the

purchasing government bears responsibility. See id. at 530.

Second, under Maryland law, even a person incarcerated in a

county jail must sometimes pay their own expenses if they are

employed while incarcerated. E.g., CS § 11-718(e); see generally

Littman, supra note 4, at 888-89 (noting that “detainees are

regularly charged for the daily cost of their room and board” in

county jails). But no one would suggest that the incarcerated

individual is a “party” to the operation and maintenance of the jail.

To become “a party to the operation and maintenance” of a jail,

then, we think a county must do something more than enter into an

agreement to pay its detainees’ way. Again, the statutory language

suggests that the parties to a shared jail agreement must share

responsibility for the facility, not just the detainees. See, e.g., CS

§ 11-103(b).

Further, if the General Assembly had intended to authorize a

county to overcome the need for a county jail by purchasing jail

services elsewhere, we think it would have said so expressly and

not buried the authorization in legislation allowing counties to

establish shared jails. These two types of authorizations—shared

jails versus the purchase of jail services—are often treated

128 [110 Op. Att’y

separately in other states’ statutory schemes.14 And where other

states authorize counties to rely on the purchase of jail services, the

statutes tend to establish guardrails, such as minimum notice of

cancellation, to protect the county from being left without adequate

bedspace. See Wash. Rev. Code Ann. § 70.48.090(1); cf. 71

Opinions of the Attorney General 197, 204 (1986) (reasoning that

a county’s reliance on a privately owned jail “would have serious

implications, in that the county would have great difficulty, on

short notice, providing for custody of its inmates elsewhere”).

In a similar vein, our Legislature has expressly authorized the

State to purchase jail services from the counties, CS §§ 11-106(b),

9-304, 9-402(c), and has expressly authorized the counties to sell

jail services to the federal government, id. § 11-201(a)(2). But, by

contrast, the statutes on shared jails do not contain any express

language about counties purchasing jail services from each other.

This lack of explicit authorization, set against the explicit statutory

authorization of other types of transactions for jail services,

suggests that the shared-jail statutes do not empower a county to

rely on the purchase of jail services for its correctional needs. We

reached a similar conclusion in an opinion that determined that

local governments lacked authority to transfer custody of detainees

to out-of-state jurisdictions. See 93 Opinions of the Attorney

General at 99-100. There, we reasoned that the General Assembly

had explicitly authorized other forms of local government

cooperation with out-of-state governments and that its failure to

explicitly authorize the custody transfers therefore suggested that

local governments could not conduct them. Id. The point is that in

the local corrections context, the General Assembly tends to

authorize joint arrangements explicitly, and it has not done so here.

We also think it important that a shared jails program has

different policy ramifications than a system that allows counties to

rely exclusively on the purchase of jail services. A county that

participates in running a shared jail remains substantially

accountable to the public for the quality of the facility and the

treatment of its detainees. See CS § 9-105(2) (referring to the

14

Compare Texas Code Ann., Local Gov’t § 351.003 (authorizing

“contracts with another county to incarcerate [a county’s] prisoners” at a

“daily per capita rate”) and Wash. Rev. Code Ann.§ 70.48.090

(authorizing “[c]ontracts for jail services” between local governments

that “give one governing unit the responsibility for the operation of the

jails”), with Tex. Code Ann., Local Gov’t 351.031 (authorizing contracts

between two or more counties “for the joint operation of a jail”), and

Wash. Rev. Code Ann. § 70.48.095 (authorizing “regional jails” that are

“created and operated between two or more local governments”).

Gen. 110] 129

county as a “party” to the jail). In contrast, a county that merely

pays another jurisdiction to house its detainees does not retain the

same level of accountability for the workings of the facility in

question. See Littman, supra note 4, at 894 (“[B]ecause per diem

checks and detainee transport vans are crossing jurisdictional lines,

contracting delocalizes and therefore undermines accountability.”).

Even if a per diem contract requires the other jurisdiction’s facility

to meet certain standards, it is ultimately the other jurisdiction that

controls how the facility operates. See Logue, 412 U.S. at 529-30.

We discussed similar principles in a 1986 opinion that recognized

a limitation on a county’s authority to buy jail services from private

companies. 71 Opinions of the Attorney General at 203. We

concluded that, while a charter county may contract out the

operation of the county jail to a private entity, the county “cannot

wholly abdicate its responsibility” for the jail. Id. The county must

retain some control over the facility. Id.

This is not to say that the General Assembly could not, if it

wished, explicitly authorize Kent County to pursue the proposal in

question here. As mentioned, the General Assembly has authorized

some other types of transactions for jail services, and it could

reasonably authorize the County to close its jail in reliance on such

transactions (as other state legislatures have done). See infra Part

II.C (noting policy options). But the relevant policy considerations

reinforce our view that, if the General Assembly had intended to

authorize counties to rely exclusively on the bedspace market for

detainee housing, it would not have done so through a statute that

only authorizes shared jails.

For all these reasons, we do not think that per diem

arrangements make a purchasing county a “party” to the “operation

and maintenance” of another county’s jail. We recognize,

however, that this conclusion still leaves a substantial amount of

uncertainty about the level of responsibility that Kent County must

accept to satisfy this requirement.

Although we decline to explore hypotheticals about the

minimum level of participation needed to satisfy the “party”

requirement, we offer two observations to clarify our interpretation

of the statute. First, arrangements primarily based on a per diem

fee structure are unlikely to suffice, regardless of whether the

purchasing county also accepts other minor obligations on top of

these fees. The driving principle, again, is accountability for the

government function of running a jail. See 71 Opinions of the

Attorney General at 203. If a county’s primary connection to a

facility is the purchase of bedspace there, that county is essentially

130 [110 Op. Att’y

in the bedspace market and is less likely to assume direct

responsibility for conditions of confinement than a county that

invests substantial time and resources into the operation of the

facility itself. Second, the smaller the county’s stake in a

purportedly shared facility, the greater the risk that a sentencing

court in that county would determine that it lacks authority to

commit offenders there under CS § 9-105. Counties can avoid this

risk by dividing financial and operational responsibilities equally

or according to some objective metric, such as the respective size

of each county’s population or the historical size of its jail

population. In our view, a county that seeks to rely solely on

bedspace in another jurisdiction’s facility without assuming a

serious share of responsibility for operations there should, given

the obvious need to comply with CS § 9-105, seek legislative

approval of its endeavor before shuttering its only jail. See 66

Opinions of the Attorney General 118, 119 (1981) (counseling

resort to the Legislature where a proposal would “suddenly alter

th[e] status quo” and does not appear to “comport[] with the true

intent of the General Assembly”).

In sum, we do not think that the statutes authorizing counties

to set up joint jail facilities can reasonably be interpreted to

authorize a county to rely exclusively on the purchase of jail

services from other counties to meet detainee needs.

C. Other Considerations

Because you asked about the proposal to close the County’s

only jail, we do not offer any opinion about the legality of the

detainee transfers that have already occurred under the County’s

existing per diem contract with Queen Anne’s County. Depending

on the circumstances, those transfers may fall within your authority

as Sheriff to hold detainees outside of the county jail under exigent

circumstances, see 93 Opinions of the Attorney General at 92, or

within the scope of statutes that authorize detainee transfers, e.g.,

CS § 9-301 (governing the transfer of a defendant in a case

removed to another county); CS § 9-303(2) (authorizing transfers

from local to State custody if “the local correctional facility is not

equipped to properly provide the necessary treatment or

detention”); CS § 11-206 (governing transfers of pregnant

detainees); cf. 93 Opinions of the Attorney General at 92

(emphasizing that transfers of custody require statutory authority).15

15

To be clear, although the County may name a different official to

serve as jailer, if it leaves you (as Sheriff) in this role, it may not require

you to transfer detainees to another county. See 33 Opinions of the

Attorney General 219, 220-21 (1948).

Gen. 110] 131

Here, we conclude only that the County may not do away with its

own jail entirely by relying on such per diem contracts.

We also emphasize that we make no statement here about the

policy merits of the County Commissioner’s proposal. As

mentioned, other states explicitly authorize counties to take the

approach the proposal outlines. The General Assembly might

decide to confer the same authority on Maryland counties. Cf.

Littman, supra note 4, at 893-94 (discussing policy issues related

to “interjurisdictional bedspace sharing” in county jails). We think,

however, that existing law does not give the County this authority.

III

Conclusion

In our opinion, Kent County may not opt to close its only jail

and provide for detainees exclusively by purchasing jail services

from other counties. The County must maintain a jail of its own or

join with one or more other counties to operate a truly shared jail.

Anthony G. Brown

Attorney General of Maryland

Ben Harrington

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions and Advice