Bill Text: MS HB468 | 2021 | Regular Session | Introduced

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Bill Title: Bail procedures; revise.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2021-02-02 - Died In Committee [HB468 Detail]

Download: Mississippi-2021-HB468-Introduced.html

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MISSISSIPPI LEGISLATURE

2021 Regular Session

To: Corrections; Judiciary B

By: Representative Anderson (110th)

House Bill 468

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.

     ( * * *12)  (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 evidences such in 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.

              ( * * *iii)  If a defendant in any criminal case, proceeding or matter fails to * * *appear make a first appearance for any proceeding as ordered by the municipal * * *court judge, * * *then 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, including, but not limited to, 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 * * *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.

              ( * * *iiiii)  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.

     ( * * *23)  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.

     ( * * *34)  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.

     ( * * *45)  (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. determine the conditions, of a defendant's release at the initial appearance.  Every order of release granted under the provisions of this section shall include:

              (i)  The date and time that the defendant is to appear in court, and clearly states that the defendant shall comply with all orders of the court;

              (ii)  Language that the defendant is prohibited from committing additional crimes during such release;

              (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 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; and/or

              (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 evidence in the record 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 (SNAP), Temporary Assistance for Needy Families (TANF), 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.

     ( * * *(b)7)  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., the court shall provide for the setting of bail by another judge to ensure individualized assessment as required and provided in this section.

     ( * * *c8)  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.

     ( * * *d9)  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.  All conservators of the peace may take recognizance or bond; certificate of default; alias warrant; when protection order registry must be checked; when bond not required.  (1)  All justice court judges and all other conservators of the peace * * *are authorized 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, 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, 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 evidence in the record 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 (a) receives public assistance, under programs such as the Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), 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.  * * *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.  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.

     (3)  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.  Section 99-5-13, Mississippi Code of 1972, is amended as follows:

     99-5-13. * * * When it shall appear to the committing court or the court before which any person charged with a criminal offense has given bail to appear is insufficient or excessive in any respect, the court may (i) after a hearing, order the issuance of a revised mittimus reducing the previously set bail; or (ii) order the issuance of process for the arrest of such person, and may, after a hearing, require him to give bail as may be ordered, and, in default thereof, may commit him to jail as in other cases. 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 evidenced in 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 shall 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 (SNAP), Temporary Assistance for Needy Families (TANF), 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, 2021.

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