By LINDSAY GRAEF, SANDRA G. MAYSON, AURÉLIE OUSS & MEGAN T. STEVENSON

This Article aims to reorient the conversation around “failure-to-appear” (FTA) in criminal court. Recent policy and scholarship have addressed FTA mostly as a problem of criminal defendants in connection with questions about how bail systems should operate. But ten years of data from Philadelphia reveal a striking fact: it is not defendants who most frequently fail to appear but rather the other parties necessary for a criminal proceeding—witnesses and lawyers. Between 2010 and 2020, an essential witness or private attorney failed to appear for at least one hearing in 53% of all cases, compared to a 19% FTA rate for defendants. Police officers, victims, other witnesses, and private attorneys each failed to appear at rates substantially higher than defendants. In short: FTA is a systemic phenomenon.

The systemic nature of FTA calls into question the extreme asymmetry between the treatment of defendant and non-defendant FTA. Bail reform has generated intense debates about when cash bail, detention, and other pretrial interventions are warranted to ensure defendants’ appearance. Given that witnesses and lawyers also have a legal duty to appear, the systemic nature of FTA requires more comprehensive thinking about how best to get people to court and when restrictions on liberty are appropriate.

Systemic FTA also has systemic consequences, because when essential witnesses don’t show, cases are dismissed or withdrawn. FTA thus serves a regulatory function by providing a check on the nature and volume of criminal adjudications. Sometimes this function seems beneficial, as when witness FTA carries information about the strength or worth of the case, but other times it seems like a problem. The sheer volume of police officer FTA creates an impression of arbitrariness, dysfunction, and disrespect. Other aspects of this regulatory dynamic are more ambiguous. For instance, victim FTA rates are so persistently high that many appear to be effectively “opting out” of the criminal proceeding. Does this tell us that certain classes of harm are better dealt with outside of the criminal legal process? Or are we, as a society, losing something valuable when cases are dismissed due to victim or witness nonappearance? More generally, when is witness FTA a problem and when is it a healthy check on the system? This Article aims to draw attention to systemic FTA as an important feature of contemporary U.S. criminal legal systems, identify the core questions that it raises, and lay a path for future research.

172 U. Pa. L. Rev. 1 (2024)., 60p.

By  Elise Ferguson,  Daniel Goldberg,  Paul Guerin

This study examines the validity of the judicial designee assessment (JDA), an assessment tool used in Bernalillo County Metropolitan Court for select misdemeanor cases. We review specifically the ability to predict the likelihood of an individual committing a new crime, committing new violent crime, and failing to appear at a future court hearing during their pretrial period. Validity is reviewed for race and gender. Additional research is included that provides a preliminary look at the use of the JDA for charges that would typically not have qualified for assessment.

Albuquerque: University of New Mexico, Institute for Social Research, 2023. 25p.

By Sara Rahman

Aim: To estimate the effect of bail decisions on the likelihood of receiving a prison sentence, failure to appear and offending on bail. Method: A dataset of 42,362 first bail hearings taking place after the ‘show cause’ amendments to the Bail Act (2013) was constructed and linked to final case outcomes and offending data. Quasi-random assignment of bail magistrates with differing propensities to grant bail was used to address problems of selection bias and partial observability. Further analyses were undertaken to determine the proportion and characteristics of defendants who were sensitive to magistrate leniency. Robustness checks were conducted to determine the sensitivity of estimates to different specifications. Results: The marginal effect of additional releases is an increase in the rate of offending from 2.3 per cent to 13.3 per cent, a decrease in the rate of imprisonment from 59.0 to 49.0 per cent and an increase in the rate of failure to appear from 2.1 per cent to 11.1 per cent for those defendants. Thus, remanding ten additional defendants increases the number imprisoned by one, and reduces the number of offending and failing to appear by 1.1 and 0.9 on average. These estimates are causal and net of differences in observed characteristics and selection bias, but applicable only to a subset of defendants whose bail status is sensitive to magistrate leniency. The likelihood of failing to appear and of offending on bail for these defendants does not exceed the general rate among those released on bail. Conclusion: Taken together, the results show that bail refusal has a significant incapacitation effect on crime and failure to appear. These benefits should, however, be considered alongside the considerable cost to the correctional system and the individual arising from increased imprisonment rates. There is limited evidence for the influence of selection bias in regards to imprisonment but not in relation to crime or failure to appear.

Brisbane: NSW Bureau of Crime Statistics and Research , 2019. 24p.