dissenting:
The majority holds that “in the absence of statutory authority, a trial judge lacks power to order home detention as a condition of probation.” I respectfully dissent. The general statutory authority given to judges to impose conditions of probation is broad enough to permit probation with intensive supervision including a reasonable period of home detention monitoring, and no court in any jurisdiction has ever held to the contrary. The issue is one of legislative intent, and our legislature has made quite clear its intent that the authority to impose home detention is included in the authority to impose other conditions of probation.
There are two separate and distinct conditions of probation that the majority seems to confuse. First, probation may be conditioned on a period of confinement in a penal institution. Cases in some states, including Maryland, have held that there must be express legislative approval in order to make incarceration in a penal institution a condition of probation. In Maryland, as will be discussed, this penal incarceration as a condition of probation is only permissible in five designated counties. Second, probation may be conditioned on a reasonable period of home detention monitoring. This is a form of intensive, electronically supervised probation. The majority cites no case from any jurisdiction that requires legislative approval, other than the authorization to impose probation, in order for a court to impose a reasonable period of home detention monitoring as a condition of probation.
BACKGROUND
In Anne Arundel County there is a program of home detention supervision that is utilized for three types of individuals: (1) as a form of pretrial release for defendants awaiting trial; (2) by the county detention center for committed in*303mates serving their sentences; and (3) for probationers as a condition of probation. There are differences between inmates committed to the detention center who are placed on home detention and inmates on probation who are on home detention as a condition of probation. Among the distinctions are that, if a committed inmate departs from home detention without authorization, the inmate can be guilty of escape. If there are other violations of the rules of home detention by an inmate, then the inmate can be remanded to the detention center without the need for any action by the court. See Dedo v. State, 343 Md. 2, 13-14, 680 A.2d 464, 470 (1996). On the other hand, if a probationer on home detention departs without authorization, this would not be an escape under the escape statutes applicable at the time Bailey was sentenced.1 If a person on probation violates any of the rules of home detention, the remedy is to charge a violation of probation, and a court hearing is necessary to revoke probation.
The sentence meted out to the defendant in the instant case was carefully crafted to punish and rehabilitate. It included a period of incarceration followed by a period of probation. Home detention was expressly made a condition of probation, not part of the period of incarceration. At sentencing the trial judge stated:
“You will serve home detention for a period of twenty-four months when you are released from the Anne Arundel County Detention Center commencing upon release from the Detention Center, and you will be subject to all rules and restrictions of the House Arrest Program. You’ll be permitted to work. You’ll be permitted to do any counseling. You’ll be permitted to do any public work that I might order. There is to be no use of any alcoholic beverages or any kinds of drugs. There are certain requirements and rules that you’ll be required to follow in order to be on the House Arrest Program. This is a condition of probation. If you violate the House Arrest Program, they will then tell *304me and you will be back for a violation of probation hearing.”
CONFINEMENT IN A PENAL INSTITUTION AS A CONDITION OF PROBATION VS. HOME DETENTION AS A CONDITION OF PROBATION
Unquestionably a judge may impose a split sentence of a period of confinement followed by a period of probation, but the states are divided on whether a judge, without imposing a sentence of incarceration, may make a period of incarceration in a penal institution a condition of probation. An article that contains a good survey of the case law in this area is Donald M. Zupanec, Annotation, Propriety of Conditioning Probation on Defendant’s Serving Part of Probationary Period in Jail or Prison, 6 A.L.R.4th 446, § 2[a], at 450-51 (1981). The author summarizes the annotation as follows:
“When a person who has been convicted of a criminal offense is placed on probation, the courts commonly impose conditions with which the probationer must comply during the period of probation or face the prospect of probation revocation. In recent years, an increasing number of courts, in placing persons on probation, have ordered that they serve a period of incarceration in jail or prison as a condition of probation.
Since the power to grant probation depends on statutory authority, it is clear at least as a general rule that some period of incarceration can validly be made a condition of probation when the statute authorizing probation expressly authorizes conditional incarceration. However, where the statute contains only general authority to impose probationary conditions, such as by authorizing probation on such ‘terms and conditions as are deemed proper,’ the courts have reached different conclusions concerning the validity of incarceration as a condition of probation. On the one hand, a number of courts have taken the position that such a condition is valid, particularly when the period of incarceration is short. However, other courts, generally reasoning that incarceration is contradictory to the basic concept of *305probation, have taken the position that, in the absence of express statutory authority, it is not proper to order a probationer to serve a conditional period of incarceration.” (Footnotes omitted).
The Court of Special Appeals considered the issue in Stone v. State, 43 Md.App. 329, 405 A.2d 345 (1979) stating:
“[W]e conclude that in the absence of express statutory authority, confinement in a jail-type institution, such as the Anne Arundel County Detention Center, is not an authorized condition of probation. Probation by its very nature implies the absence of incarceration. In fact, Article 41, section 107(f) of the Code defines probation as ‘the conditional exemption from imprisonment allowed any prisoner by suspension of sentence in the circuit court for any county of this State or in the Criminal Court of Baltimore.’ ”
43 Md.App. at 335-36, 405 A.2d at 348.
The Court of Special Appeals has recognized that there is a significant difference between incarceration as a condition of probation, which it held was not permissible without further legislative approval, and home detention, which it held was permissible under the general authority to impose conditions of probation. Three years ago, in Schlossman v. State, 105 Md.App. 277, 659 A.2d 371 (1995), cert. dismissed as improvidently granted, 342 Md. 403, 676 A.2d 513 (1996), a sentence almost identical to the sentence in the instant case was expressly approved by the Court of Special Appeals. That court was careful to point out the distinction between incarceration as a condition of probation and home detention as a condition of probation, stating:
“We do not dispute the well settled rule in Maryland that, absent statutory authority, ‘a court cannot impose imprisonment as a condition of probation.’ Maus v. State, 311 Md. 85, 104, 532 A.2d 1066 (1987)(citing Stone, 43 Md.App. at 336, 405 A.2d 345). Unlike the appellant in Stone, however, appellant in the case sub judice is not subject to ‘confinement in a jail-type institution.’ Stone, 43 Md.App. at 335, 405 A.2d 345. Instead, he is confined to his own residence *306whenever he is not working or attending school.” (Footnote omitted).
Schlossman, 105 Md.App. at 299, 659 A.2d at 382. Prior to Schlossman, in Balderston v. State, 93 Md.App. 364, 612 A.2d 335 (1992), the Court of Special Appeals held that home detention as a condition of probation was not the same as custody and the defendant is not entitled to credit on his prison sentence for time spent on probation even though on home detention.
HOME DETENTION AS A CONDITION OF PROBATION
Although the authority to impose conditions of probation is not unlimited, it is quite broad. Maryland Code (1957, 1996 RephVol.), Article 27, § 641A states, “the court having jurisdiction may suspend the imposition or execution of sentence and place the defendant on probation upon such terms and conditions as the court deems proper.” As previously noted, the Court of Special Appeals has held this grant of authority is broad enough to permit intensive supervision including home detention as a condition of probation, albeit not incarceration as a condition of probation. Neither the majority nor any party has cited a single case holding that a reasonable period of intensive supervision, including home detention, requires special legislative authority in addition to the general authority to grant probation. It is also clear that courts throughout the country have been imposing home detention as a condition of probation before there was express legislative approval, and this practice has not been condemned by a single case prior to this Court’s decision in the instant case. One law review article written several years ago noted that:
“The first structured implementation of home detention occurred in Albuquerque, New Mexico in 1983. Arizona, California, Illinois, Kentucky, Michigan, Oklahoma, Oregon, and Utah have also experimented with the sanction, although not nearly to the extent of the Florida courts. * * * Utah is the only state that has authorized home *307detention by statute. See Utah Code Ann. § 77-18-l(6)(f)(Supp,1986).”
Fred L. Rush, Jr., Deinstitutional Incapacitation: Home Detention in Pre-Trial and Post-Conviction Contexts, 13 N. Ky. L.Rev. 375, 376 n. 4 (1987). Another article, although recommending legislative implementation, points out that generally home detention is initiated by the courts. “It is important to note that while home confinement has been adopted through the legislative process in certain instances, it has been more common to implement it through administrative or judicial fiat.” J. Robert Lilly & Richard A. Ball, A Brief History of House Arrest and Electronic Monitoring, 13 N. Ky. L.Rev. 343, 372 (1987). Thus, courts throughout the country have been imposing home detention without express statutory authority, yet the majority can find no case disapproving a reasonable period of home detention as a condition of probation.
There is good reason why courts, in their efforts to fight crime, should be able to experiment with novel conditions of probation without the need for explicit statutory authority.
“Indeed, it may be appropriate for trial courts to get out ahead of the legislative discussion. Trial courts, not legislatures, preside over trials of individual defendants and administer justice on a case-by-case basis; legislatures can only prescribe general laws and respond to general concerns. The sentencing expertise of trial courts makes them better suited to lead the debate and to oversee the implementation of alternatives.”
Developments in the Law—Alternatives to Incarceration, 111 Harvard L.Rev. 1863, 1980 (1998). There is no doubt that home detention can be an effective and desirable condition of probation in some cases. If all courts believed, as the majority believes, that home detention as a condition of probation is improper without express legislative approval, I suspect the use of home detention would have been delayed considerably.
*308LEGISLATIVE INTENT
It is obvious from the previously cited decisions of the Court of Special Appeals that for many years trial judges and the intermediate appellate court believed that the broad grant of authority to impose conditions of probation that the judge deems proper included the right to impose home detention. The legislature certainly acquiesced in this interpretation.
The majority discusses Md.Code (1957,1996 Repl.Vol.), Art. 27, § 639(a)(2), § 641(a)(l)(i)(2), and § 641A (a)(2), see, e.g., § 641(a)(l)(i)(2), which provides in pertinent part: “In Allegany County, Calvert County, Charles County, Garrett County, and St. Mary’s County, the court may impose a sentence of confinement as a condition of probation.” The majority somehow concludes that these statutes were a grant of authority to impose home detention as a condition of probation in some but not all counties. The majority states: “As is evident from the enactment of Article 27, § 641A(a)(2), when the General Assembly chooses to permit home detention as a condition of probation, it knows how to do so.” 355 Md. 299, 300, 734 A.2d 690, 691 (1999). This is a complete misconstruction of the statutes as evidenced by their language and explicit legislative history. Article 27, § 641A(a) was not meant to, and did not in any way, deal with home detention; its purpose was to overrule Stone, supra, and permit incarceration in a penal institution as a condition of probation in five counties. The Bill Analysis for Senate Bill 361 clearly and succinctly sets out its purpose and states:
“Under § 641A(a) of Article 27, a court, upon conviction, may suspend the imposition or execution of a sentence and place a defendant on probation upon such terms and conditions as the court deems proper.
In Stone v. State, 43 Md.App. 329, 405 A.2d 345 (1979), the Court of Special Appeals held that although § 641A(a) conveys broad discretion on a court to put a defendant on probation on such terms and conditions as the court deems proper, the court’s discretion is not unlimited. The court then held that ‘in the absence of express statutory authority1 confinement in a jail-type institution is not an ‘authorized *309condition of probation.’ This bill is intended to overrule Stone and to permit a court to impose a term of imprisonment as a condition of probation.”
Long before Stone, and long before this legislation was enacted in 1989, the same appellate court that decided Stone had approved home detention-type restrictions as conditions of probation. See Phelps v. State, 17 Md.App. 341, 303 A.2d 430 (1973)(noting that the court, but not probation agent, may impose the condition of custodial care or treatment); Sweeney v. State, 1 Md.App. 233, 229 A.2d 141 (1967)(noting that as a condition of probation, defendant was to spend six months in the Spring Grove State Hospital for treatment of alcoholism). The legislature chose to overrule Stone and permit incarceration as a condition of probation in five counties, but certainly did not intend to overrule decisions that permitted home detention-like conditions of probation. This new statute only dealt with confinement in a penal institution, not home detention, and certainly was not intended to reject home detention in all but five counties.
There is no question that the legislature has indicated its agreement with the lower courts that have determined that home confinement was included in the broad grant of authority to impose any conditions the judge deems proper. There should be no need for a statute to reaffirm what the Court of Special Appeals has already held. Further support is found in a statute enacted in 1998. In that year, Senate Bill 633 dealt with private home detention monitoring companies. Home detention was being widely used as a condition of probation, as well as a way of monitoring defendants on pre-trial release pending trial. Its use was so widespread that private companies had begun to do home detention monitoring throughout the state. There was concern that these private companies should be licensed and regulated. Senate Bill 633 was enacted as Md.Code (1989,1995 RepLVol., 1998 Supp.), Business Occupations and Professions Art., § 20-101 et seq. Its purpose was to license and regulate prívate home detention companies. The legislation also spells out some of the duties of these private home detention companies. The portion of this legisla*310tion that is relevant to the instant discussion was enacted as Md.Code (1989, 1995 RepLVol., 1998 Supp.), Business Occupations and Professions Art., § 20-401, General responsibilities. That section provides, in relevant part:
“(c) Notice to Division of Parole and Probation of missing defendant.—Upon determining that an individual who is subject to private home detention monitoring as a condition of probation has been missing for 24 hours, the private home detention monitoring agency responsible for monitoring the individual shall, on the next business day, notify the Division of Parole and Probation.” (Emphasis added).
That section sets forth one of the duties of a private home detention company that is monitoring someone placed on probation as a condition of probation, but it also shows the legislature’s recognition of a judge’s authority to impose probation includes the authority to order home detention as a condition of probation. The provision is obviously not intended as a grant of authority to judges. The legislature did not intend that judges could have probationers supervised by private home detention monitoring companies, but not governmental home detention agencies as in the instant case.2
The majority recognizes that the issue before the court is one of legislative intent. Did the legislature intend that the broad grant of authority it gave to judges to impose any *311condition of probation the judge deems proper include the right to impose home detention as a condition of probation? The wording of the statute would seem to say yes, and every indication we can draw from other relevant legislation would support that interpretation.
It is obvious from the Court of Special Appeals’ decisions involving home detention and the legislative history of Md. Code (1989, 1995 Repl.Vol., 1998 Supp.), Business Occupations and Professions Art., § 20-401 that judges have been placing offenders on home detention as a condition of probation for many years, and I am sure literally hundreds of offenders have been so sentenced. I do not believe all of these people have been illegally sentenced or illegally confined to their homes. I respectfully dissent.3
Judge RQDOWSKY and Judge CATHELL have authorized me to state that they join in the views expressed in this dissenting opinion.
. Cf. Chapter 422 of the Acts of 1999, effective October 1, 1999.
. The majority states: "The statutory language of § 20-401 relied upon by the dissent can as readily be interpreted to refer to those five counties wherein a term of confinement is a permissible condition of probation and not as a broad grant of authority for home detention generally.” 355 Md. 299, n. 11, 734 A.2d 690, n. 11 (1999). This is erroneous. The legislative history indicates that when the provision regulating private home detention companies was before the legislature, several private home detention companies testified or wrote letters to the legislative committees considering the proposal. None of these private home detention companies that were to be regulated by the enactment were located in the "five counties” referred to by the majority. Thus, it seems clear that the legislature recognized that judges could use even private home detention companies to supervise probationers outside of the "five counties” the majority contends are the only jurisdictions authorized to use home detention as a condition of probation.
. Apparently the majority is willing to at least recognize that not all forms of home detention are the equivalent of a term of confinement and therefore not all forms of home detention are impermissible. If that is correct, then it would seem the function of the Court would be to determine if the form of home detention used in the instant case is in effect an impermissible term of confinement. Instead of determining whether the home detention in the instant case is one of the “authorized” forms of home detention, this Court says:
"Because home detention may in many cases be the equivalent of a 'term of confinement,’ impermissible in most jurisdictions in Maryland, we will not engage in a case-by-case review to determine if the condition is authorized and simply leave the policy question to the General Assembly, the appropriate forum.” (Emphasis added).
355 Md. at 300 n. 11, 734 A.2d at 691 n. 11. It seems to me that, even if the majority is correct, the Court is abrogating its responsibility when it fails to examine the particular form of home detention imposed in the instant case and fails to determine if it is the equivalent of a “term of confinement.” Engaging in such ''case-by-case review” is the function of a court.