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A "failure to appear" (FTA) occurs when a defendant or respondent does not come before a tribunal as directed in a summons. FTAs are also known as "bail jumping." In the United States, FTAs are punishable by fines, incarceration, or both when committed by a criminal defendant. The severity of the punishment depends on the seriousness of the criminal charges that were the subject of the missed proceeding. An FTA may trigger a bench warrant for the defendant's arrest and impair their eligibility for bail and pretrial release in subsequent proceedings. If the conduct alleged is a tort or other cause for civil action, failure to appear generally results in a default judgment by the court in favor of the plaintiff/petitioner.

In the United States

Historically

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."[1][2] Specific penalties for FTAs emerged on the heels of the federal government's campaign to prosecute Communist leaders under the Smith Act of 1940,[3] 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."[4] 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.[3] All four leaders either turned themselves in or were later apprehended,[3] 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 govern- ment'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.[5]

As of 1954, few FTA statutes existed at the state level.[6] New York and Minnesota were among the earliest adopters of statutes penalizing FTAs, but these laws were rarely used in practice.[7] By 1966, only seven states had separate sanctions for FTAs.[8] Over thirty states implemented FTA-specific penalties over the next two decades.[9] These laws coincided with a growing national concern about dangerous defendants and the perceived need for greater deterrence in the pretrial system.[10]

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.[11] In 1984, Congress increased the sanctions for FTAs in federal court.[12] 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."[13] Lawmakers saw heightening the penalties for FTAs "as a means of enhancing the effectiveness of the bail jumping offense as a deterrent to flight."[14]

Modern Federal Law

Failure to appear in U.S. federal law is an offense, depending on the seriousness of the offense the person is being sentenced for:[15][16]

Offense of preconviction Punitive measure Offense level
Offense punishable by death, life imprisonment, or imprisonment up to at least 15 years prison up to 10 years or fine or both 14
Offense punishable by imprisonment up to at least 5 years prison up to 5 years or fine or both 11
Any other felony prison up to 2 years or fine or both 8
Misdemeanor prison up to 1 year or fine or both 5

A witness allowed for release is, in the result, treated the same as though for a misdemeanor.

All states except for Maryland, Mississippi and Wyoming have similar state laws. The territories of the United States lack the crime. In Minnesota, the punishment for failure to appear can even exceed the punishment foreseen by the law for the underlying offense.[17] In most jurisdictions a crime based on another's legal importance, different from qualifications, as for example threatening with bodily violence, never exceeds the punishment of the basic crime, which in the example was bodily violence.

Civil law

In civil law, there is regularly no crime of failure to appear at the criminal court. However, an arrest warrant may be issued and resisting it may fulfill obstruction of a police officer in the exercise of his duties.

Criticism

The criminal status of so-called bail jumping has been criticized as unreasonable due to daily-life and not unusual impedications to attending trial like childcare and transport problems. Punishability for missing the trial because of hospitalization has been seen as injustice. Less supportably than for other crimes, it keeps criminals shut in the punitive system and, more particularly, its institutions. In case of determining bail, it exacerbates the placement on bail significantly.[18]

References

  1. ^ Murphy, Erin (2009). "Manufacturing Crime: Process, Pretext, and Criminal Justice". Georgetown Law Journal. 97: 17 – via SSRN.
  2. ^ Judiciary Act, 1 Stat. 73, § 17 (1789).
  3. ^ a b c Gordan III, John D. (2015). "The Dennis Case, Communist Bail Jumpers and Oliver Ellsworth's "Outlawry" Bill". American Communist History. 14: 106 – via EBSCO.
  4. ^ Smith Act of 1940, 54 Stat. 670 (1940).
  5. ^ S. Rep. No. 98-147, at 57 (1983).
  6. ^ Foote, Caleb (1954). "Compelling Appearance in Court: Administration of Bail in Philadelphia". University of Pennsylvania Law Review. 102: 1068.
  7. ^ Foote, Caleb (1954). "Compelling Appearance in Court: Administration of Bail in Philadelphia". University of Pennsylvania Law Review. 120: 1068–69.
  8. ^ Murphy, Erin (2009). "Manufacturing Crime: Process, Pretext, and Criminal Justice". Georgetown Law Review. 2009: 19 – via SSRN.
  9. ^ Murphy, Erin (2009). "Manufacturing Crime: Process, Pretext, and Criminal Justice". Georgetown law Review. 97: 19 – via SSRN.
  10. ^ Murphy, Erin (2009). "Manufacturing Crime: Process, Pretext, and Criminal Justice". Georgetown Law Review. 97: 18–19 – via SSRN.
  11. ^ Bail Reform Act of 1966, Pub. L. No. 89-465, § 3150, 80 Stat. 216 (1966).
  12. ^ Murphy, Erin (2009). "Manufacturing Crime: Process, Pretext, and Criminal Justice". Georgetown Law Review. 97: 18 – via SSRN.
  13. ^ S. Rep. No. 97-317, at 60 (1982).
  14. ^ H.R. Rep. No. 98-141, at 61 (1983).
  15. ^ 18 U.S.C. § 3146(b)
  16. ^ USSG §2J1.6
  17. ^ Pretrial Release Violations & Ball Forfeiture (2018), National Conference of State Legislatures
  18. ^ Corey, Ethan; Lo, Puck, The "Failure to Appear" Fallacy, January 9, 2019, The Appeal


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