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
Office of the Attorney General of Maryland
December 23, 2025
110 Op. Att‘y Gen. 110
CORRECTIONS
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,
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,
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,
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
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
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
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
Although two Maryland statutes authorize counties to establish “local correctional facilities,” the statutory term that encompasses jails, that also does not resolve the question.
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
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
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,
The safekeeping statutes do not themselves identify which categories of detainees may be committed to local custody. See
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.
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
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
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
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 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,”
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,
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.
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
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
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.”
The latter requirement for the county to be “a party to the operation and maintenance” of the facility means, in our view, that
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
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.,
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
We acknowledge that other statutes, mentioned earlier, merely authorize the counties to establish jails without imposing
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
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
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
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
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
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
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.,
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
In a similar vein, our Legislature has expressly authorized the State to purchase jail services from the counties,
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
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
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.,
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 & Advice