failure to appear

Punishments for FTAs originated out of courts' contempt powers. The Judiciary Act of 1789, the first federal framework governing pretrial detention, did not single out FTAs for punishment but decreed that there should be sanctions for "all contempts of authority".{{Cite journal |last=Murphy |first=Erin |date=2009 |title=Manufacturing Crime: Process, Pretext, and Criminal Justice |url=https://deliverypdf.ssrn.com/delivery.php?ID=867004085082103115104107110075067126125005064079075023078069075018008084011096119104118012027123051028125125113082091108019083053002058023017127117127096006021101067085066084113094120093024126124070013010069084075006002125093100085031080102124074007&EXT=pdf&INDEX=TRUE |journal=Georgetown Law Journal |volume=97 |pages=17 |via=SSRN}}[https://avalon.law.yale.edu/18th_century/judiciary_act.asp Judiciary Act], 1 Stat. 73, § 17 (1789). Specific penalties for FTAs emerged on the heels of the federal government's campaign to prosecute Communist leaders under the Smith Act of 1940,[https://law.justia.com/cases/federal/appellate-courts/F2/346/875/445737/ United States v. Hall], 346 F.2d 875, 880 (2d Cir. 1965). which made it a crime to "knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States".Smith Act of 1940, [https://loveman.sdsu.edu/docs/1940AlienRegistrationAct.pdf 54 Stat. 670] (1940). After the Supreme Court affirmed the convictions of eleven Communist leaders under the Smith Act in Dennis v. United States, four of the defendants fled in July 1951.Daniel J. Freed & Patricia M. Wald, Nat’l Conf. on Bail & Crim. Just., [https://www.ojp.gov/pdffiles1/Photocopy/333NCJRS.pdf Bail in the United States: 1964] 52 (1964). All four leaders either turned themselves in or were later apprehended, but their flight would inspire Congress to enact punishments for FTAs three years later:

The Federal bail jumping statute was first enacted in 1954 to fill the void in the criminal law highlighted by the conduct of fleeing fugitives who were leaders of the Communist Party. The only available penalties, at that time, were forfeiture of money and contempt proceedings. In the absence of an indictable offense of bail jumping, defendants were able to buy their freedom by forfeiting their bonds and taking the risk that they could go unapprehended. Even if apprehended, many defendants could hide for periods long enough for the government's case, especially for major offenses, to grow weaker because of the unavailability of witnesses, memory lapses, and the like, and thereby defeat the government's prosecutive efforts. They would then be subject only to the criminal contempt charge, the sentence for which was usually of considerably less gravity than for the original offense. These were the reasons that led to the original Federal bail jumping statute of 1954.S. Rep. No. [https://books.google.com/books?id=0agvAAAAIAAJ&pg=RA30-PA57 98-108], at 57 (1983).

The Bail Reform Act of 1966, one of the first significant pieces of the federal bail legislation, made "willfully fail[ing] to appear before any court or judicial officer as required" punishable by up to five years in prison and a $5,000 fine.[https://www.govinfo.gov/content/pkg/STATUTE-80/pdf/STATUTE-80-Pg214.pdf#page=1 Bail Reform Act of 1966], Pub. L. No. 89-465, § 3150, 80 Stat. 216 (1966). In 1984, Congress increased the sanctions for FTAs in federal court.{{Cite journal |last=Murphy |first=Erin |date=2009 |title=Manufacturing Crime: Process, Pretext, and Criminal Justice |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1279681 |journal=Georgetown Law Review |volume=97 |pages=18 |ssrn=1279681 |via=SSRN}} In early versions of the bill, lawmakers expressed their resolve to "deter those who would obstruct law enforcement by failing to appear for trial or other judicial appearances and to punish those who indeed fail to appear". Lawmakers saw heightening the penalties for FTAs "as a means of enhancing the effectiveness of the bail jumping offense as a deterrent to flight."S. Rep. No. [https://books.google.com/books?id=0agvAAAAIAAJ&pg=RA30-PA61 98-108], at 61 (1983).

Today, a defendant who "fails to appear before a [federal] court as required by the conditions of release" or "fails to surrender for service of sentence pursuant to a court order" remains subject to criminal sanctions.18 U.S.C. § [https://www.law.cornell.edu/uscode/text/18/3146 3146]. A court will use the following scheme to determine a defendant's punishment:USSG [http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2j16 §2J1.6]

A defendant can present an affirmative defense that "uncontrollable circumstances prevented" their appearance. To make this claim successfully, the defendant must not have contributed to the uncontrollable circumstances and must have "appeared or surrendered as soon as such circumstances ceased to exist".

An "uncontrollable circumstance" can either be physical or mental, the latter of which courts refer to as "duress".[https://law.justia.com/cases/federal/appellate-courts/F3/40/9/507779/ United States v. Veilleux], 40 F.3d 9, 10 (1st Cir. 1994). Not all mental pressures satisfy the uncontrollable circumstance requirement; courts have held that only something as serious as threats of significant bodily harm or death can excuse an FTA. The prospect of prosecutorial reprisal, fear of harassment, and loss of faith in the criminal justice system generally do not amount to uncontrollable duress.[https://casetext.com/case/us-v-kinsella-6 United States v. Kinsella], 530 F. Supp. 2d 356, 362 (D. Me. 2008). Courts have dismissed claims based on fears of deportation[https://law.justia.com/cases/federal/appellate-courts/F2/814/73/336027/ United States v. Odufowora], 814 F.2d 73, 75 (1st Cir. 1987). and a defendant's desire "to make a political statement or engage in protest activity".[https://law.justia.com/cases/federal/appellate-courts/F3/51/861/617558/ United States v. Springer], 51 F.3d 861, 868 (9th Cir. 1995). The legislative history for the federal statute indicates that the affirmative defense should only apply in extreme circumstances: "for example, a person is recuperating from a heart attack and to leave his bed would imperil his life, or, after he had made careful plans for transportation to the court house, his vehicle breaks down or unexpected weather conditions bring traffic to a halt."S. Rep. No. [https://books.google.com/books?id=JbIvAAAAIAAJ&pg=PA32 98-227], at 32 (1983).

All fifty states have implemented statutes penalizing FTAs, which several state statutes call "bail jumping" in their official codes.Ala. Code § [https://law.justia.com/codes/alabama/2021/title-13a/chapter-10/article-2/section-13a-10-39/ 13A-10-39] (2021).Ga. Code § [https://law.justia.com/codes/georgia/2020/title-16/chapter-10/article-3/section-16-10-51/ 16-10-51] (2020).Ky. Rev. Stat. § [https://law.justia.com/codes/kentucky/2021/chapter-520/section-520-070/ 520.070] (2021).La. Rev. Stat. § [https://law.justia.com/codes/louisiana/2021/revised-statutes/title-14/rs-110-1/ 14:110.1] (2021).N.Y. Penal Law § [https://law.justia.com/codes/new-york/2021/pen/part-3/title-l/article-215/215-55/ 215.55] (2021).Wash. Rev. Code § [https://law.justia.com/codes/washington/2021/title-9a/chapter-9a-76/section-9a-76-170/ 9A.76.170] (2021). The District of Columbia and all states besides Mississippi make FTAs the basis of additional criminal charges.{{Cite web |date=February 25, 2022 |title=Statutory Responses for Failure to Appear (Statutory Summary) |url=https://www.ncsl.org/research/civil-and-criminal-justice/statutory-responses-for-failure-to-appear.aspx |access-date= |website=National Conference of State Legislatures}} For example, an FTA can qualify as a misdemeanor or felony in Idaho depending on the underlying offense:

A person set at liberty by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place, commits a misdemeanor if, without lawful excuse, he fails to appear at that time and place. The offense constitutes a felony where the required appearance was to answer to a charge of felony, or for disposition of any such charge, and the actor took flight or went into hiding to avoid apprehension, trial or punishment. This section does not apply to obligations to appear incident to release under suspended sentence or on probation or parole.Idaho Code § [https://law.justia.com/codes/idaho/2021/title-18/chapter-74/section-18-7401/ 18-7401] (2021).

At least forty states impose a driver's license penalty for FTAs, often suspending an individual's license until the person appears in court. These laws generally apply when the FTA occurs in traffic court. In Missouri, a "resident charged with a moving traffic violation" will have their license automatically suspended for failing to appear in court when required.Mo. Rev. Stat. § [https://law.justia.com/codes/missouri/2021/title-xix/chapter-302/section-302-341/ 302.341] (2021). At least seven states authorize driver's license suspensions for reasons unrelated to traffic court. Other license-related punishments include "authorized vehicle immobilization, liens and mandatory delinquency [and] reinstatement fees".

An FTA will often follow a defendant in future proceedings. When deciding whether to release someone pretrial, a judge must usually ask whether a defendant is likely to appear for trial if released and whether the defendant would pose a danger to the community.{{Cite journal |last1=Baradaran |first1=Shima |last2=McIntyre |first2=Frank L. |date=2012 |title=Predicting Violence |url=http://texaslawreview.org/wp-content/uploads/2015/08/Baradaran-McIntyre-90-TLR-497.pdf |journal=Texas Law Review |volume=90 |pages=499 |doi= |issn=}} A defendant's record of prior court attendance is one of the primary factors that a judge looks to when determining whether to grant pretrial release.{{Cite journal |last=Baradaran Baughman |first=Shima |date=2020 |title=Dividing Bail Reform |url=https://ilr.law.uiowa.edu/assets/Uploads/ILR-105-3-Baughman-1-v5.pdf |journal=Iowa Law Review |volume=105 |pages=988}} Having a single FTA can lead courts to refuse to release defendants on their own recognizance or let them post bail.{{Cite web |last1=Lo |first1=Puck |last2=Corey |first2=Ethan |date=January 9, 2019 |title=The 'Failure to Appear' Fallacy |url=https://theappeal.org/the-failure-to-appear-fallacy/ |access-date= |website=The Appeal |language=en}} Some courts rely on risk-assessment tools, which use algorithms to predict the likelihood that a defendant will not appear; a prior FTA, especially a recent one, significantly slants the algorithm toward deeming the defendant high-risk.{{Cite journal |last=Gouldin |first=Lauryn P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=720}}

Critics argue that policymakers define "failure to appear" too broadly, conflating people who intentionally flee the jurisdiction with those who miss their court dates due to forgetfulness or logistical difficulties.{{Cite journal |last=Gouldin |first=Lauren P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=687}} Risk-assessment tools tend to treat all FTAs the same when calculating a defendant's risk score.{{Cite journal |last=Gouldin |first=Lauryn P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=684}} One scholar has proposed breaking FTAs into three categories: "true flight" (intentionally fleeing the area); local absconding (remaining in the jurisdiction but refusing to come to court even if reminded); and low-cost non-appearance (failing to appear for reasons besides avoiding justice).{{Cite journal |last=Gouldin |first=Lauryn P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=683}} Critics say these types of FTAs may warrant different interventions.

Scholars, activists, and practitioners have criticized federal and state laws for operating on the mistaken assumption that most FTAs reflect a conscious decision to abscond.{{Cite journal |last1=Fishbane |first1=Alissa |last2=Ouss |first2=Aurelie |last3=Shah |first3=Anuj K. |date=2020 |title=Behavioral Nudges Reduce Failure to Appear for Court |url=https://www.ideas42.org/wp-content/uploads/2020/10/Behavioral-nudges-reduce-failure-to-appear-for-court_Science.full_.pdf |journal=Science |language=en |volume=370 |issue= 6517|pages=1 |doi= 10.1126/science.abb6591|pmid=33033154 |s2cid=222235406 |issn= |via=Ideas42}} Critics believe most FTAs are the product of forgetfulness or logistical difficulties—and that, if given another opportunity, a defendant will appear when requested. They note that a single legal proceeding can span several years and consist of multiple court dates; due to backlogs in some courts, defendants may wait all day for their hearings only for a judge to impose a delay.{{Cite news |last= |first= |date=May 11, 2016 |title=A Nightmare Court, Worthy of Dickens |language=en-US |work=The New York Times |url=https://www.nytimes.com/2016/05/12/opinion/a-nightmare-court-worthy-of-dickens.html |access-date= |issn=0362-4331}} Defendants who must go before a judge regularly can confuse or forget their court dates.{{Cite journal |last=Gouldin |first=Lauryn P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=730}}{{Cite web |last1=Cook |first1=Brice |last2=Diop |first2=Binta Zahra |last3=Fishbane |first3=Alissa |last4=Hayes |first4=Jonathan |last5=Ouss |first5=Aurelie |last6=Shah |first6=Anuj |date=January 2018 |title=Using Behavioral Science to Improve Criminal Justice Outcomes: Preventing Failures to Appear in Court |url=https://www.ideas42.org/wp-content/uploads/2018/03/Using-Behavioral-Science-to-Improve-Criminal-Justice-Outcomes.pdf |website=ideas42}} Jurisdictions nationwide have reduced FTA rates by reminding people of upcoming court hearings.{{Cite journal |last=Baradaran Baughman |first=Shima |date=2020 |title=Dividing Bail Reform |url=https://ilr.law.uiowa.edu/print/volume-105-issue-3/dividing-bail-reform/ |journal=Iowa Law Review |volume=105 |pages=987}} In New York, an effort to redesign court summons forms and notify people of their court dates using text messages reduced FTAs by 13% and 21%, respectively. These interventions resulted in an estimated 30,000 fewer warrants issued over three years.{{Cite journal |last1=Fishbane |first1=Alissa |last2=Ouss |first2=Aurelie |last3=Shah |first3=Anuj K. |date=2020 |title=Behavioral Nudges Reduce Failures to Appear in Court |url=https://www.ideas42.org/wp-content/uploads/2020/10/Behavioral-nudges-reduce-failure-to-appear-for-court_Science.full_.pdf |journal=Science |volume=370 |issue=6517 |pages=6 |doi=10.1126/science.abb6591 |pmid=33033154 |s2cid=222235406 |via=Ideas42}}

Critics note that attending court can be particularly onerous for low-income individuals. Studies have documented a lack of access to transportation and childcare as two factors driving FTAs. Defendants may struggle to make their court dates due to conflicts with their work, as many courts are only open during business hours. Researchers have confirmed a positive correlation between indigence and FTAs across racial and gender demographics.{{Cite journal |last1=Zettler |first1=Haley R. |last2=Morris |first2=Robert G. |date=2015 |title=An Exploratory Assessment of Race and Gender-Specific Predictors of Failure to Appear in Court among Defendants Released via a Pretrial Services Agency |url=https://www.researchgate.net/publication/276133329 |journal=Criminal Justice Review |volume=40 |issue=4 |pages=426|doi=10.1177/0734016815583350 |s2cid=145692540 }} They speculate that the logistical challenges and financial burdens associated with court attendance drove the disparities observed in their results. Advocates have called for transportation assistance and childcare support instead of criminal sanctions to address FTAs.{{Cite web |date=2020 |title=The Bail Project: After Cash Bail |url=https://bailproject.org/after-cash-bail/ |access-date= |website=The Bail Project |language=en-US}} Advocates note that some people, including houseless individuals and people dealing with substance abuse, require additional support and that the threat of criminal sanctions is ineffective.  

Some scholars contend that FTAs have led to warrant backlogs nationwide.{{Cite journal |last=Gouldin |first=Lauryn P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=690}} In 2019, around one in seven adults had warrants out for their arrest in New Orleans, Louisiana;{{Cite news |last=Webster |first=Richard A. |date=September 20, 2019 |title=One in 7 Adults in New Orleans Have a Warrant Out for Their Arrest, New Data Shows |newspaper=Washington Post |url=https://www.washingtonpost.com/national/one-in-7-adults-in-new-orleans-have-a-warrant-out-for-their-arrest-new-data-shows/2019/09/20/db85a5c8-da3d-11e9-a688-303693fb4b0b_story.html |access-date=}} FTAs were responsible for over half of warrants issued in New Orleans in 2017.{{Cite web |last=ÓFaoláin |first=Sian Miranda Sing |date=September 2019 |title=NOLA Shakedown: How Criminalizing Municipal Fines & Fees Traps Poor & Working Class Black New Orleanians in Poverty |url=https://static1.squarespace.com/static/5d2ca7adab33e90001930ffd/t/5d8aed38def8834a610ffd83/1569385834213/NOLA-Shakedown-Report-FINAL-Single-Page.pdf }} A Department of Justice investigation of the police department in Ferguson, Missouri, found that a municipal court had generated thousands of FTA warrants and used them to impose fines and fees on residents.{{Cite web |date=March 4, 2015 |title=Investigation of the Ferguson Police Department |url=https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf |website=Department of Justice}} Individuals with warrants out of their arrest may be less likely to seek educational and employment opportunities for fear of getting apprehended.{{Cite journal |last=Gouldin |first=Lauryn P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=694}} They may have their driver's license revoked and cannot access public benefits. Several jurisdictions have taken steps to clear FTA warrants to reduce these backlogs.{{Cite web |last=O'Dea |first=Colleen |date=January 22, 2019 |title=NJ Supreme Court Dismisses Massive Backlog of Municipal Cases and Warrants |url=https://www.njspotlightnews.org/2019/01/19-01-21-nj-supreme-court-dismisses-massive-backlog-of-municipal-cases-and-warrants/ |website=NJ Spotlight News}}{{Cite web |date=March 27, 2020 |title=Easing the Burden of Fees and Fines During Covid-19: Brennan Center for Justice |url=https://www.brennancenter.org/our-work/research-reports/easing-burden-fees-and-fines-during-covid-19 |access-date= |website=Brennan Center for Justice |language=en}}

Whether FTA rates are prevalent enough to warrant criminal sanctions has become a point of contention. FTAs are most common for lower-level, non-violent crimes: primarily in traffic court. Not all individuals who receive a traffic ticket or summons for a minor infraction realize that not attending court can lead to a warrant for their arrest.{{Cite journal |last=Sekhon |first=Nirej |date=2018 |title=Dangerous Warrants |url=https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=5048&context=wlr |journal=Washington Law Review |volume=93 |pages=984}} For serious felonies, FTAs are relatively rare. The most recent data available from the Bureau of Justice Statistics demonstrate that 83% of felony defendants will never miss a court date.{{Cite web |last=Reaves |first=Brian A. |date=December 2013 |title=Felony Defendants in Large Urban Counties, 2009 - Statistical Tables |url=https://bjs.ojp.gov/content/pub/pdf/fdluc09.pdf |website=Bureau of Justice Statistics}} The majority of those who miss an appearance will return to court within one year. FTA rates are also challenging to measure and compare. Some jurisdictions treat a single-missed court appearance as an FTA, such that a new FTA arises whenever an individual misses a court date in a single legal proceeding. Other jurisdictions treat all missed court appearances within one legal proceeding as a single FTA.

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Category:Crimes