Editing Failure to appear (section)

==In the United States==

=== Historically ===
Punishments for FTAs originated out of courts' [[Contempt of court|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".<ref name=":12">{{Cite journal |last=Murphy |first=Erin |date=2009 |title=Manufacturing Crime: Process, Pretext, and Criminal Justice |url=https://deliverypdf.ssrn.com/delivery.php?ID=867004085082103115104107110075067126125005064079075023078069075018008084011096119104118012027123051028125125113082091108019083053002058023017127117127096006021101067085066084113094120093024126124070013010069084075006002125093100085031080102124074007&EXT=pdf&INDEX=TRUE |journal=Georgetown Law Journal |volume=97 |pages=17 |via=SSRN}}</ref><ref>[https://avalon.law.yale.edu/18th_century/judiciary_act.asp Judiciary Act], 1 Stat. 73, § 17 (1789).</ref> Specific penalties for FTAs emerged on the heels of the federal government's campaign to prosecute [[Communist Party USA|Communist]] leaders under the [[Smith Act|Smith Act of 1940]],<ref name=":14">[https://law.justia.com/cases/federal/appellate-courts/F2/346/875/445737/ United States v. Hall]'','' 346 F.2d 875, 880 (2d Cir. 1965).</ref> 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".<ref>Smith Act of 1940, [https://loveman.sdsu.edu/docs/1940AlienRegistrationAct.pdf 54 Stat. 670] (1940).</ref> 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.<ref name=":14" /><ref name=":16">Daniel J. Freed & Patricia M. Wald, Nat’l Conf. on Bail & Crim. Just., [https://www.ojp.gov/pdffiles1/Photocopy/333NCJRS.pdf Bail in the United States: 1964] 52 (1964).</ref> All four leaders either turned themselves in or were later apprehended,<ref name=":14" /> but their flight would inspire Congress to enact punishments for FTAs three years later:<ref name=":16" /><blockquote>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 government'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.<ref name=":15">S. Rep. No. [https://books.google.com/books?id=0agvAAAAIAAJ&pg=RA30-PA57 98-108], at 57 (1983).</ref></blockquote>As of 1954, few FTA statutes existed at the state level.<ref>{{Cite journal |last=Foote |first=Caleb |date=1954 |title=Compelling Appearance in Court: Administration of Bail in Philadelphia |url=https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=7812&context=penn_law_review |journal=University of Pennsylvania Law Review |volume=102 |pages=1068}}</ref> New York and Minnesota were among the earliest adopters of statutes penalizing FTAs, but these laws were rarely used in practice.<ref>{{Cite journal |last=Foote |first=Caleb |date=1954 |title=Compelling Appearance in Court: Administration of Bail in Philadelphia |url=https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=7812&context=penn_law_review |journal=University of Pennsylvania Law Review |volume=120 |pages=1068–69}}</ref> By 1966, only seven states had separate sanctions for FTAs.<ref>{{Cite journal |last=Murphy |first=Erin |date=2009 |title=Manufacturing Crime: Process, Pretext, and Criminal Justice |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1279681 |journal=Georgetown Law Review |volume=2009 |pages=19 |ssrn=1279681 |via=SSRN}}</ref> Over thirty states implemented FTA-specific penalties over the next two decades.<ref>{{Cite journal |last=Murphy |first=Erin |date=2009 |title=Manufacturing Crime: Process, Pretext, and Criminal Justice |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1279681 |journal=Georgetown Law Review |volume=97 |pages=19 |ssrn=1279681 |via=SSRN}}</ref> These laws coincided with a growing national concern about dangerous defendants and the perceived need for greater deterrence in the pretrial system.<ref>{{Cite journal |last=Murphy |first=Erin |date=2009 |title=Manufacturing Crime: Process, Pretext, and Criminal Justice |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1279681 |journal=Georgetown Law Review |volume=97 |pages=18–19 |ssrn=1279681 |via=SSRN}}</ref>

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.<ref>[https://www.govinfo.gov/content/pkg/STATUTE-80/pdf/STATUTE-80-Pg214.pdf#page=1 Bail Reform Act of 1966], Pub. L. No. 89-465, § 3150, 80 Stat. 216 (1966).</ref> In 1984, Congress increased the sanctions for FTAs in federal court.<ref>{{Cite journal |last=Murphy |first=Erin |date=2009 |title=Manufacturing Crime: Process, Pretext, and Criminal Justice |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1279681 |journal=Georgetown Law Review |volume=97 |pages=18 |ssrn=1279681 |via=SSRN}}</ref> 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".<ref name=":15" /> Lawmakers saw heightening the penalties for FTAs "as a means of enhancing the effectiveness of the bail jumping offense as a deterrent to flight."<ref>S. Rep. No. [https://books.google.com/books?id=0agvAAAAIAAJ&pg=RA30-PA61 98-108], at 61 (1983).</ref>

=== 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.<ref name=":6">18 U.S.C. § [https://www.law.cornell.edu/uscode/text/18/3146 3146].</ref> A court will use the following scheme to determine a defendant's punishment:<ref>[[U.S. Sentencing Guidelines|USSG]] [http://www.ussc.gov/guidelines-manual/2014/2014-chapter-2-e-k#2j16 §2J1.6]</ref>

{|class="wikitable"
|-
![[Crime|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.<ref name=":6" /> 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".<ref name=":6" />

An "uncontrollable circumstance" can either be physical or mental, the latter of which courts refer to as "[[Duress in American law|duress]]".<ref name=":10">[https://law.justia.com/cases/federal/appellate-courts/F3/40/9/507779/ United States v. Veilleux], 40 F.3d 9, 10 (1st Cir. 1994).</ref> 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.<ref name=":10" /> The prospect of prosecutorial reprisal, fear of harassment, and loss of faith in the criminal justice system generally do not amount to uncontrollable duress.<ref name=":10" /><ref>[https://casetext.com/case/us-v-kinsella-6 United States v. Kinsella], 530 F. Supp. 2d 356, 362 (D. Me. 2008).</ref> Courts have dismissed claims based on fears of [[deportation]]<ref name=":13">[https://law.justia.com/cases/federal/appellate-courts/F2/814/73/336027/ United States v. Odufowora], 814 F.2d 73, 75 (1st Cir. 1987).</ref> and a defendant's desire "to make a political statement or engage in protest activity".<ref>[https://law.justia.com/cases/federal/appellate-courts/F3/51/861/617558/ United States v. Springer], 51 F.3d 861, 868 (9th Cir. 1995).</ref> 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."<ref name=":13" /><ref>S. Rep. No. [https://books.google.com/books?id=JbIvAAAAIAAJ&pg=PA32 98-227], at 32 (1983).</ref>

=== State laws ===
All fifty states have implemented statutes penalizing FTAs, which several state statutes call "bail jumping" in their official codes.<ref>Ala. Code § [https://law.justia.com/codes/alabama/2021/title-13a/chapter-10/article-2/section-13a-10-39/ 13A-10-39] (2021).</ref><ref>Ga. Code § [https://law.justia.com/codes/georgia/2020/title-16/chapter-10/article-3/section-16-10-51/ 16-10-51] (2020).</ref><ref>Ky. Rev. Stat. § [https://law.justia.com/codes/kentucky/2021/chapter-520/section-520-070/ 520.070] (2021).</ref><ref>La. Rev. Stat. § [https://law.justia.com/codes/louisiana/2021/revised-statutes/title-14/rs-110-1/ 14:110.1] (2021).</ref><ref>N.Y. Penal Law § [https://law.justia.com/codes/new-york/2021/pen/part-3/title-l/article-215/215-55/ 215.55] (2021).</ref><ref>Wash. Rev. Code § [https://law.justia.com/codes/washington/2021/title-9a/chapter-9a-76/section-9a-76-170/ 9A.76.170] (2021).</ref>  The District of Columbia and all states besides Mississippi make FTAs the basis of additional criminal charges.<ref name=":8">{{Cite web |date=February 25, 2022 |title=Statutory Responses for Failure to Appear (Statutory Summary) |url=https://www.ncsl.org/research/civil-and-criminal-justice/statutory-responses-for-failure-to-appear.aspx |access-date= |website=National Conference of State Legislatures}}</ref> For example, an FTA can qualify as a misdemeanor or felony in Idaho depending on the underlying offense:<blockquote>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.<ref>Idaho Code § [https://law.justia.com/codes/idaho/2021/title-18/chapter-74/section-18-7401/ 18-7401] (2021).</ref></blockquote>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.<ref name=":9">{{Cite web |date=February 25, 2022 |title=Statutory Responses for Failure to Appear (Database) |url=https://app.powerbi.com/view?r=eyJrIjoiMGIyYjYwZmItMWM4ZS00Njg4LWI2NTUtNzFiNzMzN2VkZjI3IiwidCI6IjM4MmZiOGIwLTRkYzMtNDEwNy04MGJkLTM1OTViMjQzMmZhZSIsImMiOjZ9&pageName=ReportSection |website=National Conference of State Legislatures}}</ref> Many jurisdictions leave the decision to issue a bench warrant within the judge's discretion—at least under some circumstances.<ref name=":7">Ala. Code § [https://law.justia.com/codes/alabama/2021/title-11/title-2/chapter-45/section-11-45-9-1/ 11-45-9.1(h)] (2021).</ref><ref>Cal. Penal Code § [https://law.justia.com/codes/california/2021/code-pen/part-2/title-6/chapter-7/section-1043/ 1043(e)(3)] (2021).</ref> 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,<ref>Md. Code, Crim Proc. § [https://law.justia.com/codes/maryland/2020/criminal-procedure/title-5/subtitle-2/section-5-211/ 5-211(a)] (2020).</ref> whereas a judge retains discretion over whether to use a bench warrant when a defendant fails to appear in response to a citation.<ref>Md. Code, Crim. Proc. § [https://law.justia.com/codes/maryland/2020/criminal-procedure/title-5/subtitle-2/section-5-212/ 5-212(b)] (2020).</ref>

At least forty states impose a driver's license penalty for FTAs, often suspending an individual's license until the person appears in court.<ref name=":8" /> These laws generally apply when the FTA occurs in traffic court.<ref name=":8" /> In Missouri, a "resident charged with a moving traffic violation" will have their license automatically suspended for failing to appear in court when required.<ref>Mo. Rev. Stat. § [https://law.justia.com/codes/missouri/2021/title-xix/chapter-302/section-302-341/ 302.341] (2021).</ref> At least seven states authorize driver's license suspensions for reasons unrelated to traffic court.<ref name=":8" /> Other license-related punishments include "authorized vehicle immobilization, liens and mandatory delinquency [and] reinstatement fees".<ref name=":8" />

=== Consequences for future proceedings ===
An FTA will often follow a defendant in future proceedings. When deciding whether to release someone pretrial, a judge must usually ask whether a defendant is likely to appear for trial if released and whether the defendant would pose a danger to the community.<ref>{{Cite journal |last1=Baradaran |first1=Shima |last2=McIntyre |first2=Frank L. |date=2012 |title=Predicting Violence |url=http://texaslawreview.org/wp-content/uploads/2015/08/Baradaran-McIntyre-90-TLR-497.pdf |journal=Texas Law Review |volume=90 |pages=499 |doi= |issn=}}</ref> A defendant's record of prior court attendance is one of the primary factors that a judge looks to when determining whether to grant pretrial release.<ref>{{Cite journal |last=Baradaran Baughman |first=Shima |date=2020 |title=Dividing Bail Reform |url=https://ilr.law.uiowa.edu/assets/Uploads/ILR-105-3-Baughman-1-v5.pdf |journal=Iowa Law Review |volume=105 |pages=988}}</ref> Having a single FTA can lead courts to refuse to release defendants on their own [[recognizance]] or let them post bail.<ref name=":1">{{Cite web |last1=Lo |first1=Puck |last2=Corey |first2=Ethan |date=January 9, 2019 |title=The 'Failure to Appear' Fallacy |url=https://theappeal.org/the-failure-to-appear-fallacy/ |access-date= |website=The Appeal |language=en}}</ref> Some courts rely on risk-assessment tools, which use algorithms to predict the likelihood that a defendant will not appear; a prior FTA, especially a recent one, significantly slants the algorithm toward deeming the defendant high-risk.<ref>{{Cite journal |last=Gouldin |first=Lauryn P. |date=2018 |title=Defining Flight Risk |url=https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/02%20Gouldin_ART_SA%20%28JPM%29.pdf |journal=University of Chicago Law Review |volume=85 |pages=720}}</ref>