The ‘Failure to Appear’ Fallacy

When the judge set his bail at $3,000, Jonathan Broad*, 57, thought “All I want is to die free—not in jail.”

Broad was arrested in March 2016 and convicted of “criminal possession of a controlled substance.” When he appeared before the judge shortly after his arrest, he was unemployed and living in a homeless shelter in New York City and suffered from congestive heart failure, diabetes, and asthma. He could not pay the bail. A stint in jail, Broad knew, could be a death sentence.

Bail is not supposed to impose capital punishment, nor is it even supposed to be punitive. The institution of bail traces its history to medieval England, where it was meant to ensure that individuals charged with crimes didn’t evade justice. Since then, however, cash bail has transformed into a de facto form of pretrial incarceration, often for people who have simply been accused of low-level offenses, such drug or property crimes. According to the Bureau of Justice Statistics, nearly half a million people sit in jail waiting for trial nationwide, the vast majority of whom would be free if not for their inability to afford bail.

For about a month, Broad was one of them. At his arraignment, the judge noted that Broad had a long history of similar drug charges, no cell phone number and an open warrant from a recently missed court date. The judge appeared to be unmoved by the fact that Broad had missed court because he had been hospitalized that entire month because of his heart condition.

As states (like California and New Jersey) and jurisdictions across the country enact bail reform policies to eliminate or reduce the role of money bail, critics of bail reform argue that without cash bail, the thousands of defendants who are released on non-monetary conditions will skip their court dates. Based on apparent increases in the number of people missing court hearings, many bail reform pilot programs are already being denounced by pundits and prosecutors as failures. For instance, in Harris County, Texas, the district clerk announced that after bail reform, 43 percent of those individuals who were released without cash bail failed to appear for court between June and December 2017. Similarly, in the fall of 2018, prosecutors in Atlanta claimed that just six months into bail reform the rate of people failing to return to court after being released without bail doubled.

This single-minded focus on so-called failure-to-appear (FTA) rates obscures the fact that most people who miss court aren’t on the run. Like Broad, they are often the most vulnerable people in the criminal justice system: poor, homeless, or mentally ill. Relying on cash bail and pretrial detention to ensure appearance at trial compounds the harms marginalized defendants already face. Decades of research and the experiences of community bail funds show that it’s possible to help people accused of crimes make it to court without jeopardizing their freedom or undermining the presumption of innocence guaranteed by the Constitution.

“If you miss a doctor’s appointment, you call and reschedule…why is this so different?”

Cases like Broad’s highlight a fundamental ambiguity in the term “failure to appear”: people who miss court dates for reasons beyond their control are counted the same as defendants who intentionally avoid court. While bail theoretically discourages people from joining the latter group, there’s little evidence to suggest that absconding is a problem, argues Traci Schlesinger, a sociologist at DePaul University and a board member for the Pretrial Justice Institute.

“What we’re finding is that when people aren’t making it to court for their first appointment, most likely they’ll come to their second appointment—and nearly everyone makes it by the third,” Schlesinger said. “If people aren’t missing past the third appearance, they haven’t failed to appear.”

Most FTAs are the result of forgetfulness or circumstances beyond a defendant’s control, according to Atara Rich-Shea, director of operations at the Massachusetts Bail Fund. They might need child care, or they are just confused by the court system. A court appearance might take place months after a ticket—long forgotten—was issued.

Nor are missed appointments unique to the criminal justice system. Multiple studies report no-show rates of 15 to 30 percent for medical appointments, which is about the same as the criminal court FTA rate in most U.S. jurisdictions. Some parts of the civil court system, like small claims court and housing court, have absentee rates as high as 95 percent.  

“If you miss a doctor’s appointment, you call and reschedule,” Rich-Shea said. “If you miss an appointment with your cable company, you call and reschedule. Why is this so different?”

FTA is also calculated differently in different jurisdictions at different times, and by various agencies. Some agencies calculate the total number of court appointments missed — so that one person who missed 10 court dates would generate 10 FTAs. Other jurisdictions count the number of individuals who failed to appear at any point during the lifetime of a case—so whether a person misses one or 10 court dates, for example, that person would be recorded as one FTA.  

Court dates can drag out over months and even years, requiring a person who faces charges to return multiple times. Many courts are only open during weekday office hours, when many people find it most difficult to take time off from work.

In fact, the percentage of FTAs resulting from defendants absconding is exceedingly low, notes Syracuse University College of Law professor Lauryn Gouldin, author of a 2018 law review article on flight risk.

The largest study on court appearances to date, conducted by the Bureau of Justice Statistics between 1990 and 2004 in 40 of the 75 largest U.S. counties, found that more than three quarters of defendants showed up for all of their court dates. Of the minority that missed at least one hearing, 94 percent appeared in court within a year after their missed court date.

Nevertheless, in many jurisdictions, FTA rates make no distinction between a person who arrives five minutes late for a hearing and one who flees the country.  

“That seems like a real flaw to me,” Gouldin told The Appeal. “Every non-appearance is treated the same, making more innocuous, preventable non-appearances seem more risky.”

Meanwhile, an increasing number of studies show that FTA rates can be drastically reduced by simply redesigning confusing summons notices and sending text message reminders. A January 2018 University of Chicago study found that FTA rates dropped by almost a third (32 percent) one month after New York City implemented these changes.

“Oftentimes we have clients who make several court dates in a row—sometimes five or six—and then miss a later court date,” said Nicole Follmann, co-manager of Bail Operations at the Brooklyn Community Bail Fund. “People cannot continue to take off work or school month after month to continue to come back to court dates where nothing happens.”

The Brooklyn Community Bail Fund eventually paid Broad’s bail, and in the weeks after his release from Rikers Island, Broad made his initial court dates. But he was not in good health. For one appointment, he came to court directly from the hospital. His recent stint in jail had been hard on him. While incarcerated at Rikers, Broad was denied his medication, and he experienced chest pains and limb swelling as a result.

In July, Broad missed his third court date. When the bail fund called to follow up with him, they were told by his attorney that he had been hospitalized. The judge stayed a bench warrant once—but when Broad, still hospitalized, missed his court date in August, the judge issued the warrant.

“People were being released without being told when their court dates were…Some clients would wait and sleep outside the courthouse.”

In 2017, a federal judge in Harris County, Texas, ruled that its cash bail system was unconstitutional. The judge ordered the county to release people who had been arrested on misdemeanor charges but could not afford to pay their bail.

But since the judge’s ruling, Harris County prosecutors who oppose the reform have used FTA rates as “political football” to frustrate bail reform efforts, said Jay Jenkins, an attorney for the Texas Criminal Justice Coalition.

After anti-reform judges claimed that FTA rates increased after the federal court ruling, the American Bail Coalition released a statement decrying the release program as a failed social experiment. “34.6 percent of those the judge is releasing will thumb their nose at the process and not show up for court, costing Harris County millions of dollars to remedy,” said Jeffrey Clayton, executive director of the American Bail Coalition. “The Facts are the facts.”

Harris County criminal court Judge Darrell Jordan countered that 14 other judges who opposed bail reform had “taken steps to sabotage the federal injunction and to manipulate the bond-forfeiture statistics to make it look like people released on unsecured bond pursuant to the federal order are failing to appear in droves.”

Jordan claimed that the other judges intentionally set court hearings less than 24 hours after defendants were released, “a policy designed to make it more likely that people released pursuant to the federal court order will miss court and to inflate the bond-forfeiture numbers for people released pursuant to the federal court order.”

“People were being released without being told when their court dates were,” recalled Jenkins, of the Texas Criminal Justice Coalition. “Public defenders would tell their clients, ‘I think you might have a court date tomorrow, even though they say it isn’t until next week.’ Some clients would wait and sleep outside the courthouse, on a bench.”

Anti-reform judges also exploited a loophole in the 2017 federal court order that required the release of misdemeanor defendants, regardless of their ability to pay bail, but didn’t prevent judges from continuing to set high bails. According to Jordan, this allowed the judges to “funnel” people covered by the order away from the county’s pre-existing pretrial release program, which provides defendants released on personal bond with basic supervision and reminders to ensure they make all of their court appearances.

“Despite knowing that higher risk arrestees will be released on unsecured bond pursuant to the injunction,” Jordan said, “my colleagues have refused to require basic pretrial supervision and court reminders to the group of arrestees released on unsecured bond.”

A January 2018 investigation by the Houston Chronicle found that this practice led to a small group of defendants accounting for a disproportionate number of missed court appearances. Just 29 people, many of whom were mentally ill or homeless, accounted for 235 bond forfeitures. Instead of working to address the reasons these defendants failed to appear in court, anti-reform judges continued to release them with nothing more than a sheet of paper with their next court date written on it.

In November 2018, all 14 anti-reform judges were swept out of office when Harris County voters elected a pro-reform slate of candidates to the bench. Just days after the new judges took their oaths of office this month, they withdrew the appeal of the federal court ruling, opening the door for the county to reach a settlement that permanently reforms its use of cash bail.

The collateral consequences of Failure to Appear 

For many people, a single FTA can keep them trapped in the criminal justice system. Failure to appear is a crime in 46 states, meaning that even when people are acquitted of the offense for which they were appearing for court in the first place, they can face further prosecution for their missed court dates. In some states, penalties for FTAs can be as high as 10 years in prison.

Additionally, most jurisdictions consider past FTAs when setting bail. In many cases, courts will use bail schedules or risk assessment tools that factor missed court dates and resulting open warrants into bail determinations. In New York City, for instance, bail recommendations for people like Broad are made by the city’s Criminal Justice Agency, which rates defendants using a risk assessment algorithm intended to measure likelihood of appearing for court. The algorithm relies on variables such as whether a person has full-time employment or a New York City address. While the agency’s recommendations aren’t binding, people with a high risk score are three times more likely to be denied pretrial release than those with low or moderate risk scores.

But perhaps most important factor that judges look for, according to the Brooklyn Community Bail Fund, is the number of past FTAs. Defendants with even one FTA on their record may be denied release without bail.

Even in states working to eliminate the role of cash bail, such as New Jersey, a past FTA can mean the difference between confinement and freedom. In 2017, the state virtually abolished its cash bail system but defendants are nonetheless rated by the Laura and John Arnold Foundation’s Public Safety Assessment. The tool uses nine factors to evaluate a person’s statistical “risk” for failing to appear in court, being involved in “new criminal activity” (the likelihood that a person will be rearrested for any crime before trial) and being involved in “new violent criminal activity” (the likelihood that a person will be rearrested for a violent crime before trial). In each of those categories, prior FTAs add significant “risk” to a person’s score.

Defendants with high risk scores can be denied pretrial release altogether or subjected to onerous release conditions including house arrest and electronic monitoring.

Sakira Cook, senior counsel at the Leadership Conference on Civil and Human Rights, notes that the overpolicing of communities of color means that people from those communities are likelier to have prior convictions or past FTAs, which lead to high scores on pretrial risk algorithms.

“Criminal justice data reflects the biases in our criminal justice system,” Cook said. “Criminal justice data does not tell us who is committing crimes and what crimes are taking place; it tells us who is being policed.  It’s extremely concerning to say we want to end money bail because it disproportionately impacts people of color but then put in a new system that further impacts people of color and call it reform.”

Indeed, a 2016 paper that analyzed pretrial risk assessment tools found that pre-existing racial disparities in the criminal justice system make it mathematically impossible to construct an accurate risk algorithm without creating new racial disparities. As a result, argues legal scholar Bernard Harcourt, risk itself becomes a proxy for race.

The metric that we should care about instead of FTA, argued Rich-Shea from the Massachusetts Bail Fund, is how frequently cases where defendants are held on bail are dismissed outright before they go to trial.

A Bureau of Justice Statistics survey published in 2013 of 40 large urban jurisdictions found that about 25 percent of all felony cases get dismissed. Research shows that conviction rates drop even further when people are able to fight their cases from outside jail. A 2016 study of defendants in Philadelphia and Miami-Dade County found that pretrial release reduced the likelihood of conviction for felony and misdemeanor defendants from 57 percent to 49 percent.

Rich-Shea has seen this firsthand with the clients her organization bails out in Massachusetts. “Fifty percent of all the cases that we serve are dismissed completely,” she said, referring to the people for whom the Massachusetts Bail Fund paid bail.

The Brooklyn Community Bail Fund lost touch with Broad six months after paying his bail. It isn’t uncommon to lose touch with a client, said Follmann of the bail fund. Living on the streets and in shelters makes it very difficult to keep a cell phone, she added. Often, people’s phone numbers change when their service gets cut off.

“Punishing people for not making a court appearance, when there are so many barriers— transportation, communication, time off, childcare—to getting there, is ridiculous,” said Follmann. “And punishing someone hospitalized for heart failure exemplifies this injustice.”

* “Jonathan Broad” is a pseudonym. Because the Brooklyn Community Bail Fund is no longer in contact with Broad, the fund could not get his permission to use his real name.