Understanding and Reframing an Individual’s Failure to Appear in Court

By: Shannon Magnuson

July 31, 2023

Failure to appear in court is often a disproportionate driver of jail populations. It is important to understand it better and to reframe it, as part of the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC)—which is reducing jail populations across America.

Justice System Partners (JSP), a technical assistance provider to the Safety and Justice Challenge, recently conducted an in-depth study about why people do not get to court as scheduled in Lake County, Illinois. Leadership there know even one night in jail can be disastrous for some people. It can lead to a host of negative consequences including loss of employment. But they saw bench warrants for missing court were also driving their jail population at a disparate rate. That is why they wanted to know more about why people miss court.

JSP interviewed 50 people, most of whom were in custody for a bench warrant, not a new crime, at the time. The focus of the interviews was about barriers individuals face when trying to get to court as scheduled. The interview also asked about which services or supports might help and if automated court notification systems and virtual court proceedings help people get to court easier.

Some of the key findings and recommendations were:

Acknowledge Major Barriers to Court Appearance 

Participants described three major barriers to getting to court. They were: life responsibilities and challenges; logistical and technical concerns; and past experiences and emotional reactions. Over a third of the people interviewed described navigating more than one major barrier at the time of their court recorded absence. 60 percent of participants described life responsibilities and challenges as a primary barrier to getting to court as scheduled. This includes managing mental health challenges; serving as a primary care giver; working; simultaneously navigating custody and divorce cases; and securing shelter or navigating homelessness. Over a quarter of individuals (28 percent) reported that attending their court hearing would put their basic needs, like food or shelter, at risk.

Reframe the Term “Failure to Appear”

A key takeaway of the report is the importance of reframing the language of the missed court hearing. People are trying to get to court. Individuals described navigating multiple obligations, competing demands, and barriers too challenging to overcome. Some individuals described the need to prioritize basic needs, like food and shelter, over their court obligations. The report recommends shifting the term from “failure to appear” to terms such as “recorded court absence” or “not getting to court as scheduled.”

Use Intermediary Steps to Avoid Cascading Impacts of Bench Warrants

When individuals return to jail from a bench warrant after not getting to court as scheduled, it can have a cascading impact on their life. Courts should consider alternatives to warrants for missing court hearings. For people who do not have the material resources to get to court, the threat of a bench warrant and returning to jail may not be compelling. It is simply not effective. Courts should consider an intermediary step before issuing a bench warrant. This could include strategies that do not prompt an arrest, and instead encourage attendance, such as relying on the notification system or issuing cite-in-lieu or summons.

Help People Meet Court Obligations

We must critically challenge the desire to punish individuals who are often experiencing cumulative disadvantage and navigating poverty. Helping people who repeatedly miss court to meet their court obligations will require a radical shift in traditional case processing. It is time we consider that many individuals navigating the court cannot prioritize court over other personal obligations. Helping individuals with limited resources meet the obligations of their case will require developing policies that treat court as one of many important obligations in their life. It also means investing in better awareness of notification systems. 90 percent of individuals were not aware of either the county’s Public Defender or Pretrial Services court reminder notification systems. Of the people who were not aware of the system, more than 90 percent said they would opt into the system if offered to do so again.

Offer Grace and Flexibility

The rigidity of court rules about tardiness and day-of-attendance penalizes individuals who are willing to get to court but lack the resources to do so. In some cases, the perceived rules related to lateness encourage individuals to reluctantly choose not to come to court. Courts could prioritize an individual’s schedule or, at least, offer more flexibility when scheduling court hearings. Courts could also set up a grace period for tardiness by moving individuals to the end of the docket to give them more time to arrive. Courts could create an overflow docket or “make up” docket at the end of the week for individuals who were unable to attend earlier in the week.

Challenge Perceptions And Norms About In-Person vs. Virtual Hearings

Participants perceived judges as more willing to extend grace to individuals who appear in-person rather than virtually. As a result, individuals risk missing court altogether by trying to prioritize appearing in-person, even though a virtual hearing might have been available and easier to attend. Judges must reckon with the implicit biases they may have for individuals who use virtual court to navigate their case. Courts should reevaluate existing culture prioritizing in-person hearings and propose alternative options which encourage flexibility. Courts should also consider the necessity of attendance and prioritize and minimize the number of hearings an individual must attend.

Reconsider the Goal of the Court

We must reconsider the goal of the court: to enforce attendance or to help people responsibly resolve their case. Courts are effectively asking an already taxed and emotionally drained person to navigate another large, taxing, and emotionally draining system without financial or emotional assistance. The consequence for navigating the system incorrectly is returning to jail, an accelerant to continued and chronic disadvantage.

Enhance Equity

Missing court is rarely a willful event or an attempt to evade justice. Enhancing equity in the pretrial process will require courts to reimagine the process for the population of people who continuously miss court. Importantly, enhancing equity will require courts to critically challenge the desire to punish individuals who are navigating poverty while also navigating their case.