Can a Mississippi municipal court judge wipe out unpaid fines if a defendant finishes a GED or workforce class?

Plain-English summary

A Hattiesburg municipal court judge wanted to set up an arrangement with a local junior college: defendants with unpaid fines could finish a GED or workforce-development class and get their fines and costs wiped out. The judge asked the AG whether that was lawful.

The AG confirmed the judge's statutory power to suspend misdemeanor fines, but did not decide whether the proposed class program or any particular condition is lawful. Miss. Code Ann. § 21-23-7(5) lets a municipal judge, after the original sentence is in place, "suspend sentence and . . . suspend the execution of a sentence, or any part thereof, on such terms as may be imposed by the municipal judge." Two conditions attach: the original judge had to have had the power to suspend at the time of sentencing, and the conviction either was not appealed or any appeal was voluntarily dismissed.

The opinion distinguishes suspension under Section 21-23-7(5) from amnesty or forgiveness of old fines, which it calls an unlawful donation under Mississippi Constitution Article 4 § 66. It expressly leaves any related program or condition unanswered.

Two practical limits. First, the practice is limited to misdemeanors. Felony cases are out. Second, even when fines are suspended, the state assessment under § 99-19-73(9) survives. That assessment "may not be suspended or reduced by the court." The state's cut stays.

What this means for you

For Mississippi municipal court judges

Under the opinion, a municipal judge may suspend (not forgive) fines in misdemeanor cases "on such terms as may be imposed by the municipal judge," so long as the two conditions in Section 21-23-7(5) are met: the sentencing judge was authorized to suspend when the sentence was imposed, and the conviction was not appealed or any appeal was voluntarily dismissed. The opinion stresses the suspend-versus-forgive line: the court "cannot grant amnesty or forgive or discount old fines" because that would be an unlawful donation under Article 4, Section 66, but "suspending a portion of the fine which is authorized" under the statute is allowed. The AG "offer[s] no opinion on any related program or condition" such as the proposed classes.

For city attorneys and prosecutors

The opinion's distinction is between suspension and forgiveness: an order that "forgives" or grants "amnesty" for an adjudicated fine runs into the Article 4, Section 66 donation prohibition, while a suspension under Section 21-23-7(5) on stated terms does not. The opinion also notes that suspending a fine does not reach the state assessment: under Section 99-19-73(9), "[n]o state assessment imposed under the provisions of this section may be suspended or reduced by the court."

For defendants with unpaid fines

The opinion describes a mechanism a municipal court may use, at the court's discretion; it is not a guarantee. It applies only to misdemeanors, and even a suspended fine leaves the state assessment owed. If a conviction has been appealed and the appeal is still pending, Section 21-23-7(5) does not authorize suspension until the appeal is voluntarily dismissed.

Common questions

Q: Can a municipal judge forgive a defendant's unpaid fines if they complete a GED or workforce class? A: The judge may suspend misdemeanor fines under Section 21-23-7(5), but the court "cannot grant amnesty or forgive or discount old fines." The AG expressly offered no opinion on whether the proposed GED or workforce class may be a condition of suspension.

Q: Does this work for felony cases?
A: No. The opinion limits the authority to misdemeanors, the cases a municipal court handles under Section 21-23-7, and "offer[s] no opinion on any related program."

Q: What is the state assessment that cannot be suspended? A: Under Section 99-19-73(9), if a fine is suspended in whole or part, that suspension "shall not affect the state assessment," and "[n]o state assessment imposed under the provisions of this section may be suspended or reduced by the court." Even when the underlying fine is suspended, the assessment is owed.

Q: Can the judge use this to clear out a backlog of years-old unpaid fines? A: Only case by case, and only as a suspension. The opinion cites the older Barton and Nowak opinions that the court "cannot grant amnesty or forgive or discount old fines"; what Section 21-23-7(5) authorizes is suspension on conditions, subject to the appeal condition and the original authority to suspend.

Q: What conditions can a judge attach?
A: The statute allows "such terms as may be imposed by the municipal judge." The opinion confirms only the legal mechanism and "offer[s] no opinion on any related program or condition a municipal judge might contemplate," so it does not endorse any particular condition.

Background and statutory framework

Mississippi's donation prohibition (Article 4, Section 66) restricts the state and its political subdivisions from giving away public money or value, so a court that simply "forgives" an adjudicated fine runs into that prohibition. Section 21-23-7(5) gives a municipal court authority, after original sentencing, to suspend the execution of a misdemeanor sentence or any part of it on the court's terms, subject to the two conditions in the statute. The opinion confirms that power while reserving judgment on any proposed program or condition.

Section 99-19-73(9) is separate. It provides that if a fine or other penalty is suspended in whole or in part, the suspension "shall not affect the state assessment under this section," and that no state assessment imposed under the section "may be suspended or reduced by the court."

Citations

• Miss. Code Ann. § 21-23-7(5) (municipal judge authority to suspend sentence post-imposition)
• Miss. Code Ann. § 99-19-73(9) (state assessments not subject to suspension or reduction)
• Miss. Const. Art. 4, § 66 (prohibition on donations)
• MS AG Op., Nowak (Aug. 26, 2011) (suspension allowed; amnesty not allowed)
• MS AG Op., Barton (Mar. 19, 2010) (court cannot forgive or discount old fines)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/08/W.Curry-August-25-2022-Forgiveness-of-Fines-and-Costs.pdf

Original opinion text

August 25, 2022

The Honorable Wes Curry
Municipal Court Judge, City of Hattiesburg
200 West Pine
Hattiesburg, Mississippi 39401
Re:

Forgiveness of Fines and Costs

Dear Judge Curry:
The Office of the Attorney General has received your request for an official opinion. Background

You provide in your request that your municipal court has defendants with substantial amounts of unpaid fines and costs, many of whom are simply unable to pay the fines and costs and/or quit paying them because they are unable to find consistent employment. You say that your court has been in discussions with a local junior college as to whether it could provide free classes, such as GED and workforce development classes, to some of the defendants in your court in order to have their fines and costs suspended upon completion. You provide that you would do this by setting a defendant's case for review at a hearing, and at the hearing, you would amend the sentence so that the fines and costs may be forgiven on the condition that they complete such a class. Further, there would be policies and procedures, recorded in the clerk's office for public review, setting out the guidelines of what cases would qualify for the program. Question Presented May a municipal court suspend or forgive fines and costs previously adjudicated by the court on the condition that the defendant attend and complete a GED class or workforce development class? Brief Response A municipal judge is authorized to suspend fines in misdemeanor cases upon such terms as may be set by the court.

Applicable Law and Discussion
Mississippi Code Annotated Section 21-23-7(5) provides, in relevant part: Subsequent to original sentencing, the municipal judge, in misdemeanor cases, is hereby authorized to suspend sentence and to suspend the execution of a sentence, or any part thereof, on such terms as may be imposed by the municipal judge, if (a) the judge or his or her predecessor was authorized to order such suspension when the sentence was originally imposed; and (b) such conviction (i) has not been appealed; or (ii) has been appealed and the appeal has been voluntarily dismissed. This office has previously concluded that subsequent to original sentencing, Section 21-23-7(5) authorizes the municipal judge to suspend fines on such terms as may be imposed by the municipal judge. MS AG Ops., Nowak at 1 (Aug. 26, 2011) and Barton at 1 (Mar. 19, 2010). "As stated in Barton the court cannot grant amnesty or forgive or discount old fines as this would amount to an unlawful donation pursuant to Article 4 Section 66 of the Mississippi Constitution. However, by following the provisions of Section 21-23-7 (5) the court is suspending a portion of the fine which is authorized." Nowak at *1. Therefore, so long as the cases in which the municipal judge seeks to suspend the fines are limited to those that involve misdemeanors and those that comply with the additional conditions provided in Section 21-23-7(5), it is our opinion that a municipal judge is authorized to suspend the fines at the court's discretion and upon its imposed terms. We limit this opinion to the ability of the municipal judge to suspend fines in accordance with Section 21-23-7(5) and offer no opinion on any related program or condition a municipal judge might contemplate. Please note, however, that Section 99-19-73(9) further provides, "[i]f a fine or other penalty imposed is suspended, in whole or in part, such suspension shall not affect the state assessment under this section. No state assessment imposed under the provisions of this section may be suspended or reduced by the court." 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