Senate Bill 2298

AN ACT TO AMEND SECTION 21-23-8, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURE TO DETERMINE BAIL IN MUNICIPAL COURT; TO AMEND SECTION 99-5-11, MISSISSIPPI CODE OF 1972, TO REVISE THE PROCEDURE TO DETERMINE BAIL IN JUSTICE COURT; 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) (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) 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.

(b) The court shall not set the financial conditions of bail solely for the purpose of detaining the defendant. When bail is set, it is presumed that the amount of bail is both necessary to reasonably assure the safety of a victim, witness or the general public and to guarantee the appearance of a defendant as required by the court. The amount of bail is also presumed to be attainable by the defendant. The presumption that bail is attainable by the defendant may be rebutted by the defendant who may file a motion to reduce or set aside the bail requirement with the court due to lack of financial means, which shall also consider the availability of a third-party support system to obtain the defendant's release. The court shall rule on any such motion within forty-eight (48) hours of the filing.

(c) If the defendant or his counsel asserts that the defendant is indigent and cannot afford the amount of bail, the municipal judge shall make a determination of whether the defendant can be released on recognizance, based on the standards enumerated in the Mississippi Rules of Criminal Procedure and any other factors considered relevant by the municipal judge. No misdemeanor defendant shall be incarcerated solely because the defendant cannot afford to post bail; nor shall a misdemeanor defendant be released solely because the defendant cannot afford bail. It is the duty of the municipal judge to ensure that release of the defendant does not jeopardize the community.

(d) The accused may waive an appearance before the judge and execute an appearance bond in an amount determined by the court from the bond guidelines set out in the Mississippi Rules of Criminal Procedure and agree to appear at a specified time and place.

( * * *be) * * * ~~In instances where~~ If 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 the amount of the minimum bail specified in the bond guidelines set out in the Mississippi Rules of Civil Procedure, 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.

(f) In circumstances involving an offense against any of the following: (i) a current or former spouse of the accused or child of that person; (ii) a person living as a spouse or who formerly lived as a spouse with the accused or a child of that person; (iii) a parent, grandparent, child, grandchild or someone similarly situated to the accused; (iv) a person who has a current or former dating relationship with the accused; or (v) a person with whom the accused has had a biological or legally adopted child, the municipal judge 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.

( * * *cg) 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.

( * * *dh) 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 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.

(2) (a) Financial conditions of bail shall not be set for the sole purpose of detaining the defendant. When bail is set, it is presumed that the amount of bail is both necessary to reasonably assure the safety of a victim, witness or general public and to guarantee the appearance of a defendant as required by the court. The amount of bail is also presumed to be attainable by the defendant. The presumption that bail is attainable by the defendant may be rebutted by the defendant who may file a motion to reduce or set aside the bail requirement with the court due to lack of financial means, which shall also consider the availability of a third-party support system to obtain the defendant's release. The court shall rule on any such motion within forty-eight (48) hours of the filing.

(b) In cases in which the defendant or his counsel asserts that the defendant is indigent and cannot afford the amount of bail, the justice court judge or conservator of the peace shall make a determination of whether the defendant can be released on recognizance, based on the standards enumerated in the Mississippi Rules of Criminal Procedure and any other factors considered relevant by the municipal judge. No misdemeanor defendant shall be incarcerated solely because the defendant cannot afford to post bail; nor shall a misdemeanor defendant be released solely because the defendant cannot afford bail. It is the duty of the justice court judge or conservator of the peace to ensure that release of the defendant does not jeopardize the community.

(c) The accused may waive an appearance before the judge and execute an appearance bond in an amount determined by the court from the bond guidelines set out in the Mississippi Rules of Criminal Procedure and agree to appear at a specified time and place.

(d) If the justice court judge or conservator of the peace is unavailable and has not otherwise provided for the setting of bail, it is lawful for any officer or officers designated by order of the justice court judge or conservator of the peace to take bond, cash, property or recognizance, with or without sureties, in the amount of the minimum bail specified in the bond guidelines set out in the Mississippi Rules of Criminal Procedure, payable to the county 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.

(3) 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.

( * * *24) 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.

( * * *35) After the court considers the provisions of subsection (2) of this section, a misdemeanant may be released on his or her own recognizance unless:

(a) The misdemeanant:

(i) Is on probation or parole;

(ii) Has other unresolved charges pending; or

(iii) Has a history of nonappearance; or

(b) The court finds that:

(i) The release of the misdemeanant would constitute a special danger to any other person or to the community; or

(ii) Release of the misdemeanant on his or her own recognizance is highly unlikely to assure the appearance of the misdemeanant as required.

SECTION 3. This act shall take effect and be in force from and after July 1, 2023.