Failure to Appears: How The System Is Broken

By The Justice Collaborative

  • During July 2018, more than one-third of the people booked into the Jefferson County Jail were arrested for a Failure to Appear (FTA) warrant or charge.

  • That’s approximately 430 people in jail with FTA charges and approximately 280 people held solely on FTA charges with no additional charges.

  • Statewide in 2016, the highest rate of arrest by far was for Failures to Appear.

  • Currently, people are released from the jail after being arrested and not given their court date. Instead, they are given a number to call to find out their court date. Getting through to a person is hard, if not impossible.

  • Failures to Appear are issued without anyone checking to see where the person is. Sometimes a person is in jail in another county or even serving a prison system. Prosecutors don’t do a quick search location search before issuing a warrant.

  • Even if the case is later dismissed, just three or four days waiting to be released increases the risks of recidivism.

  • When someone is held on a failure to appear for a low-level charge, they are more likely to plead guilty to get out if they don’t have money to pay bail. The conviction then causes a cycle of fines and fees, loss of employment, lack of stability and other collateral consequences.

Are the people of Jefferson County simply bad at remembering dates or is something else going on? Let’s use “Joe” as an example. Joe is 19 years old and lives with his girlfriend, Mary. Joe is arrested, after a traffic stop, for possessing a small amount of marijuana. Because there were other people in the car, he is charged with felony marijuana possession, “not for personal use.” When Joe is booked, he knows he is being charged with marijuana but the police officers don’t tell him he is being charged with a felony. Joe goes to the Jefferson County Jail, and he is given a risk assessment that recommends he be released. Joe goes in front of a judge, at this point extremely sleep deprived and concerned that he isn’t going home. He does not have a lawyer at this point, and is so relieved to hear he is going home he can think of almost nothing else.

Even the most conscientious person at this point may have trouble remembering a date told to them by the Judge, but in Jefferson County Joe doesn’t even have that much given to him. Instead, he is given a piece of paper with a phone number on it. Joe gathers his belongings at the jail and calls his girlfriend to come pick him up.

Joe is relieved to be out of jail, but he isn’t quite sure what to do next. He knows he was arrested for marijuana, but everything happened so quickly he isn’t even sure if his case is over or not. The piece of paper says that he is going to go to jail if he doesn’t appear for court, so he figures he needs to go back. The next day he tries calling the number. No one answers.

Luckily Joe’s boss lets him come back to work even though he missed a few days because of the arrest. Joe works 7am-5pm doing construction Monday through Saturday, and he isn’t allowed to be on his phone while on the job. He tries calling a few times during his lunch break, but no one answers so he stops trying. Mary asks him when he goes back to court, and he tells her he doesn’t know. One night, Mary tries looking online to see if she can find his court date but nothing shows up.

They talk about what to do next, and they think maybe he’ll get a letter in the mail telling him when to go back to court. They talk about going to the courthouse to see what the next court date is, but Mary is a full-time student and works, while Joe can’t miss anymore work or he’ll be fired. Their daily lives take over, and both forget to keep calling the number as the weeks go by.

About few weeks later, Joe is leaving a worksite in Mountain Brook on his way home to Ensley when he is pulled over for failing to signal at a turn. The police officers run his name, discover he is wanted for failing to appear in court and he is booked into the Jefferson County Jail. He tries telling the officers that he didn’t know he was supposed to go to court last week, but they take him in anyway.

This time, he isn’t recommended for release because he is now a “flight risk.” Although Joe tries to tell his lawyer, the prosecutor and the Judge that he didn’t know when his court date was, he is told that it was his responsibility to figure it out. After two weeks in jail, Joe has lost his job, he and Mary are behind on the rent, and Joe is desperate to get out of jail. He pleads guilty to the felony marijuana charge and is released.

Joe, at 19, now has a felony record, is unemployed, and had to spend two weeks in jail all because he was not able to find out his court date. Joe is not alone- one third of the people charged in Jefferson County miss their court dates. Statewide, in 2016 more people were charged with failing to appear to court than any other charge.

What can be done?

Prosecutors Should:

  • Ensure that actual notice of a court date was provided to the person, not a phone number to call. Relying on the defense attorney to provide notice to their clients is not service.

  • Do a quick internet check of surrounding jails and State Prison to ensure the person is not in custody.

  • Work with Stakeholders to create a system to notify people of their court date, such as text message reminders.

  • Object to warrants for FTA being issued when the above has not happened.