Can a Mississippi defendant 'sit out' or work off the mandatory $1,000 human trafficking fund assessment in jail?

Plain-English summary

Justice Court Judge Scottie Harrison of Pontotoc County asked the same question that Justice Court Judge Marilyn Reed asked the same day: can a defendant subject to the $1,000 Human Trafficking Fund assessment under § 99-19-75(2) "sit out" or work off the assessment in jail? The AG answered both opinions on March 14, 2024, both saying no.

The reasoning is identical:

1. § 99-19-75 uses mandatory "shall" language. Under Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006), "shall" is mandatory. The judge has no discretion to suspend the assessment. Prior MS AG Op. Lawrence (Apr. 14, 2006) settled that "a judge is without the authority to suspend a mandatory state assessment."

2. State assessments differ from fines, fees, and court costs. Mississippi has three "sit out" statutes that allow defendants to earn jail-time credit toward financial obligations:

   • § 47-1-47 (incarcerated defendant working off fines and costs).
   • § 99-19-20(2) (court can imprison until fines, restitution, or costs are paid, with willfulness and ability-to-pay findings).
   • § 99-19-20.1 (parallel mechanism).

But these statutes specifically address "court-imposed fines, costs, and/or restitution." State-mandated assessments going to specific state funds (here, the Human Trafficking and Commercial Sexual Exploitation Fund) are a different statutory category. The sit-out statutes don't reach them.

3. Result: there is no authority for a judge to allow a defendant to sit out or work off the $1,000 assessment. The assessment must be imposed and collected.

The AG also added the standard housekeeping note: "To the extent that this opinion conflicts with any opinions previously issued by this office, those opinions are modified prospectively to conform herewith."

This opinion and the Reed opinion of the same date are companion rulings on the same question, providing belt-and-suspenders confirmation of the rule for justice court judges across Mississippi.

What this means for you

If you are a Mississippi justice court or municipal judge

The opinion holds "there is no authority for a judge to allow a defendant to 'sit out' or work off the mandatory $1000.00 Human Trafficking and Commercial Sexual Exploitation Fund state assessment imposed under Mississippi Code Annotated Section 99-19-75(2)," and that the assessment "is mandatory and must be imposed and collected."

If you are a defense attorney

The opinion holds the jail-credit ("sit out") statutes (§§ 47-1-47, 99-19-20(2), 99-19-20.1) "deal specifically with court-imposed fines, costs, and/or restitution" and "do not apply to state-mandated assessments," so the assessment cannot be worked off in jail.

If you are a court clerk

The opinion states the § 99-19-75(2) assessment is "deposited into the 'Victims of Human Trafficking and Commercial Sexual Exploitation Fund,'" and that such assessments, "mandated by and remitted to the state, differ from fines, fees, and court costs."

If you are a prosecutor

The opinion reads the statute's "shall be imposed and collected" language as mandatory, "with no judicial discretion on the issue," citing Pitalo v. GPCH-GP.

Common questions

Q: What is the Victims of Human Trafficking and Commercial Sexual Exploitation Fund?
A: Per the statute the opinion quotes, it is the fund "created in Section 2 of this act," into which the § 99-19-75(2) $1,000 assessment is deposited on conviction for any of the enumerated offenses (§§ 97-3-7, 97-3-54.1, 97-3-65, 97-3-95, 97-5-1 et seq., or 97-29-51).

Q: Can the assessment be reduced or waived for indigent defendants?
A: The opinion holds the assessment is mandatory under the statute's "shall" language, "with no judicial discretion on the issue," and restates that "a judge is without the authority to suspend a mandatory state assessment." It does not address an indigency exception.

Q: Why a separate Harrison opinion when Reed covers the same question?
A: Both justice court judges asked the same question on the same date, and the office issued an opinion to each. The Harrison opinion answers only the "sit out" question; the Reed opinion also took (and declined) a second question about post-release nonpayment.

Q: Does this also apply to crimes against minors under subsection (1)?
A: The opinion quotes both subsections. Subsection (1) imposes a $1,000 assessment for the listed crimes against minors, deposited into the Mississippi Children's Trust Fund; the opinion's reasoning rests on the same mandatory "shall be imposed and collected" language used in both subsections.

Background and statutory framework

For full background on § 99-19-75 and the analytical framework, see the Reed opinion of the same date. The key elements are:

§ 99-19-75 imposes mandatory $1,000 state assessments on convictions for enumerated offenses:

• (1): Crimes against minors → Mississippi Children's Trust Fund.
• (2): Domestic violence and other listed offenses → Victims of Human Trafficking and Commercial Sexual Exploitation Fund.

The "shall be imposed and collected" phrasing is mandatory. Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006).

The "sit out" statutes apply only to court-imposed fines, costs, and restitution:

• § 47-1-47: incarcerated defendant work credit.
• § 99-19-20(2): imprisonment until fines, restitution, costs paid (with willfulness and ability-to-pay findings).
• § 99-19-20.1: similar mechanism.

State-mandated assessments are a different statutory category. They go to specific state funds (not court-cost accounts) and are not within the sit-out statutes' textual scope.

The AG's reading is plain-text: the sit-out statutes mention fines, costs, and restitution; they do not mention assessments; therefore they do not authorize sitting out assessments.

The opinion's "modified prospectively" language tidies up any older AG opinions that might have suggested a contrary reading.

Citations and references

Statutes:

• Miss. Code Ann. § 47-1-47 (incarcerated defendant work credit toward fines and costs)
• Miss. Code Ann. § 99-19-20(2) (court discretion to imprison until fines, restitution, costs paid)
• Miss. Code Ann. § 99-19-20.1 (related court authority)
• Miss. Code Ann. § 99-19-75 (state assessments for crimes against persons)
• Miss. Code Ann. § 99-19-75(1) (assessment for crimes against minors)
• Miss. Code Ann. § 99-19-75(2) (assessment for domestic violence and other offenses)

Cases:

• Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006) ("shall" is mandatory, "may" is discretionary)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/03/S.Harrison-March-14-2024-Sitting-Out-Mandatory-Human-Trafficking-Assessment.pdf

Original opinion text

March 14, 2024

The Honorable Scottie Harrison
Justice Court Judge, Pontotoc County
171 Highway 15 North
Pontotoc, Mississippi 38863

Re: "Sitting Out" Mandatory Human Trafficking Assessment

Dear Judge Harrison:

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

Question Presented

Can the mandatory $1000.00 Victims of Human Trafficking and Commercial Sexual Exploitation Fund assessment imposed by the state under Mississippi Code Annotated Section 99-19-75(2) be worked off or "sat out" in jail?

Brief Response

No. There is no authority for a judge to allow a defendant to "sit out" or work off the mandatory $1000.00 Human Trafficking and Commercial Sexual Exploitation Fund state assessment imposed under Mississippi Code Annotated Section 99-19-75(2).

Applicable Law and Discussion

Section 99-19-75, "Assessments for certain crimes against persons; deposits in Children's Trust Fund or Victims of Human Trafficking and Commercial Sexual Exploitation Fund," requires additional assessments to be paid into one of two specific funds when a defendant is found guilty of violating certain code sections:

(1) In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected from each person upon whom a court imposes a fine or other penalty for any violation of Section 97-3-65, 97-5-1 et seq. or 97-37, when committed against a minor, an assessment of One Thousand Dollars ($1,000.00) to be deposited into the Mississippi Children's Trust Fund created in Section 93-21-305, using the procedures described in Section 99-19-73.

(2) In addition to any monetary penalties and any other penalties imposed by law, there shall be imposed and collected from each person upon whom a court imposes a fine or other penalty for any violation of Section 97-3-7, 97-3-54.1, 97-3-65, 97-3-95, 97-5-1 et seq., or 97-29-51 an assessment of One Thousand Dollars ($1,000.00) to be deposited into the "Victims of Human Trafficking and Commercial Sexual Exploitation Fund" created in Section 2 of this act.

(emphasis added). Subsection (2) imposes a $1000.00 assessment to be paid into the Victims of Human Trafficking and Commercial Sexual Exploitation Fund ("Human Trafficking Fund"). The use of the word "shall" dictates that these assessments be imposed and collected with no judicial discretion on the issue. Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929 (Miss. 2006) ("Simply stated, 'shall' is mandatory, while 'may' is discretionary."). While the term assessment is not defined in the code, Merriam-Webster defines assessment as "an amount that a person is officially required to pay." Assessment, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/assessment (last visited March 13, 2024). Assessments, mandated by and remitted to the state, differ from fines, fees, and court costs. As previously stated by this office in reference to Section 99-19-75(1), "a judge is without the authority to suspend a mandatory state assessment." MS AG Op., Lawrence at *1 (Apr. 14, 2006) (citing MS AG Op., Knight (Aug. 31, 2001) and MS AG Op., Peterson (Oct. 11, 1996)).

You ask whether a defendant guilty of one of the enumerated offenses, and "upon whom a court imposes a fine or other penalty," could "sit out" or work off the assessment. Miss. Code Ann. § 99-19-75(2). We understand "sit out" means to place the defendant in jail to earn credit towards paying off a court-imposed debt such as a fine or court costs. While no statute contemplates that exact scenario, three statutes address a defendant's ability to get credit toward fines and costs measured by time incarcerated as an alternative to direct payment. Section 47-1-47 addresses an incarcerated defendant's ability to work and receive credit towards fines and costs until they are paid. Sections 99-19-20(2) and 99-19-20.1 address a court's discretion to imprison a defendant until a court-imposed fine, restitution, or court costs are paid, provided the court has found that the defendant is financially able to pay, and non-payment is willful. Notably, all of the above Sections deal specifically with court-imposed fines, costs, and/or restitution. They do not apply to state-mandated assessments.

In sum, it is the opinion of this office that there is no authority for a judge to allow a defendant to "sit out" or work off the mandatory $1000.00 Human Trafficking state assessment imposed under Mississippi Code Annotated Section 99-19-75(2). The state assessment is mandatory and must be imposed and collected. To the extent that this opinion conflicts with any opinions previously issued by this office, those opinions are modified prospectively to conform herewith.

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/ Misty Monroe
Misty Monroe
Assistant Attorney General