House Bill 570

AN ACT TO CREATE A NEW CODE SECTION THAT PROVIDES A COURT, WHEN DETERMINING THE LEAST ONEROUS CONDITIONS OF RELEASE, SHALL IMPOSE FINANCIAL CONDITIONS OF RELEASE UPON A DEFENDANT ONLY WHEN NO OTHER CONDITIONS WILL ENSURE A DEFENDANT'S APPEARANCE IN COURT; TO PROVIDE THAT IF SUCH FINANCIAL CONDITIONS ARE IMPOSED FOR RELEASE, A COURT SHALL FIRST CONSIDER AN UNSECURED BOND THAT IS SET AT AN AMOUNT THAT TAKES INTO CONSIDERATION A DEFENDANT'S ABILITY TO PAY; TO AMEND SECTIONS 21-23-8, 99-5-9 AND 99-5-11, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PRECEDING SECTION; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. When determining the least onerous conditions of release pursuant to the Mississippi Rules of Criminal Procedure, a court shall impose financial conditions of release only when no other conditions will ensure the defendant's appearance. When financial conditions are imposed, the court shall first consider releasing the defendant on an unsecured bond. If unsecured bond is not deemed a sufficient condition of release, and the court still seeks to impose monetary conditions, bail shall be set at the lowest level necessary to ensure the defendant's appearance and with regard to the defendant's financial ability to post bond. The court shall not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant's inability to pay. Courts may also use a verified, evidence-based risk assessment tool to determine conditions for release.

SECTION 2. Section 21-23-8, Mississippi Code of 1972, is amended as follows:

21-23-8. (1) (a) The purpose of bail is to guarantee appearance and a bail bond shall not be forfeited for any other reason.

(b) (i) If a defendant in any criminal case, proceeding or matter fails to appear for any proceeding as ordered by the municipal court, then the court shall order the bail forfeited and a judgment nisi and a bench warrant issued at the time of nonappearance. The clerk of the municipal court shall notify the surety of the forfeiture by writ of scire facias, with a copy of the judgment nisi and bench warrant attached thereto, within ten (10) working days of such order of judgment nisi either by personal service or by certified mail. Failure of the clerk to provide the required notice within ten (10) working days shall constitute prima facie evidence that the order should be set aside.

(ii) 1. The judgment nisi shall be returnable for ninety (90) days from the date of issuance. If during that period the defendant appears before the municipal court, or is arrested and surrendered, then the judgment nisi shall be set aside. If the surety produces the defendant or provides to the municipal court reasonable mitigating circumstances upon such showing, then the forfeiture shall not be made final. If the forfeiture is made final, a copy of the final judgment shall be served on the surety within ten (10) working days by either personal service or certified mail.

2. Reasonable mitigating circumstances shall be that the defendant is incarcerated in another jurisdiction; that the defendant is hospitalized under a doctor's care; that the defendant is in a recognized drug rehabilitation program; that the defendant has been placed in a witness protection program, in which case it shall be the duty of any agency placing the defendant into a witness protection program to notify the municipal court and the municipal court to notify the surety; or any other reason justifiable to the municipal court.

(2) If a final judgment is entered against a surety licensed by the Department of Insurance and has not been set aside after ninety (90) days, or later if such time is extended by the municipal court issuing the judgment nisi, then the municipal court shall order the department to revoke the authority of the surety to write bail bonds. The Commissioner of Insurance shall, upon notice of the municipal court, notify the surety within five (5) working days of receipt of the order of revocation. If after ten (10) working days of the notification the revocation order has not been set aside by the municipal court, then the commissioner shall revoke the authority of the surety and all agents of the surety and shall notify the sheriff of every county of such revocation.

(3) If within eighteen (18) months of the date of the final forfeiture the defendant appears for municipal court, is arrested or surrendered to the municipal court, or if the defendant is found to be incarcerated in another jurisdiction and a hold order placed on the defendant, then the amount of bail, less reasonable extradition cost, excluding attorney fees, shall be refunded by the municipal court upon application by the surety.

(4) (a) (i) The municipal judge shall set the amount of bail for persons charged with offenses in municipal court and may approve the bond or recognizance therefor.

(ii) When determining the least onerous conditions of release pursuant to the Mississippi Rules of Criminal Procedure, the municipal judge shall impose financial conditions of release only when no other conditions will ensure the defendant's appearance. When financial conditions are imposed, the court shall first consider releasing the defendant on an unsecured bond. If unsecured bond is not deemed a sufficient condition of release, and the court still seeks to impose monetary conditions, bail shall be set at the lowest level necessary to ensure the defendant's appearance and with regard to the defendant's financial ability to post bond. The court shall not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant's inability to pay. A municipal court judge may also use a verified, evidence-based risk assessment tool to determine conditions for release.

(b) In instances where the municipal judge is unavailable and has not provided a bail schedule or otherwise provided for the setting of bail, it is lawful for any officer or officers designated by order of the municipal judge to take bond, cash, property or recognizance, with or without sureties, in a sum to be determined by the officer, payable to the municipality and conditioned for the appearance of the person on the return day and time of the writ before the court to which the warrant is returnable, or in cases of arrest without a warrant, on the day and time set by the court or officer for arraignment, and there remain from day to day and term to term until discharged.

(c) All bonds shall be promptly returned to the court, together with any cash deposited, and be filed and proceeded on by the court in a case of forfeiture. The chief of the municipal police or a police officer or officers designated by order of the municipal judge may approve bonds or recognizances.

(d) All bonds and recognizances in municipal court where the municipal court shall have the jurisdiction to hear and determine the case may be made payable to the municipality and shall have the effect to bind the principal and any sureties on the bond or recognizance until they shall be discharged by due course of law without renewal.

SECTION 3. Section 99-5-9, Mississippi Code of 1972, is amended as follows:

99-5-9. (1) In addition to any type of bail allowed by statute, any committing court, in its discretion, may allow, but not require, any defendant, to whom bail is allowable, to deposit cash as bail bond in lieu of a surety or property bail bond, by depositing such cash sum as the court may direct with the sheriff or officer having custody of defendant, who shall receipt therefor and who shall forthwith deliver the said monies to the county treasurer, who shall receipt therefor in duplicate. The sheriff, or other officer, upon receipt of the county treasurer, shall forthwith deliver one (1) copy of such receipt to the committing court who shall then order the release of such defendant.

(2) The order of the court shall set forth the conditions upon which such cash bond is allowed and shall be determined to be the agreement upon which the * * * ~~bailee~~ defendant has agreed.

(3) The sums received by the county treasurer shall be deposited by him in a special fund to be known as "Cash Bail Fund," and shall be received by him subject to the terms and conditions of the order of the court.

(4) If the committing court authorizes bail by a cash deposit under subsection (1) of this section, but anyone authorized to release a criminal defendant allows the deposit of an amount less than the full amount of the bail ordered by the court, the defendant may post bail by a professional bail agent in an amount equal to one-fourth (1/4) of the full amount fixed under subsection (1) or the amount of the actual deposit whichever is greater.

SECTION 4. Section 99-5-11, Mississippi Code of 1972, is amended as follows:

99-5-11. (1) All justice court judges and all other conservators of the peace are authorized, whenever a person is brought before them charged with any offense not capital for which bail is allowed by law, to take the recognizance or bond of the person, with sufficient sureties, in such penalty as the justice court judge or conservator of the peace may require, for his appearance before the justice court judge or conservator of the peace for an examination of his case at some future day. And if the person thus recognized or thus giving bond fails to appear at the appointed time, it shall be the duty of the justice court judge or conservator of the peace to return the recognizance or bond, with his certificate of default, to the court having jurisdiction of the case, and a recovery may be had therein by scire facias, as in other cases of forfeiture. The justice court judge or other conservator of the peace shall also issue an alias warrant for the defaulter.

(2) In circumstances involving an offense against any of the following: (a) a current or former spouse of the accused or child of that person; (b) a person living as a spouse or who formerly lived as a spouse with the accused or a child of that person; (c) a parent, grandparent, child, grandchild or someone similarly situated to the accused; (d) a person who has a current or former dating relationship with the accused; or (e) a person with whom the accused has had a biological or legally adopted child, the justice court judge or other conservator of the peace shall check, or cause to be made a check, of the status of the person for whom recognizance or bond is taken before ordering bail in the Mississippi Protection Order Registry authorized under Section 93 21 25, and the existence of a domestic abuse protection order against the accused shall be considered when determining appropriate bail.

(3) When determining the least onerous conditions of release pursuant to the Mississippi Rules of Criminal Procedure, the justice court judge or conservator of the peace shall impose financial conditions of release only when no other conditions will ensure the defendant's appearance. When financial conditions are imposed, the court shall first consider releasing the defendant on an unsecured bond. If unsecured bond is not deemed a sufficient condition of release, and the court still seeks to impose monetary conditions, bail shall be set at the lowest level necessary to ensure the defendant's appearance and with regard to the defendant's financial ability to post bond. The justice court judge or conservator of the peace shall not impose a financial condition of release that results in the pretrial detention of a defendant solely due to the defendant's inability to pay. A justice court judge or conservator of the peace may also use a verified, evidence-based risk assessment tool to determine conditions for release.

SECTION 5. This act shall take effect and be in force from and after July 1, 2019.