Can a Mississippi defendant in a domestic violence case 'sit out' the mandatory $1000 human trafficking assessment in jail?

Plain-English summary

When a Mississippi defendant is convicted of domestic violence under § 97-3-7, Miss. Code Ann. § 99-19-75(2) requires the court to also impose a $1000 assessment that goes into the Victims of Human Trafficking and Commercial Sexual Exploitation Fund. Justice Court Judge Marilyn Reed asked: can a defendant who can't pay just "sit out" that $1000 in jail, getting credit toward the assessment for time served?

The AG said no, on multiple statutory grounds.

§ 99-19-75 uses mandatory "shall" language. Subsections (1) and (2) say "there shall be imposed and collected" the $1000 assessment. Under Pitalo v. GPCH-GP, Inc., 933 So. 2d 927 (Miss. 2006), "shall" is mandatory and "may" is discretionary. So the assessment must be imposed and collected; the judge has no discretion to suspend or waive it. Prior MS AG Op., Lawrence (Apr. 14, 2006), already opined that "a judge is without the authority to suspend a mandatory state assessment."

Assessments are different from fines and costs. Mississippi has separate statutes that allow defendants to earn credit through jail time toward court-imposed financial obligations:
- § 47-1-47 (incarcerated defendant working off fines and costs).
- § 99-19-20(2) (court discretion to imprison until court-imposed fine, restitution, or costs are paid).
- § 99-19-20.1 (similar mechanism).

But these statutes apply specifically to court-imposed fines, costs, and restitution. State-mandated assessments (which go into specific state funds, not into general court-cost accounts) are a different category. The "sit out" statutes don't reach them.

No statute authorizes sitting out a § 99-19-75 assessment. The AG searched and found none. So there's no authority anywhere for a judge to allow a defendant to convert the $1000 assessment into jail time.

Question 2 (what to do when a defendant out of jail refuses to pay): The AG declined this question. It's a mixed question of fact and law (depends on the specific defendant's circumstances) and § 7-5-25 limits the AG to prospective questions of state law. Practical mechanisms (collection actions, contempt, additional sanctions) require case-by-case judicial decision-making.

The AG also noted: "To the extent that this opinion conflicts with any opinions previously issued by this office, those opinions are modified prospectively to conform herewith." That's a tidy way of saying that any old opinions suggesting the assessment could be sat out are now superseded.

What this means for you

If you are a Mississippi judge sentencing a domestic violence defendant

You must impose the $1000 assessment under § 99-19-75(2). You cannot suspend it, waive it, or allow the defendant to sit it out in jail. The assessment is independent of any fines or court costs you may also impose.

If you are a defense attorney representing an indigent domestic violence defendant

Your client cannot avoid the $1000 assessment by serving extra jail time. Plan for collection mechanics: payment plans, periodic review hearings, civil collection actions if your client gets out without paying. The "sit out" mechanism that works for fines and costs doesn't apply here.

If you are a court clerk or court administrator

The $1000 assessment goes into the Victims of Human Trafficking and Commercial Sexual Exploitation Fund (created in § 2 of the act establishing § 99-19-75(2)). Track these collections separately from fines and costs.

If you are a prosecutor

When recommending sentences in domestic violence cases, remember that the $1000 assessment is automatic and mandatory. You don't need to argue for it; the court must impose it. But you may need to address how the assessment will be paid, especially for indigent defendants.

If you are a domestic violence defendant

Even if you serve every day of your sentence, you still owe the $1000 assessment. Plan to pay it through whatever means your circumstances allow. Failure to pay can lead to additional collection actions, but extra jail time will not credit toward the assessment.

If you are a victim or victim advocate

Mississippi's Victims of Human Trafficking and Commercial Sexual Exploitation Fund is funded in part through these assessments. The fund supports victim services. The mandatory and non-suspendable nature of the assessment means it's a stable funding source.

Common questions

Q: What is § 99-19-75?
A: A Mississippi statute that imposes additional state assessments on defendants convicted of certain crimes:
- Subsection (1): $1000 assessment when crimes against minors (§§ 97-3-65, 97-5-1 et seq., 97-37) are committed against a minor. Goes to the Mississippi Children's Trust Fund.
- Subsection (2): $1000 assessment for certain crimes including domestic violence (§ 97-3-7). Goes to the Victims of Human Trafficking and Commercial Sexual Exploitation Fund.

Q: What is "sitting out" a fine or cost?
A: A practice where a defendant who can't pay a court-imposed financial obligation works it off through extra jail time at a statutory daily credit rate. § 47-1-47 and § 99-19-20.1 are the main vehicles in Mississippi.

Q: Why can't this work for the § 99-19-75 assessment?
A: Because the "sit out" statutes apply specifically to court-imposed fines, costs, and restitution. State-mandated assessments going to specific state funds are a different category, and the Legislature didn't include them in the sit-out statutes.

Q: Can the assessment be reduced or waived for indigent defendants?
A: Not by the judge. The Legislature could amend the statute to provide for waivers, but the current text uses "shall" without discretion language.

Q: Can the assessment be reduced through plea negotiations?
A: A plea reducing the underlying charge to one not in § 99-19-75(2) (e.g., a non-domestic-violence offense) would avoid triggering the assessment. But a plea to a covered offense doesn't allow reducing the assessment itself; the $1000 is a flat amount triggered by the conviction.

Q: What happens if a defendant out of jail refuses to pay?
A: This is the question the AG declined to answer. Available collection options include civil collection, contempt proceedings, payment plans, and (potentially) revocation of probation if the defendant is on probation. Each requires judicial action on case-specific facts.

Q: What about a defendant who genuinely can't pay?
A: There's no built-in indigency exception. Bearden v. Georgia and related federal due-process cases generally limit incarceration solely for failure to pay when the defendant is indigent. So while the assessment remains owed, ongoing incarceration to enforce its payment may run into constitutional limits if the defendant lacks ability to pay. Consult counsel.

Q: How does this interact with restitution?
A: Restitution is owed to the victim and is separate from the assessment, which goes to a state fund. Both can be ordered. Restitution can be subject to sit-out under § 99-19-20.1 in some configurations; the assessment cannot.

Background and statutory framework

Mississippi has built up a layered system of financial obligations attached to criminal convictions:

• Fines: Punishment, payable to the state or county.
• Court costs: Recoupment of the costs of administering the case.
• Restitution: Compensation to the victim for direct losses.
• State assessments: Additional charges directed to specific state funds for designated purposes (e.g., crime victim compensation, the Children's Trust Fund, the Human Trafficking Fund).

§ 99-19-75 is part of the assessments category. The text:

(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.

The "shall be imposed and collected" phrasing is mandatory.

§ 47-1-47: Allows incarcerated defendants to work and receive credit toward fines and costs until paid.

§ 99-19-20(2): Lets a court imprison a defendant until court-imposed fines, restitution, or costs are paid, provided the court has found the defendant financially able to pay and that nonpayment is willful.

§ 99-19-20.1: Provides a parallel mechanism with detailed procedures.

These three "sit out" provisions all reference fines, costs, and restitution as their objects. None reaches state-mandated assessments under § 99-19-75. The AG's reading is plain text: the listed statutes don't include § 99-19-75, so they don't authorize sitting out § 99-19-75 assessments.

The AG's "modified prospectively" language is a tidy housekeeping move. Some older AG opinions might have been read to allow assessment sit-outs in narrow circumstances; the Reed opinion supersedes any such readings going forward.

Citations and references

Statutes:
- Miss. Code Ann. § 7-5-25 (AG opinion authority limited to prospective state-law questions)
- Miss. Code Ann. § 47-1-47 (incarcerated defendant work credit toward fines and costs)
- Miss. Code Ann. § 97-3-7 (assault and domestic violence)
- Miss. Code Ann. § 99-19-20(2) (court discretion to imprison until fines, restitution, or costs paid)
- Miss. Code Ann. § 99-19-20.1 (related court authority)
- Miss. Code Ann. § 99-19-75 (state assessments for crimes against persons; deposits in Children's Trust Fund or Human Trafficking Fund)
- Miss. Code Ann. § 99-19-75(1) (assessment for crimes against minors)
- Miss. Code Ann. § 99-19-75(2) (assessment for domestic violence and certain 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/M.Reed-March-14-2024-Sitting-Out-Mandatory-Human-Trafficking-Assessment.pdf

Original opinion text

March 14, 2024

The Honorable Marilyn S. Reed
Justice Court Judge, Lee County
Post Office Box 108
Tupelo, Mississippi 38804

Re: "Sitting Out" Mandatory Human Trafficking Assessment

Dear Judge Reed:

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

Questions Presented

1. Can a defendant in a misdemeanor domestic violence charge/conviction "sit out" the mandatory $1000.00 assessment in jail?

2. If not, what can judges do once a defendant is out of jail and refuses to pay the assessment?

Brief Response

1. There is no authority for a judge to allow a defendant to "sit out" the mandatory $1000.00 state assessment imposed under Mississippi Code Annotated Section 99-19-75.

2. This office cannot make factual determinations, and because this question is a mixed question of fact and law, we are unable to respond by official opinion.

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). The charge of domestic violence falls under Section 97-3-7, so the defendant would be required to pay the $1000.00 assessment 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 domestic violence — and "upon whom a court imposes a fine or other penalty" — could "sit out" 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.

Your second question is a mixed question of fact and law, and as this office can only opine on prospective questions of state law, we must decline to respond by official opinion. Miss. Code Ann. § 7-5-25.

In sum, it is the opinion of this office that there is no authority for a judge to allow a defendant to "sit out" the mandatory $1000.00 state assessment imposed under Mississippi Code Annotated Section 99-19-75. 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