MISSISSIPPI LEGISLATURE
2021 Regular Session
To: Judiciary B; Appropriations
By: Representative Bain
AN ACT TO AMEND SECTION 99-18-1, MISSISSIPPI CODE OF 1972, TO REVISE THE QUALIFICATIONS OF THE STATE PUBLIC DEFENDER; TO REMOVE THE REQUIREMENT THAT FUNDS FOR THE OFFICE OF THE STATE PUBLIC DEFENDER SHALL BE SUPPLIED FROM SPECIFIC FUNDS; TO REMOVE THE AUTHORITY OF THE STATE PUBLIC DEFENDER TO TRANSFER MONEY BETWEEN THE VARIOUS FUNDING SOURCES; TO REMOVE THE REQUIREMENT FOR THE STATE PUBLIC DEFENDER TO COORDINATE THE COLLECTION AND DISSEMINATION OF STATISTICAL DATA IN COORDINATION WITH THE MISSISSIPPI PUBLIC DEFENDERS' TASK FORCE; TO AMEND SECTION 99-18-13, MISSISSIPPI CODE OF 1972, TO REVISE THE POWERS AND DUTIES OF THE STATE PUBLIC DEFENDER, TO AUTHORIZE HIS OR HER ABILITY TO SOLICIT AND ACCEPT MONIES, GIFTS AND SERVICES FROM ANY PUBLIC OR PRIVATE SOURCE, AND TO REPRESENT AN INDIGENT PERSON IN CRIMINAL OR YOUTH COURT MATTERS WHEN SUCH PERSON HAS A CONSTITUTIONAL RIGHT TO APPOINTED REPRESENTATION; TO AMEND SECTION 99-18-17, MISSISSIPPI CODE OF 1972, TO TERMINATE THE CAPITAL DEFENSE FUND AS A SPECIAL FUND IN THE STATE TREASURY; TO CREATE NEW SECTION 99-18-19, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE INDIGENT APPEALS DIVISION WITHIN THE OFFICE OF THE STATE PUBLIC DEFENDER; TO CREATE NEW SECTION 99-8-21, MISSISSIPPI CODE OF 1972, TO ESTABLISH THE PUBLIC DEFENDER TRAINING DIVISION WITHIN THE OFFICE OF THE STATE PUBLIC DEFENDER; TO REPEAL SECTION 99-40-1, MISSISSIPPI CODE OF 1972, TO REPEAL THE PROVISIONS WHICH ESTABLISHED THE DIVISIONS OF INDIGENT APPEALS AND PUBLIC DEFENDER TRAINING WITHIN THE OFFICE OF THE STATE PUBLIC DEFENDER, AND WHICH CREATED SPECIAL FUNDS IN THE STATE TREASURY FOR EACH DIVISION; TO AMEND SECTION 43-21-203, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PRECEDING PROVISIONS; TO AMEND SECTION 43-21-261, MISSISSIPPI CODE OF 1972, TO REQUIRE THE ADMINISTRATIVE OFFICE OF COURTS TO PROVIDE THE OFFICE OF THE STATE PUBLIC DEFENDER WITH READ-ONLY ACCESS TO THE MISSISSIPPI YOUTH COURT INFORMATION DELIVERY SYSTEM ("MYCIDS"); AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 99-18-1, Mississippi Code of 1972, is amended as follows:
99-18-1. (1) There is hereby created the Office of State Public Defender. The Office of State Public Defender shall consist of a State Defender who shall be appointed by the Governor with the advice and consent of the Senate for a term of four (4) years and staffed by any necessary personnel as determined and hired by the State Defender.
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( * * *2) The State Defender must be a duly
licensed attorney admitted to the practice of law in this state, have practiced
in the area of criminal law for at least five (5) years and shall meet all
qualifications to serve as * * * trial * * * or appellate counsel in death
penalty cases as may be set by the Supreme Court of Mississippi. The salary of
the State Defender shall be no more than the maximum amount allowed by statute
for a district attorney.
( * * *3) The State Defender may be removed
by the Governor upon finding that the State Defender is not qualified under
law, has failed to perform the duties of the office, or has acted beyond the
scope of the authority granted by law for the office.
( * * *4) The Office of State Public Defender
shall be responsible for the administration, budget and finances of the
Divisions of Capital Defense Counsel, Indigent Appeals and Public Defender
Training, which shall be divisions of the Office of State Public Defender.
( * * *5) The State Defender may
simultaneously serve as State Defender and as director of one or more divisions
but shall receive no additional compensation for doing so. Nothing in this
chapter shall prohibit the State Defender from directly representing clients of
the office. Nothing in this chapter shall be construed to prevent an employee
of one (1) division of the Office of the State Public Defender from working, in
whole or in part, for another division.
( * * *6) The State Defender shall coordinate
the collection and dissemination of statistical data and make such reports as
are required of the divisions, develop plans and proposals for further
development of a statewide public defender system * * * and to act as spokesperson for all matters relating to
indigent defense representation.
( * * *7) From and after July 1, 2016, the
expenses of this agency shall be defrayed by appropriation from the State
General Fund and all user charges and fees authorized under this section shall
be deposited into the State General Fund as authorized by law.
( * * *8) From and after July 1, 2016, no
state agency shall charge another state agency a fee, assessment, rent or other
charge for services or resources received by authority of this section.
SECTION 2. Section 99-18-13, Mississippi Code of 1972, is amended as follows:
99-18-13. (1) The State Defender is hereby empowered to pay and disburse salaries, employment benefits and charges relating to employment of division staff and to establish their salaries and expenses of the office; to incur and pay travel expenses of staff necessary for the performance of the duties of the office; to rent or lease on such terms as he may think proper such office space as is necessary in the City of Jackson to accommodate the staff; to enter into and perform contracts and to purchase such necessary office supplies and equipment as may be needed for the proper administration of said offices within the funds appropriated for such purpose; and to incur and pay such other expenses as are appropriate and customary to the operation of the office. The State Defender is further authorized to solicit and accept monies, gifts, grants or services from any public or private source, for the purpose of funding, operating and executing the duties of the office.
(2) The State Defender may represent
an indigent person in criminal or youth court matters where the person has a
constitutional right to appointed counsel and provide representation to
parents or guardians who have been determined * * * to be indigent and in
need of representation in an abuse, neglect or termination of parental rights
proceeding or appeal therefrom. In determining whether a person is
indigent, the agency shall substantially follow the procedure set forth in
Section 99-19-20.1(1).
(3) Representation may be provided by staff or contract counsel including, but not limited to, by contract with legal services organizations and/or county public defender programs.
SECTION 3. Section 99-18-17, Mississippi Code of 1972, is amended as follows:
99-18-17. * * * If at any time during the representation of
two (2) or more defendants, the State Defender determines that the interests of
those persons are so adverse or hostile they cannot all be represented by the
staff of the Capital Counsel Division without conflict of interest, or if the
State Defender determines that the volume or number of representations shall so
require, the State Defender, in his sole discretion, notwithstanding any
statute or regulation to the contrary, shall be authorized to employ qualified
private counsel. Fees and expenses approved by order of the court of original
jurisdiction, including investigative and expert witness expenses of such
private counsel, shall be paid by funds appropriated * * * for this
purpose.
* * *
SECTION 4. The following shall be codified as Section 99-18-19, Mississippi Code of 1972:
99-18-19. (1) There is created within the Office of the State Public Defender, the Indigent Appeals Division. This division shall consist of the Indigent Appeals Director, who must be an attorney in good standing with the Mississippi Bar Association, and shall be staffed by any necessary personnel as determined necessary and hired by the State Defender. The Indigent Appeals Director shall be appointed by the State Defender. The remaining attorneys and other staff shall be appointed by the State Defender and shall serve at the will and pleasure of the State Defender. Attorneys in the division shall be active members of the Mississippi Bar Association, and shall practice law exclusively for the division, and shall not engage in any other practice of law. The division shall not engage in any litigation other than that related to the duties of the division. The Indigent Appeals Director shall be compensated at no more than the maximum amount allowed by statute for a comparable assistant district attorney.
(2) The division may provide representation on appeal for indigent persons convicted of felonies and indigent juveniles adjudicated delinquent in youth court. The division may provide advice and assistance to attorneys representing persons under felony charges in the trial courts and juveniles in youth court delinquency proceedings.
SECTION 5. The following shall be codified as Section
99-18-21, Mississippi Code of 1972:
99-18-21. There is created in the Office of the State Public Defender, the Public Defender Training Division. This division shall be staffed by any necessary personnel as determined and hired by the State Defender. The mission of the division shall be to work closely with the Mississippi Public Defenders' Association to provide training and services to public defenders practicing in all state, county, municipal and youth courts. These services shall include, but not be limited to, continuing legal education, cases updates and legal research. The division shall provide:
(a) Education training for public defenders practicing in all state, county, municipal and youth courts;
(b) Technical assistance for public defenders practicing in all state, county, municipal and youth courts; and
(c) Current and accurate information to the Legislature pertaining to the needs of public defenders practicing in all state, county, municipal and youth courts.
SECTION 6. Section 99-40-1, Mississippi Code of 1972, which established the divisions of Indigent Appeals and Public Defender Training within the Office of the State Public Defender, and created special funds in the State Treasury for each division, is hereby repealed.
SECTION 7. Section 43-21-203, Mississippi Code of 1972, is amended as follows:
43-21-203. (1) The youth court shall be in session at all times.
(2) All cases involving children shall be heard at any place the judge deems suitable but separately from the trial of cases involving adults.
(3) Hearings in all cases involving children shall be conducted without a jury and may be recessed from time to time.
(4) All hearings shall be conducted under such rules of evidence and rules of court as may comply with applicable constitutional standards.
(5) No proceeding by the youth court in cases involving children shall be a criminal proceeding but shall be entirely of a civil nature.
(6) The general public shall be excluded from the hearing, and only those persons shall be admitted who are found by the youth court to have a direct interest in the cause or work of the youth court. Any person found by the youth court to have a direct interest in the cause shall have the right to appear and be represented by legal counsel. To facilitate the mandates prescribed in Sections 43-21-201(3) and 99-18-3(2), all youth courts shall grant access to the office of the State Public Defender upon the representative's execution of a confidentiality oath, as may be prescribed by the Supreme Court of Mississippi.
(7) In all hearings, a complete record of all evidence shall be taken by stenographic reporting, by mechanical or electronic device or by some combination thereof.
(8) The youth court may exclude the attendance of a child from a hearing in neglect and abuse cases with consent of the child's counsel. The youth court may exclude the attendance of a child from any portion of a disposition hearing that would be injurious to the best interest of the child in delinquency and children in need of supervision cases with consent of the child's counsel.
(9) All parties to a youth court cause shall have the right at any hearing in which an investigation, record or report is admitted in evidence:
(a) To subpoena, confront and examine the person who prepared or furnished data for the report; and
(b) To introduce evidence controverting the contents of the report.
(10) Except as provided by Section 43-21-561(5) or as otherwise provided by this chapter, the disposition of a child's cause or any evidence given in the youth court in any proceedings concerning the child shall not be admissible against the child in any case or proceeding in any court other than a youth court.
(11) An order or ruling of the youth court judge delivered orally must be reduced to writing within forty-eight (48) hours, excluding Saturdays, Sundays and statutory state holidays.
SECTION 8. Section 43-21-261, Mississippi Code of 1972, is amended as follows:
43-21-261. (1) Except as otherwise provided in this section, records involving children shall not be disclosed, other than to necessary staff or officials of the youth court, a guardian ad litem appointed to a child by the court, or a Court-Appointed Special Advocate (CASA) volunteer who may be assigned in an abuse and neglect case, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure. Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety, the functioning of the youth court, or to identify a person who knowingly made a false allegation of child abuse or neglect, and then only to the following persons:
(a) The judge of another youth court or member of another youth court staff;
(b) The court of the parties in a child custody or adoption cause in another court;
(c) A judge of any other court or members of another court staff, including the chancery court that ordered a forensic interview;
(d) Representatives of a public or private agency providing supervision or having custody of the child under order of the youth court;
(e) Any person engaged in a bona fide research purpose, provided that no information identifying the subject of the records shall be made available to the researcher unless it is absolutely essential to the research purpose and the judge gives prior written approval, and the child, through his or her representative, gives permission to release the information;
(f) The Mississippi Department of Employment Security, or its duly authorized representatives, for the purpose of a child's enrollment into the Job Corps Training Program as authorized by Title IV of the Comprehensive Employment Training Act of 1973 (29 USCS Section 923 et seq.). However, no records, reports, investigations or information derived therefrom pertaining to child abuse or neglect shall be disclosed;
(g) Any person pursuant to a finding by a judge of the youth court of compelling circumstances affecting the health, safety or well-being of a child and that such disclosure is in the best interests of the child or an adult who was formerly the subject of a youth court delinquency proceeding;
(h) A person who was the subject of a knowingly made false allegation of child abuse or neglect which has resulted in a conviction of a perpetrator in accordance with Section 97-35-47 or which allegation was referred by the Department of Child Protection Services to a prosecutor or law enforcement official in accordance with the provisions of Section 43-21-353(4).
Law enforcement agencies may disclose information to the public concerning the taking of a child into custody for the commission of a delinquent act without the necessity of an order from the youth court. The information released shall not identify the child or his address unless the information involves a child convicted as an adult.
(2) Any records involving children which are disclosed under an order of the youth court or pursuant to the terms of this section and the contents thereof shall be kept confidential by the person or agency to whom the record is disclosed unless otherwise provided in the order. Any further disclosure of any records involving children shall be made only under an order of the youth court as provided in this section.
(3) Upon request, the parent, guardian or custodian of the child who is the subject of a youth court cause or any attorney for such parent, guardian or custodian, shall have the right to inspect any record, report or investigation relevant to a matter to be heard by a youth court, except that the identity of the reporter shall not be released, nor the name of any other person where the person or agency making the information available finds that disclosure of the information would be likely to endanger the life or safety of such person. The attorney for the parent, guardian or custodian of the child, upon request, shall be provided a copy of any record, report or investigation relevant to a matter to be heard by a youth court, but the identity of the reporter must be redacted and the name of any other person must also be redacted if the person or agency making the information available finds that disclosure of the information would be likely to endanger the life, safety or well-being of the person. A record provided to the attorney under this section must remain in the attorney's control and the attorney may not provide copies or access to another person or entity except members of the attorney's multi-disciplinary defense team, including experts engaged by the attorney, without prior consent of a court with appropriate jurisdiction.
(4) Upon request, the child who is the subject of a youth court cause shall have the right to have his counsel inspect and copy any record, report or investigation which is filed with the youth court or which is to be considered by the youth court at a hearing.
(5) (a) The youth court prosecutor or prosecutors, the county attorney, the district attorney, the youth court defender or defenders, or any attorney representing a child shall have the right to inspect and copy any law enforcement record involving children.
(b) The Department of Child Protection Services shall disclose to a county prosecuting attorney or district attorney any and all records resulting from an investigation into suspected child abuse or neglect when the case has been referred by the Department of Child Protection Services to the county prosecuting attorney or district attorney for criminal prosecution.
(c) Agency records made confidential under the provisions of this section may be disclosed to a court of competent jurisdiction.
(d) Records involving children shall be disclosed to the Division of Victim Compensation of the Office of the Attorney General upon the division's request without order of the youth court for purposes of determination of eligibility for victim compensation benefits.
(6) Information concerning an investigation into a report of child abuse or child neglect may be disclosed by the Department of Child Protection Services without order of the youth court to any attorney, physician, dentist, intern, resident, nurse, psychologist, social worker, family protection worker, family protection specialist, child caregiver, minister, law enforcement officer, or a public or private school employee making that report pursuant to Section 43-21-353(1) if the reporter has a continuing professional relationship with the child and a need for such information in order to protect or treat the child.
(7) Information concerning an investigation into a report of child abuse or child neglect may be disclosed without further order of the youth court to any interagency child abuse task force established in any county or municipality by order of the youth court of that county or municipality.
(8) Names and addresses of juveniles twice adjudicated as delinquent for an act which would be a felony if committed by an adult or for the unlawful possession of a firearm shall not be held confidential and shall be made available to the public.
(9) Names and addresses of juveniles adjudicated as delinquent for murder, manslaughter, burglary, arson, armed robbery, aggravated assault, any sex offense as defined in Section 45-33-23, for any violation of Section 41-29-139(a)(1) or for any violation of Section 63-11-30, shall not be held confidential and shall be made available to the public.
(10) The judges of the circuit and county courts, and presentence investigators for the circuit courts, as provided in Section 47-7-9, shall have the right to inspect any youth court records of a person convicted of a crime for sentencing purposes only.
(11) The victim of an offense committed by a child who is the subject of a youth court cause shall have the right to be informed of the child's disposition by the youth court.
(12) A classification hearing officer of the State Department of Corrections, as provided in Section 47-5-103, shall have the right to inspect any youth court records, excluding abuse and neglect records, of any offender in the custody of the department who as a child or minor was a juvenile offender or was the subject of a youth court cause of action, and the State Parole Board, as provided in Section 47-7-17, shall have the right to inspect such records when the offender becomes eligible for parole.
(13) The youth court shall notify the Department of Public Safety of the name, and any other identifying information such department may require, of any child who is adjudicated delinquent as a result of a violation of the Uniform Controlled Substances Law.
(14) The Administrative Office of Courts shall have the right to inspect any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose.
(15) Upon a request by a youth court, the Administrative Office of Courts shall disclose all information at its disposal concerning any previous youth court intakes alleging that a child was a delinquent child, child in need of supervision, child in need of special care, truant child, abused child or neglected child, as well as any previous youth court adjudications for the same and all dispositional information concerning a child who at the time of such request comes under the jurisdiction of the youth court making such request.
(16) The Administrative Office of Courts may, in its discretion, disclose to the Department of Public Safety any or all of the information involving children contained in the office's youth court data management system known as Mississippi Youth Court Information Delivery System or "MYCIDS."
(17) The youth courts of the state shall disclose to the Joint Legislative Committee on Performance Evaluation and Expenditure Review (PEER) any youth court records in order that the number of youthful offenders, abused, neglected, truant and dependent children, as well as children in need of special care and children in need of supervision, may be tracked with specificity through the youth court and adult justice system, and to utilize tracking forms for such purpose. The disclosure prescribed in this subsection shall not require a court order and shall be made in sortable, electronic format where possible. The PEER Committee may seek the assistance of the Administrative Office of Courts in seeking this information. The PEER Committee shall not disclose the identities of any youth who have been adjudicated in the youth courts of the state and shall only use the disclosed information for the purpose of monitoring the effectiveness and efficiency of programs established to assist adjudicated youth, and to ascertain the incidence of adjudicated youth who become adult offenders.
(18) In every case where an abuse or neglect allegation has been made, the confidentiality provisions of this section shall not apply to prohibit access to a child's records by any state regulatory agency, any state or local prosecutorial agency or law enforcement agency; however, no identifying information concerning the child in question may be released to the public by such agency except as otherwise provided herein.
(19) In every case of child abuse or neglect, if a child's physical condition is medically labeled as medically "serious" or "critical" or a child dies, the confidentiality provisions of this section shall not apply. In such cases, the following information may be released by the Mississippi Department of Child Protection Services: the cause of the circumstances regarding the fatality or medically serious or critical physical condition; the age and gender of the child; information describing any previous reports of child abuse or neglect investigations that are pertinent to the child abuse or neglect that led to the fatality or medically serious or critical physical condition; the result of any such investigations; and the services provided by and actions of the state on behalf of the child that are pertinent to the child abuse or neglect that led to the fatality or medically serious or critical physical condition.
(20) Any member of a foster care review board designated by the Department of Child Protection Services shall have the right to inspect youth court records relating to the abuse, neglect or child in need of supervision cases assigned to such member for review.
(21) Information concerning an investigation into a report of child abuse or child neglect may be disclosed without further order of the youth court in any administrative or due process hearing held, pursuant to Section 43-21-257, by the Department of Child Protection Services for individuals whose names will be placed on the central registry as substantiated perpetrators.
(22) The Department of Child Protection Services may disclose records involving children to the following:
(a) A foster home, residential child-caring agency or child-placing agency to the extent necessary to provide such care and services to a child;
(b) An individual, agency or organization that provides services to a child or the child's family in furtherance of the child's permanency plan to the extent necessary in providing those services;
(c) Health and mental health care providers of a child to the extent necessary for the provider to properly treat and care for the child;
(d) An educational institution or educational services provider where the child is enrolled or where enrollment is anticipated to the extent necessary for the school to provide appropriate services to the child; and
(e) Any other state agency if the disclosure is necessary to the department in fulfilling its statutory responsibilities in protecting the best interests of the child.
(23) The Administrative Office of Courts shall provide, to the Office of the State Public Defender, read-only access to the youth court data management system known as the Mississippi Youth Court Information Delivery Systems or "MYCIDS."
SECTION 9. This act shall take effect and be in force from and after July 1, 2021.