Bail Reform: Failure to Appear

by | Dec 15, 2016 | Blog, Criminal Law, Law Reform and Amendments

“The automated pretrial risk-assessment process accounts for the general nature of the present offense (e.g., whether it involves violence) and certain electronically-stored criminal case and court history data that documents the defendant’s previous involvement, if any, in the adult criminal justice system. This automated process produces a Public Safety Assessment (PSA) that provides three pretrial risk indicators: a six-point “failure-to-appear” (FTA) scale, a six-point “new criminal activity” (NCA) scale, and a “new violent criminal activity” (NVCA) “flag.”9    Thus, while the PSA measures risks, the AOC’s “Decision Making Framework ” is designed to manage the identified risks by recommending the appropriate level of release conditions and monitoring.”

“As part of the AOC’s “Decision-Making Framework, “the two six-point scales are used to generate a grid known as the “Pretrial Decision Making Matrix, “where  the  FTA  value is  shown  on the vertical  axis  of  the matrix  and  the NCA value is presented on the horizontal axis. The intersection of the two scores creates a cell that indicates the level and type of release conditions and intervention/monitoring services that the pretrial services program will recommend to the court.”

“Although  the  matrix approach is helpful to the pretrial services program in determining the type and level of release conditions and monitoring services it will recommend to the court to manage the risks identified through the PSA, for purposes of the law enforcement decision whether to issue a complaint-summons or instead apply for a complaint­ warrant, it is not necessary to juxtapose the FTA and NCA point values in a matrix grid. Rather, under this Directive, either a high FTA value or a high NCA value may be sufficient to trigger a presumption that police will apply for a complaint-warrant, which then would provide the pretrial services program an opportunity to recommend appropriate conditions of release. In other words, if the FTA score is low but the NCA score is high, a complaint-warrant should be sought. See, e.g., subsection 4.5.1.”

Query whether a failure to appear that is initially thought to be unexcused will be updated in the system in cases where a defendant demonstrates a valid reason for missing court, i.e. there was a medical emergency or unavoidable transportation issue like a car accident. In those cases, where all parties are later satisfied that there was no intent to abscond and a new date issued, it will be interesting to see if the initially unexcused failure to appear is weighed against a defendant after a subsequent arrest.