MISSISSIPPI LEGISLATURE
2019 Regular Session
To: Judiciary B
By: Representative Horan
AN ACT TO AMEND SECTIONS 21-23-8, 99-5-11 AND 99-5-13, MISSISSIPPI CODE OF 1972, TO PROVIDE DEFINITIONS RELATED TO BAIL; TO REVISE THE PROCEDURES FOR INITIAL BAIL APPEARANCES; TO REVISE PROCEDURES FOR PRETRIAL RELEASE; TO CLARIFY HOW THE AMOUNT OF BAIL FOR A MINOR IS DETERMINED; TO REQUIRE CERTAIN INFORMATION TO BE PROVIDED TO DEFENDANTS UPON RELEASE; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 21-23-8, Mississippi Code of 1972, is amended as follows:
21-23-8. (1) The following words shall have the meanings ascribed herein, unless the context indicates otherwise:
(a) "Bail" means a monetary amount for or condition of pretrial release from custody, normally set by a judge at the initial appearance.
(b) "Cash deposit bond" means an appearance bond secured by deposit with the clerk of security, in the form of a cash deposit or certified funds, in an amount set by the judge.
(c) "Personal recognizance" means release of a defendant without any condition relating to a deposit of any financial or monetary security.
(d) "Unsecured appearance bond" means an undertaking to pay a specified sum of money to the clerk of the circuit, county, justice, or municipal court, for the use of the State of Mississippi or the municipality, on the failure of a person released to comply with its conditions.
(e) "Secured appearance bond" means an appearance bond secured by deposit with the clerk of security equal to the full amount thereof.
(f) "Surety" means someone, other than the person seeking release, who executes an appearance bond, and is therefore bound to pay its amount, if the person released fails to appear for any proceeding as ordered by the court.
( * * *2) (a) The purpose of bail is to
guarantee appearance and a bail bond shall not be forfeited for any other
reason. Any defendant charged with an offense that is eligible for bail
shall be released as a matter of right before or during trial with nonfinancial
or monetary conditions, including, but not limited to, the defendant's personal
recognizance, an unsecured appearance bond, or other nonfinancial condition,
unless the court before which the charge is filed or pending determines in
writing or on the record that such a release will not reasonably assure the
defendant's appearance as required, or that the defendant's release poses a
risk of imminent serious physical harm to a reasonably identifiable person.
(b) (i) A bail hearing shall be held at the initial appearance within forty-eight (48) hours of arrest. Nothing shall prohibit a judicial officer from issuing a standing order authorizing release on recognizance, on an unsecured appearance bond, or nonfinancial condition for individuals charged with misdemeanor offenses prior to the initial appearance. When a court orders nonfinancial conditions the court shall impose the least onerous restrictive condition or set of conditions, as described in subsection (5) of this section that will reasonably assure the defendant's appearance, or will eliminate or minimize the risk of imminent serious physical harm to a reasonably identifiable person.
( * * *ii) If a defendant in any criminal
case, proceeding or matter fails to * * * make a first appearance for any
proceeding as ordered by the municipal * * * judge, * * * the court shall issue a notice to the
defendant that he or she failed to appear as required by law in a documented
form, including, but not limited to, an email, certified mailed letter, text
message or personal service; and shall issue a summons by certified mail or
personal service to that defendant that requires appearance in court on a new
date.
If the defendant in any
misdemeanor criminal case, proceeding or matter fails to make a second
appearance, the court shall serve the defendant by certified mail or personal
service with a notice to appear in court for a bail forfeiture hearing. During
such hearing, the court shall consider any information specific to the
individual defendant's circumstances, the date, location and time of the
appearance, or any other justifiable mitigating circumstances. Before the
court orders * * *the bail forfeited and a judgment nisi and a bench warrant
issued at the time of nonappearance, the court shall provide a record to
establish that a defendant's failure to appear was willful. Only upon a
determination that the failure to appear was willful, shall the clerk of
the municipal court * * *
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.
( * * *iii) 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.
( * * *3) 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.
( * * *4) 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.
( * * *5) (a) The municipal judge shall * * *
determine a defendant's conditions of release at the initial appearance.
Every order of release granted under the provisions of this section shall
include the:
(i) Date and time that the defendant is to appear in court, and clearly state that the defendant shall comply with all orders of the court;
(ii) Language that the defendant is prohibited from commission of any additional crimes;
(iii) A requirement that the defendant promptly notify the court of any change of address; and
(iv) Language that explains to the defendant that he or she is to meet with the public defender or retained attorney as directed by such person.
(b) If, in accordance with subsection (2)(a) of this section, the judge finds in writing or on the record that the defendant cannot be released pending or during trial on the defendant's personal recognizance or on an unsecured appearance bond, the judge may order one (1) or more of the following conditions necessary to secure a defendant's appearance or to protect the public:
(i) Execution of a cash deposit bond in an amount specified by the court, either with or without requiring that the defendant deposit with the clerk security in an amount as required by the court;
(ii) Execution of a secured appearance bond;
(iii) Placing the defendant in the custody of a designated person or organization agreeing to supervise the defendant;
(iv) Restrictions on the defendant's travel, associations, or place of abode during the period of release;
(v) Restrictions on the defendant's direct or indirect contact with any specified person(s);
(vi) Return to custody after specified hours;
(vii) Any other conditions which the court deems necessary.
(6) (a) A defendant may not be detained on an unaffordable secured money bail. A secured appearance bond shall be considered unattainable if the defendant cannot afford to pay the secured appearance bond within twenty-four (24) hours.
(b) Before requiring a secured appearance bond, a court must make a substantive finding in writing or on the record about whether the defendant has the present ability to pay the secured appearance bond within twenty-four (24) hours. A secured appearance bond shall be considered presumptively unattainable if the defendant (i) receives public assistance, under programs such as the Supplemental Nutrition Assistance Program (also known as food stamps), Temporary Assistance for Needy Families, or Medicaid; (ii) receives Disability Insurance; (iii) resides in public housing; or (iv) earns less than one hundred twenty-five percent (125%) of the current Federal Poverty Guidelines. The bail for any minor whose case, proceeding or matter, falls under the jurisdiction of the municipal court, shall be based on the ability of the parents or legal guardians to pay such bail. The judge shall not consider the financial ability of friends or relatives not legally responsible for the defendant when determining bail. The judge shall only consider the value in tangible personal property, including, but not limited to, motor vehicles, household goods, cash on hand, etc., other assets or monies in excess of Ten Thousand Dollars ($10,000.00). Any such property valued up to Ten Thousand Dollars ($10,000.00), and any such property exempt from seizure by Section 85-3-1 shall be excluded from any determination of bail. Under no circumstances shall bail be set in an amount greater than the maximum fine for a charged offense.
( * * *7) In instances where the municipal
judge is unavailable * * *, the court shall provide
for the setting of bail by another judge to ensure individualized assessment as
required and provided in this section.
( * * *8) 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. * * *
( * * *9) 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 2. 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 * * * shall, 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, * * * as a matter of right
release a defendant pending or during trial on the personal recognizance or on
an appearance bond unless the court before which the charge is filed or pending
determines that such a release will not reasonably assure the defendant's
appearance as required, or that the defendant's release poses a risk of
imminent serious physical harm to a reasonably identifiable person. Before
requiring a secured appearance bond, a court shall make a substantive finding
in writing or on the record about whether the defendant has the present ability
to pay the secured appearance bond within 24 hours. A secured appearance bond
shall be considered presumptively unattainable if the defendant (a) receives
public assistance, under programs such as the Supplemental Nutrition Assistance
Program (also known as food stamps), Temporary Assistance for Needy Families,
or Medicaid; (b) receives Disability Insurance; (c) resides in public housing;
or (d) earns less than one hundred twenty-five percent (125%) of the current
Federal Poverty Guidelines. The bail for any minor whose case, proceeding or
matter, falls under the jurisdiction of the municipal court, shall be based on
the ability of the parents or legal guardians to pay such bail. The judge
shall not consider the financial ability of friends or relatives not legally
responsible for the defendant when determining bail. The judge shall only
consider the value in tangible personal property, including, but not limited
to, motor vehicles, household goods, cash on hand, etc., other assets or monies
in excess of Ten Thousand Dollars ($10,000.00). Any such property valued up to
Ten Thousand Dollars ($10,000.00), and any such property exempt from seizure by
Section 85-3-1 shall be excluded from any determination of bail. Under no
circumstances shall bail be set in an amount greater than the maximum fine for
a charged offense. 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. * * *
(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. The listing of a defendant's name on the registry shall not be the sole reason for which bail should be denied unless the court before which the charge is filed or pending determines that such a release will not reasonably assure the defendant's appearance as required or the defendant's release poses a risk of imminent serious physical harm to a reasonably identifiable person who is the subject of a protective order. If bail is allowed, the justice court judge or other conservator of the peace shall provide notice to the person or persons who are protected by the order.
SECTION 3. Section 99-5-13, Mississippi Code of 1972, is amended as follows:
99-5-13. * * * When a
defendant has failed to appear, after being given proper notice as specified in
Section 99-5-11, or has failed to comply with the least onerous nonfinancial
conditions ordered by the court, the court, only after a determination made and
explained in writing or on the record about the accused's present ability to
reasonably pay the secured appearance bond within twenty-four (24) hours, shall
issue a summons to require the defendant to give bail as reasonably necessary
to ensure court appearances.
Before determining bail, the conservator of the peace or justice of the peace will evaluate a defendant's ability to pay a secured appearance bond. A secured appearance bond shall be considered presumptively unattainable if the defendant (i) receives public assistance, under programs such as the Supplemental Nutrition Assistance Program (also known as food stamps), Temporary Assistance for Needy Families, or Medicaid; (ii) receives Disability Insurance; (iii) resides in public housing; or (iv) earns less than one hundred twenty-five percent (125%) of the current Federal Poverty Guidelines. The bail for any minor whose case, proceeding or matter, falls under the jurisdiction of the municipal court, shall be based on the ability of the parents or legal guardians to pay such bail. The judge shall not consider the financial ability of friends or relatives not legally responsible for the defendant when determining bail. The judge shall only consider the value in tangible personal property, including, but not limited to, motor vehicles, household goods, cash on hand, etc., other assets or monies in excess of Ten Thousand Dollars ($10,000.00). Any such property valued up to Ten Thousand Dollars ($10,000.00), and any such property exempt from seizure by Section 85-3-1 shall be excluded from any determination of bail. Under no circumstances shall bail be set in an amount greater than the maximum fine for a charged offense.
SECTION 4. This act shall take effect and be in force from and after July 1, 2019.