Bill Text: MS HB366 | 2022 | Regular Session | Introduced
Bill Title: Bail; revise how amounts are set.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2022-02-01 - Died In Committee [HB366 Detail]
Download: Mississippi-2022-HB366-Introduced.html
MISSISSIPPI LEGISLATURE
2022 Regular Session
To: Judiciary B
By: Representative Newman
House Bill 366
AN ACT TO AMEND SECTION 21-23-8, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE AMOUNT OF BAIL SHALL BE PRESUMED TO BE ATTAINABLE BY THE DEFENDANT; TO REQUIRE THE COURT TO MAKE A DETERMINATION OF WHETHER THE DEFENDANT CAN BE RELEASED ON RECOGNIZANCE IN CASES OF INDIGENCY; TO PROVIDE THAT NO MISDEMEANOR DEFENDANT SHALL BE INCARCERATED OR RELEASED SOLELY BECAUSE HE CANNOT AFFORD TO POST BAIL; TO PROVIDE THAT THE COURT MAY NOT REQUIRE CASH BAIL FROM THE DEFENDANT; TO AMEND SECTION 99-5-9, MISSISSIPPI CODE OF 1972, TO CONFORM TO THE PRECEDING SECTION; 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) 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.
(c) In cases in which 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. A defendant who has previously failed to appear on a criminal charge shall be released only with secured bail.
( * * *d) * * * If the municipal
judge is unavailable * * *,
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 * * * as set by the * * * bail schedule, 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.
( * * *e) 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.
( * * *f) 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 99-5-9, 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 * * * 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 3. This act shall take effect and be in force from and after July 1, 2022.
