An Experiment in the Law: Studying a Technique to Reduce Failure to Appear in Court
![handle is hein.journals/ctrev48 and id is 96 raw text is: An Experiment in the Law:
Studying a Technique to Reduce Failure to Appear in Court
Alan J. Tomkins, Brian Bornstein, Mitchel N. Herian, David 1. Rosenbaum & Elizabeth M. Neeley
It would be ideal if we knew the best ways to structure the
judicial system, the best processes to use to ensure fairness
for litigants, and the best incentives to ensure compliance
with the law. Unfortunately, as all of us who work in or with
the system and those of us who study such issues well know,
we do not. So what should we do?
As social scientists trained to examine the judiciary and
judicial processes from the perspectives of economics, law,
political science, psychology, and sociology, we suggest that
systematic experimentation should be used whenever feasible and
warranted to study the operations of the courts for purposes of
improving the courts' functioning. As has been learned in the
case of medical procedures and treatments, systematic, experi-
mental, or quasi-experimental study helps to determine what
works, what does not, and why Decades ago, in the face of
charges that experimentation in the law would undermine due
process and equal treatment, the Federal Judicial Center
rebutted these concerns, arguing that rather than thwarting
justice, experimentation in the law promotes justice, ensuring
an evidentiary basis for court reforms and administrative deci-
sion making.i Our work operates under this approach to
examining potential judicial reforms. In this article, we discuss
our use of the methods of science2 to examine systematically
whether there might be a technique that would, without costs
that exceeded their benefits, reduce misdemeanants' failure to
appear in court.3
It is not overly hyperbolic to assert that failure to appear
(FTA) at a scheduled court appearance4 is an epidemic problem
afflicting defendants who do not have attorneys: Some estimates
of misdemeanants who do not appear for their court hearing are
as high as one in three, depending on the jurisdiction and
offense type.5 FTAs increase resources that need to be expended
We are grateful for the research assistance of Caitlin Cedfeldt, Joe
Hamm, Nicole Hutsell, Lindsay Klug, Jennifer Li, Sucharitha
Rajendran, and Maria Warhol, and also for the contributions of our
colleagues, Larry Heuer (Columbia University), Lisa PytlikZillig
(Public Policy Center), and David Rottman (National Center for State
Courts). Finally, a specific caveat: Any opinions, findings, and con-
clusions or recommendations expressed in this article are those of the
authors and do not necessarily reflect the views of any state or county
governmental official or entity in Nebraska, nor of our funder, the
National Institute of Justice (Award # 2008-IJ-CX-0022).
Footnotes
1. FEDERAL JUDICIAL CENTER, EXPERIMENTATION IN THE LAW: REPORT OF
THE FEDERAL JUDICIAL CENTER ADVISORY COMMITTEE ON
EXPERIMENTATION IN THE LAW (1981). See also Jerry Goldman,
Experimenting withjustice: The Federal judicial Center Report, 8 L.
& Soc. INQUIRY 733 (1983).
2. See, e.g., David Goodstein, How Science Works, in REFERENCE
MANUAL ON SCIENTIFIC EVIDENCE 37 (3d ed., 2011).
3. The research summarized here is based on a project funded by the
National Institute of Justice (Award # 2008-IJ-CX-0022) and is
adapted from three peer-reviewed publications: The project's final
report submitted to NIJ, BRIAN H. BORNSTEIN, ALAN J. TOMKINS, &
ELIZABETH M. NEELEY, REDUCING COURTS' FAILURE TO APPEAR RATE:
A PROCEDURAL JUSTICE APPROACH (2010), available at
http://www.michigan.gov/documents/corrections/Reducing
Courts Failure to Appear Rate 376119_7.pdf (NIJ does not
endorse project final reports, but they do subject them to internal
and peer review before the final report is accepted and made avail-
able through the Inter-University Consortium for Political and
Social Research [ICPSR] data and document repository, hosted by
the University of Michigan); and two journal articles, Brian H.
Bornstein et al., Reducing Courts' Failure- to-Appear Rate by Written
Reminders, 18 PSYCHOL. PUB. PoLY & L. (in press) (PDF version
available online, doi: 10.1037/a0026293; page numbers herein
refer to the PDF version because the pagination for the journal
article are not presently available); and David I. Rosenbaum et al.,
Using Court Date Reminder Postcards to Reduce Courts' Failure to
Appear Rates: A Benefit-Cost Analysis, 95 JUDICATURE 177 (2012).
The primary data themselves also are available through ICPSR, at
http://dx.doi.org/10.3886/ICPSR28861.v1. See also Joseph A.
Hamm et al., Exploring Separable Components of Institutional
Confidence, 29 BEHAV. SCI. & L. 95 (2011) (psychometric develop-
ment of trust and confidence measures); Joseph A. Hamm et al.,
Deconstructing Public Confidence in State Courts (unpublished
manuscript, available upon request, currently under review for
publication, 2012) (further psychometric refinement of trust/con-
fidence measures). We also published preliminary insights in our
state's bar magazine, Mitchel N. Herian & Brian H. Bornstein,
Reducing Failure to Appear in Nebraska: A Field Study, NEB.
LAWYER, Sept. 2010, at 11.
4. Over the past 40 years, the issue of failure to appear in court has
primarily been studied in the context of whether to liberalize pre-
trial release for defendants who are charged with minor offenses
to reduce unnecessary detention of defendants who do not appear
to be risks for non-appearance. E.g., STEVENS H. CLARKE, JEAN L.
FREEMAN, & GARY G. KOCH, THE EFFECTIVENESS OF BAIL SYSTEMS: AN
ANALYSIS OF FAILURE TO APPEAR IN COURT AND REARREST WHILE ON
BAIL (1976); CHRIS W ESKRIDGE, AN EMPIRICAL STUDY OF FAILURE TO
APPEAR RATES AMONG ACCUSED OFFENDERS: CONSTRUCTION AND
VALIDATION OF A PREDICTION SCALE (1978); RICHARD R. PETERSON,
PRETRIAL FAILURE TO APPEAR AND PRETRIAL RE-ARREST AMONG
DOMESTIC VIOLENCE DEFENDANTS IN NEW YORK CITY (2006); QUDSIA
SIDDIQI, ASSESSING RISK OF PRETRIAL FAILURE TO APPEAR IN NEW YORK
CITY: A RESEARCH SUMMARY AND IMPLICATIONS FOR DEVELOPING
RELEASE-RECOMMENDATION SCHEMES (1999). In this study, however,
we look at failure to appear for the initial hearing. This has
become a topic of interest because of the high failure-to-appear
rates seen for misdemeanor offenses across the nation. See infra
notes 5-7.
5. See, e.g., Warren Davis, Should Georgia Change Its Misdemeanor
Arrest Laws to Authorize Issuing More Field Citations? Can an
Alternative Arrest Process Help Alleviate Georgias Jail Overcrowding
and Reduce the Time Arresting Officers Expend Processing Nontraffic
96 Court Review - Volume 48](ViewImageLocal?handle=hein.journals/ctrev48&div=20&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
An Experiment in the Law: Studying a Technique to Reduce Failure to Appear in Court
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most