Is there a mandatory 24-hour holding period for someone arrested on a domestic violence charge in Mississippi before they can bond out?

Plain-English summary

Judge Michael Prewitt heard from law enforcement officers who told him that anyone arrested on a domestic-violence charge had to be held in jail 24 hours before a judge could set bail. The judge thought that was wrong; he believed a judge had to be contacted within 24 hours to set bail terms, with no separate holding period. He asked the AG to clarify.

The AG agreed with the judge.

§ 99-5-37 used to authorize a "twenty-four-hour cooling-off period" specifically for domestic violence cases. But the Legislature removed that language in 2012. As § 99-5-37 reads today:

• § 99-5-37(1): When someone is arrested for a domestic violence misdemeanor or aggravated domestic violence, no bail can be set until the person has appeared before a judge of competent jurisdiction. The appearance can be by phone. This doesn't override the right to an initial appearance or preliminary hearing.

• § 99-5-37(2): Upon setting bail, the judge may (not must) impose a holding period of up to 24 hours, measured "from the time of the initial appearance or setting of bail."

So the structure is:

1. Arrest happens.
2. Defendant must appear before a judge before bail is set (no automatic bond at the jail).
3. At the appearance, the judge sets bail.
4. The judge has discretion to impose up to a 24-hour hold from the appearance forward.

There is no mandatory cooling-off period between arrest and the judicial appearance. The pre-2012 24-hour mandatory cooling-off was repealed. Officers who told Judge Prewitt to hold defendants 24 hours before contacting a judge are operating on outdated information.

Practical takeaway for jails and police: contact the judge as soon as practicable after a domestic-violence arrest to set bail. Don't hold the defendant for a fixed period before contacting the judge. The judge can decide, in their discretion, to impose up to a 24-hour hold from the time of appearance.

What this means for you

If you are a Mississippi police officer or jail administrator

The opinion holds there is "no mandatory cooling-off or holding period for domestic violence offenders": the 24-hour cooling-off period was "removed by an amendment in 2012." Under § 99-5-37(1), "no bail shall be granted until the person arrested has appeared before a judge," and that "appearance may be by telephone."

If you are a municipal judge or justice court judge

The opinion holds § 99-5-37(2) "authorizes, but does not require, a holding period of up to twenty-four hours that begins 'from the time of the initial appearance or setting of bail.'" The hold is discretionary and measured from the appearance or bail setting, not from arrest.

If you are a defense attorney representing a domestic-violence defendant

The opinion holds the current statute requires a judicial appearance before bail is set, but imposes no mandatory waiting period. Any holding period is discretionary with the judge and runs only from the initial appearance or setting of bail.

If you are a prosecutor

The opinion confirms the judge "may impose" a holding period of up to 24 hours upon setting bail. It describes this as discretionary and does not address when such a hold should be requested.

Common questions

Q: What did § 99-5-37 used to say?
A: Before the 2012 amendment, the statute authorized a "twenty-four-hour cooling-off period" specifically for domestic violence cases. That language was removed.

Q: What does the current statute provide instead?
A: Per the opinion, § 99-5-37(2) "authorizes, but does not require, a holding period of up to twenty-four hours that begins 'from the time of the initial appearance or setting of bail.'" The opinion does not explain the Legislature's reasons for the 2012 change.

Q: Can the defendant bond out immediately after arrest?
A: No. Under § 99-5-37(1), no bail can be granted until the defendant appears before a judge. So even though there's no mandatory 24-hour cooling-off, the defendant can't post bond without the judge first setting it.

Q: Can the judicial appearance be by phone?
A: Yes. § 99-5-37(1) explicitly allows phone appearance. This addresses the practical reality that domestic-violence arrests often happen at night or on weekends when in-person hearings aren't readily available.

Q: What's the right to an initial appearance or preliminary hearing?
A: § 99-5-37(1) says nothing in the section interferes with the defendant's right to those proceedings under general criminal procedure rules. So the judicial appearance for bail-setting is in addition to (not in place of) other procedural rights.

Q: Can the judge impose a 0-hour hold?
A: Yes, "up to 24" includes zero. The judge has full discretion within the 0-24 hour range.

Q: Does the 24-hour hold apply to felony domestic violence?
A: § 99-5-37(1) covers misdemeanor domestic violence (as defined in § 99-3-7(5)) and aggravated domestic violence (§ 97-3-7(4)). The 24-hour discretionary hold under (2) applies upon setting bail in either category.

Q: What about other holding periods, like for warrants from other jurisdictions?
A: § 99-5-37 addresses domestic violence specifically. Other detention authorities (out-of-state warrants, hold orders, federal detainers) operate under their own rules independently.

Background and statutory framework

The opinion explains that § 99-5-37 "previously authorized a 'twenty-four-hour cooling-off period,'" and that "this language was removed by an amendment in 2012." The current statute sets out a two-step framework:

§ 99-5-37(1): Pre-bail judicial appearance.

In any arrest for (a) a misdemeanor that is an act of domestic violence as defined in Section 99-3-7(5); (b) aggravated domestic violence as defined in Section 97-3-7(4) . . . no bail shall be granted until the person arrested has appeared before a judge of the court of competent jurisdiction. The appearance may be by telephone. Nothing in this section shall be construed to interfere with the defendant's right to an initial appearance or preliminary hearing.

§ 99-5-37(2): Discretionary post-appearance hold.

Upon setting bail, the judge may impose on the arrested person a holding period not to exceed twenty-four (24) hours from the time of the initial appearance or setting of bail.

The statutory chronology:

1. Arrest.
2. Judge contacted (in person or by phone).
3. Judge sets bail.
4. Optional: judge imposes hold up to 24 hours from setting bail.
5. Defendant can post bond at the end of any imposed hold.

The current statute keeps the requirement that no bail be granted until a judge appears (in person or by telephone), but the opinion finds "no mandatory cooling-off or holding period for domestic violence offenders" under it. Any holding period is discretionary and runs from the initial appearance or setting of bail.

Citations and references

Statutes:

• Miss. Code Ann. § 97-3-7(4) (aggravated domestic violence definition)
• Miss. Code Ann. § 99-3-7(5) (misdemeanor domestic violence definition)
• Miss. Code Ann. § 99-5-37 (bail in domestic violence cases; mandatory pre-bail judicial appearance)
• Miss. Code Ann. § 99-5-37(2) (discretionary 24-hour hold from initial appearance or setting of bail)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/M.Prewitt-March-19-2024-Mandatory-Waiting-Period-in-Domestic-Violence-Cases.pdf

Original opinion text

March 19, 2024

The Honorable Michael L. Prewitt
Municipal Judge, Cities of Greenville & Hollandale
Post Office Box 851
Greenville, Mississippi 38702-0851

Re: Mandatory Waiting Period in Domestic Violence Cases

Dear Judge Prewitt:

The Office of the Attorney General has received your request for an official opinion.

Background

In your request, you say that you have had officers tell you that a person must be held in jail for 24 hours on a domestic assault arrest, whether from a current incident or on a warrant, before a judge is to be contacted and the defendant allowed to bond out or be released. It has been your understanding that a judge must be contacted within 24 hours of arrest (not after some waiting period) to set the terms of the defendant's release.

Question Presented

Is there a mandatory waiting period for defendants being held in jail on a domestic violence charge?

Brief Response

No. While Mississippi Code Annotated Section 99-5-37 previously authorized a "twenty-four-hour cooling-off period," this language was removed by an amendment in 2012. Under current law the judge may, upon setting bail, impose a holding period of up to twenty-four hours that starts "from the time of the initial appearance or setting of bail." Id. at (2).

Applicable Law and Discussion

Mississippi Code Annotated Section 99-5-37 provides, in relevant part:

(1) In any arrest for (a) a misdemeanor that is an act of domestic violence as defined in Section 99-3-7(5); (b) aggravated domestic violence as defined in Section 97-3-7(4) . . . no bail shall be granted until the person arrested has appeared before a judge of the court of competent jurisdiction. The appearance may be by telephone. Nothing in this section shall be construed to interfere with the defendant's right to an initial appearance or preliminary hearing.

(2) Upon setting bail, the judge may impose on the arrested person a holding period not to exceed twenty-four (24) hours from the time of the initial appearance or setting of bail.

(emphasis added).

While Section 99-5-37 previously authorized a "twenty-four-hour cooling-off period" specifically, this language was removed by an amendment in 2012. As amended, the statute authorizes, but does not require, a holding period of up to twenty-four hours that begins "from the time of the initial appearance or setting of bail." Id. at (2). We find no mandatory cooling-off or holding period for domestic violence offenders.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General