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Failure to appear

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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

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.[15] A court will use the following scheme to determine a defendant's punishment:[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 defendant can present an affirmative defense that "uncontrollable circumstances prevented" their appearance.[17] 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."[17]

An "uncontrollable circumstance" can either be physical or mental, the latter of which courts refer to as "duress."[18] 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.[18] The prospect of prosecutorial reprisal, fear of harassment, and loss of faith in the criminal justice system generally do not amount to uncontrollable duress.[18][19] Courts have dismissed claims based on fears of deportation[20] and a defendant's desire "to make a political statement or engage in protest activity."[21] 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."[20][22]

State Laws

All fifty states have implemented statutes penalizing FTAs, which several state statutes call "bail jumping" in their official codes.[23][24][25][26][27][28] The District of Columbia and all states besides Mississippi make FTAs the basis of additional criminal charges.[29] 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.[30]

At least thirty states and the District of Columbia authorize courts to issue bench warrants for a defendant's arrest or orders for a defendant to appear after an FTA.[31] Many jurisdictions leave the decision to issue a bench warrant within the judge's discretion—at least under some circumstances.[32][33] For example, in Maryland, a defendant who "forfeits . . . bail or recognizance and willfully fails to surrender" will have a bench warrant automatically issued for their arrest,[34] whereas a judge retains discretion over whether to use a bench warrant when a defendant fails to appear in response to a citation.[35]

At least forty states impose a driver's license penalty for FTAs, often suspending an individual's license until the person appears in court.[29] These laws generally apply when the FTA occurs in traffic court.[29] In Missouri, a "resident charged with a moving traffic violation" will have their license automatically suspended for failing to appear in court when required.[36] At least seven states authorize driver's license suspensions for reasons unrelated to traffic court.[29] Other license-related punishments include "authorized vehicle immobilization, liens and mandatory delinquency [and] reinstatement fees."[29]

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.[37]

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.
  16. ^ USSG §2J1.6
  17. ^ a b 18 U.S.C. § 3146.
  18. ^ a b c United States v. Veilleux, 40 F.3d 9, 10 (1st Cir. 1994).
  19. ^ United States v. Kinsella, 530 F. Supp. 2d 356, 362 (D. Me. 2008).
  20. ^ a b United States v. Odufowora, 814 F.2d 73, 75 (1st Cir. 1987).
  21. ^ United States v. Springer, 51 F.3d 861, 868 (9th Cir. 1995).
  22. ^ S. Rep. No. 98-227, at 32 (1983).
  23. ^ Ala. Code § 13A-10-39 (2021)
  24. ^ Ga. Code § 16-10-51 (2020).
  25. ^ Ky. Rev. Stat. § 520.070 (2021).
  26. ^ La. Rev. Stat. § 14:110.1 (2021)
  27. ^ N.Y. Penal Law § 215.55 (2021).
  28. ^ Wash. Rev. Code § 9A.76.170 (2021).
  29. ^ a b c d e "Statutory Responses for Failure to Appear (Statutory Summary)". National Conference of State Legislatures. February 25, 2022.{{cite web}}: CS1 maint: url-status (link)
  30. ^ Idaho Code § 18-7401 (2021).
  31. ^ "Statutory Responses for Failure to Appear (Database)". National Conference of State Legislatures. February 25, 2022.{{cite web}}: CS1 maint: url-status (link)
  32. ^ Ala. Code § 11-45-9.1 (2021).
  33. ^ Cal. Penal Code § 1043 (2021)
  34. ^ Md. Code, Crim Proc. § 5-211 (2020).
  35. ^ Md. Code, Crim. Proc. § 5-212 (2020).
  36. ^ Mo. Rev. Stat. § 302.341 (2021).
  37. ^ Corey, Ethan; Lo, Puck, The "Failure to Appear" Fallacy, January 9, 2019, The Appeal


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