By Lindsey Wylie JD, PhD

Failing to Appear
Missing court has significant costs to individuals and the courts alike. While many assume defendants who fail to appear (FTA) to court are convicted felons evading the law, nonappearance occurs for many reasons and is more common in pretrial misdemeanor cases. As a result of such misconceptions, strategies have traditionally included reactive and punitive policies like issuing warrants to decrease failing to appear (FTA) rates; however, these often generate cumulative costs to individuals and the courts.

Alternatively, proactive pretrial practices rooted in procedural fairness may increase appearance rates, while also improving how individuals perceive courts pretrial agencies. Procedural Justice research indicates that perceptions of fair procedures predict compliance with legal institutions’ rules.ⁱ And when practices are transparent and encourage participation, individuals perceive the agency as being more procedurally fair. ⁱⁱ

Court and pretrial agencies may increase perceptions of fairness through pretrial intake practices and other forms of written communicationⁱⁱⁱ guided by four central features of interactions with legal professionals:

i. Whether individuals were treated with dignity and respect;
ii. Whether individuals were given voice;
iii. Whether the decision-maker was neutral and transparent; and
iv. Whether the decision-maker conveyed trustworthy motives.

Procedural Fairness and Court Reminder Programs
Acknowledging the reasons individuals FTA are akin to why they miss doctors’ appointments—forgetfulness and scheduling— some courts and pretrial agencies have embraced strategies to remind individuals about upcoming hearings. The effectiveness of reminders at improving FTA rates, however, has depended on several factors: offense severity, defendant demographics, rurality of the court, as well as perceptions of the court.^iv Illustrative of this, an experiment in Nebraska with postcards significantly reduced FTA, and follow-up surveys found perceptions of institutional confidence, procedural fairness, and trust in the courts were associated with court appearance. The postcard reminders in this study were most effective for individuals with misdemeanors who had low trust in the courts.^v

Although many local and state jurisdictions have implemented some form of text message reminder system, questions remain about the best way to design pretrial communication practices, including the most effective message content, as well as how frequent reminders should be sent and the schedule for sending them.

Practitioner Research Demonstration Project
In 2017, Kentucky implemented text court reminders to replace live calling, which automatically sends individuals who opt-in to the reminder program text message reminders two days and one day before court hearings. To provide evidence for the best message content and frequency of reminder, the NCSC and Kentucky conducted a series of practitioner led research projects to design a more procedurally fair court text reminder program.

First, we analyzed court and pretrial administrative data before and after implementation. Findings revealed few disparities across demographic groups on who opted to participate in the reminder program and whether text messages were successfully sent (i.e., wrong or unworking phone numbers). We concluded the court reminder program itself resulted in fair access to most populations, except for those unhoused. Yet, there were gaps in the effectiveness of reminders on decreasing FTA rates. While there was no significant impact of implementing text reminders on FTA rates statewide, an interaction effect revealed text reminders improved FTA rates in suburban counties, but not in rural counties.

Next, we assessed the practice-as-usual (PAU) process and text message content to identify opportunities to increase features of dignity and respect, voice, neutrality and transparency, and trustworthiness in communication.

In interviews with 30 local legal professionals, common themes emerged around individual barriers to court appearance, such as lack of transportation and avoiding court due to willingness or avoiding jail. To better understand the perspective of individuals affected by FTA, Kentucky pretrial officers collected the reasons individuals received an FTA in the past during their pretrial intake. In contrast to legal professionals, of the approximate 500 individuals in the sample, most placed emphasis on the unintentional nature of missed court appearances.

The four most common reasons cited included: forgetting the court hearing date (30%), transportation problems (12%), confusion about the court hearing (10%), and health issues (10%). Additional responses included family or childcare issues, scheduling conflict with work or another appointment, and being detained elsewhere. While transportation and health issues were primary reasons for past FTA, they are generally issues beyond the court to address. By applying simple changes to their PAU in accordance with procedural fairness, courts and pretrial agencies may reduce confusion and assist individuals with better plan-making to improve court appearance.

Following themes identified locally in Kentucky and to increase perceptions of procedural fairness, we made the following recommendations:

• Redesign the message content to reduce legal jargon and replace it with plain language and link to the online docket calendar.
• Include a behavioral nudge that prompts individuals to record the hearing date in a planner or their phone.
• Add an earlier text message seven days before a court hearing so that individuals can more reasonably make a plan to change other appointments, take time off work, arrange transportation or childcare, or even contact the court to ask for another court date.

Currently, we are collecting data to test these recommendations in five pilot districts and findings will be available on the NCSC website.

i e.g., Tyler, T. R. (1994). Psychological models of the justice motive: Antecedents of distributive and procedural
justice. Journal of personality and social psychology, 67(5), 850.
ii Ruder, A. I., & Woods, N. D. (2020). Procedural fairness and the legitimacy of agency rulemaking. Journal of Public
Administration Research and Theory, 30(3), 400-41
iii Saba, E.S. et al. (2021). Translating Research to Practice: Implementing Procedural Justice in Pretrial Systems.
iv e.g., Bornstein, B. H., Tomkins, A. J., Neeley, E. M., Herian, M. N., & Hamm, J. A. (2013). Reducing courts’ failure-
to-appear rate by written reminders. Psychology, Public Policy, and Law, 19(1), 70.; Foudray, C. M., Lawson, S. G., &
Lowder, E. M. (2023). Jail-based court notifications to improve appearance rates following early pretrial
release. American Journal of Criminal Justice, 48(3), 656-676.
v Bornstein, B. H., Tomkins, A. J., Neeley, E. M., Herian, M. N., & Hamm, J. A. (2013). Reducing courts’ failure-to-
appear rate by written reminders. Psychology, Public Policy, and Law, 19(1), 70