Court limits house arrest

Those on probation can't be confined, says state's highest court

Ruling may affect hundreds

Senators begin plans for legislation to allow confined probation

August 05, 1999|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

In a ruling that might affect hundreds of criminals, Maryland's highest court said yesterday that judges cannot limit the freedom of probation by placing probationers under house arrest.

"Confinement is confinement," said Julia Doyle Bernhardt, assistant public defender who won the case for an Anne Arundel County defendant protesting the terms of his probation.

A divided Court of Appeals said that while judges can set rules for probation, they cannot make house arrest a condition, because "the terms of house arrest may be so restrictive that the terms approximate incarceration, albeit outside the prison walls."

The ruling, approved by a 4-3 vote, reverses a lower court ruling. It ordered Anne Arundel County Circuit Judge Robert H. Heller Jr. to take off two years of house arrest from the five-year probation that followed 18 months in jail for Frederick Andrew Bailey, 23, of Odenton. He was convicted of theft, battery and two related charges.

How many people will be affected by the high court's decision, and how many affected criminals might ask local courts to free them from house arrest, was not immediately known.

But in their dissent, three of the state's top judges speculated that the ruling would touch hundreds.

Of the 90 people in the Anne Arundel County Detention Center's house arrest program, 38 are on probation, said James O'Neill, facilities administrator who oversees the program.

The ruling also applies to defendants whose house arrest is monitored by private companies, said Bernhardt.

Annapolis attorney Daryl Jones said he has seen Eastern Shore judges make home detention a condition of probation.

Edward A. DeWaters Jr., chief judge for the judicial region that includes Baltimore County Circuit Court, said he was certain that Baltimore County had a small number of criminals in that situation. "If we can't do it, then we will stop," he said.

Only five counties -- Calvert, Cecil, Charles, Harford and St. Mary's -- have authority from the General Assembly that allows them to make house arrest a term of probation.

They won this authority in 1989, as judges sought to place people on probation but wanted to give them a taste of weekend confinement, Bernhardt said. Those counties will not be affected by yesterday's decision.

In the ruling, the top court's majority said that it would not go case by case to decide if terms of individual house arrest as part of probation are so burdensome that they are jail-like. Instead, it said the legislature, just as it created probation, can craft a law that would allow house arrest to be part of probation statewide and set the conditions.

"The legislature, once they get hold of it, they can set the parameters," said Clayton Greene Jr., administrative judge of the region that includes Anne Arundel County Circuit Court.

"I was not aware that you needed enabling legislation," said Sen. Philip C. Jimeno, a Brooklyn Park Democrat and member of the Judicial Proceedings Committee. He said he wants to examine the possibility of changing the law.

Cecil County Democrat Sen. Walter M. Baker, chairman of the committee, said he would immediately ask his staff to look into legislation for the next session.

Three of the seven Court of Appeals judges dissented, saying enabling legislation was unnecessary.

Some defense attorneys said they feared harsher sentences might result from the ruling.

"It was like a Hobson's choice if you are a lawyer," said criminal defense attorney Carroll L. McCabe, who has offices in Towson and Annapolis. "If you say to the judge, `Your honor, I don't think you can do this, he can say, `Fine, let me add three years to this prison sentence.' And your client is looking at you, ready to stab you because you've just gotten him three more years."

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