MS 2024-03-M-Prewitt-March-19-2024-Mandatory-Waiting-Period-in-Domestic-Violence-Cases March 19, 2024

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

Short answer: No. The 'twenty-four-hour cooling-off period' previously authorized in Miss. Code Ann. § 99-5-37 was removed by a 2012 amendment. Under the current law, a judge may, upon setting bail, impose a holding period of up to 24 hours, but the period starts 'from the time of the initial appearance or setting of bail,' not from arrest. The holding period is discretionary, not mandatory.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

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 arresting on a domestic-violence charge

You don't have to hold the defendant a fixed period before contacting a judge. Contact the judge promptly to set bail. The judge will decide whether to impose a 24-hour hold from the appearance forward.

If you are a jail administrator

Update your policies. Pre-2012 procedures may still describe a 24-hour mandatory hold; that requirement no longer exists. Bail cannot be posted at the jail without a judge first appearing (in person or by phone), but no specific delay before judicial appearance is required.

If you are a municipal judge or justice court judge

You retain discretion under § 99-5-37(2) to impose up to a 24-hour hold after setting bail. Use that discretion based on the specific facts (severity of incident, victim safety, defendant's history). The hold runs from the time of initial appearance or bail setting, not from arrest.

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

Your client should be brought before a judge as soon as practicable after arrest, even if by phone. If your client is being held for a fixed period without judicial appearance, that's a violation of the current statute. Push for prompt appearance and bail-setting.

If you are a victim or victim advocate

The judge has discretion to impose up to a 24-hour hold after bail is set, which gives time for safety planning. Ask the prosecutor and victim advocate about whether a hold should be requested. Mississippi also has separate domestic-abuse protection orders (§§ 93-21-1 et seq.) that operate independently of bail.

If you are a prosecutor

When opposing bail or seeking conditions in domestic-violence cases, you can request the judge use the discretionary 24-hour hold. Connect the request to specific safety concerns. The hold isn't automatic; the judge needs to make a discretionary decision.

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: Why was the cooling-off period removed?
A: The Legislature shifted to a more flexible model: judicial discretion, with the option to impose up to 24 hours of holding after bail is set (not before judicial appearance). The change reduced jail crowding and emphasized judicial decision-making rather than automatic delays.

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

Mississippi domestic violence law has evolved significantly. Earlier statutes set a mandatory 24-hour cooling-off period to give victims time to seek protection orders and ensure the defendant's first night was in jail rather than back home.

The 2012 amendment to § 99-5-37 removed the mandatory delay and replaced it with 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 legal architecture preserves the protective purpose (no automatic release after arrest) while removing the mandatory wait period that bottlenecked jails.

The AG opinion is a clean piece of statutory updating. Officers and other actors operating on pre-2012 information were misinforming Judge Prewitt; the AG corrected the record. The opinion's value is mostly informational, getting the field practice aligned with the current statute.

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

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