More often than not, FTAs are a reflection of someone’s needs or things out of their control rather than their desire to skip court.1Ethan Corey and Puck Lo: The ‘Failure to Appear’ Fallacy, The Appeal Deliberately skipping court is actually very rare.
In fact, data from 2009 show that 83% of felony defendants appeared for all scheduled court dates, and while some may have missed their initial court dates, 97% of all released felony defendants made it to court within a year.2Lauryn P. Gouldin: Defining Flight Risk, The University of Chicago Law Review
There are many reasons why someone might miss a court date, including a lack of transportation, inability to miss work, lack of childcare, lack of reminders,3Caitlin Hill: Rethinking the Concept of “Failure to Appear”, ACLU Ohio mental health issues, or substance use addiction. It can be difficult to keep every court appointment with all of these structural limitations, especially as court cases can take a long time to resolve.
A county judge in Indiana stated that “ ‘flake risk’ – people forgetting to show up, or not being able to – is far more common than the ‘flight risk’ of someone evading justice.”4RJ Vogt: Coin Toss: Are Risk-Measuring Tools Accurate Enough? Law 360
In Harris County, Texas, a high FTA rate was reported after a change in the scheduling process for initial hearings, but it turned out that many people missed their hearings because they were told the wrong date to appear or were still being processed in jail less than 12 hours before their hearing was supposed to take place.5Bryce Covert: Are Harris County Officials Trying To ‘Sabotage’ Bail Reform with Misleading Data? The Appeal
Simple text message reminder programs for court dates have shown huge successes. In one case, a text reminder program achieved a 95% court attendance rate.6Uptrust In another study, FTA rates decreased by 26% when courts sent effective text reminders and 13% by simply redesigning the summons form telling people when to come to court.7Brice Cooke, Binta Zahra Diop, Alissa Fishbane, Jonathan Hayes, Aurelie Ouss, and Anuj Shah: Using Behavioral Science to Improve Criminal Justice Outcomes: Preventing Failures to Appear in Court, ideas42 and University of Chicago Crime Lab
In addition, “failure to appear” is determined differently depending on jurisdiction, so using FTA in algorithms is not even a consistent measure across different locations.
Some jurisdictions count the total number of court appearances missed, even if they are all for the same case. In these jurisdictions, if someone misses court 5 times for a particular case, it counts as 5 FTAs. Other jurisdictions would count this as one FTA for a single case. Some courts even count being late for a hearing as an FTA.8Ethan Corey and Puck Lo: The ‘Failure to Appear’ Fallacy, The Appeal
The way that FTA is defined could completely change the way that it is counted against someone in a risk score. If someone only received an FTA after not appearing in court for six months or a year, or if individuals were able to reschedule a court appearance the way they can reschedule a doctor’s appointment,9Ethan Corey and Puck Lo: The ‘Failure to Appear’ Fallacy, The Appeal RAT scores for FTA could look very different.
Without considering the circumstances surrounding a missed court date, courts miss an opportunity to provide meaningful support, and instead use past FTAs to impose harsher pretrial supervision conditions and higher risk scores.10Ethan Corey and Puck Lo: The ‘Failure to Appear’ Fallacy, The Appeal
