Identifying and Addressing the Real Barriers to Appearing in Court
- Courts in the United States have traditionally tried to incentivize people to meet their court dates by imposing harsh penalties for nonappearance. But that view mistakes the real reasons people miss court.
- Overwhelmingly, people do try to meet their court obligation. The reasons they miss have more to do with lacking resources, and for reasons tied to flaws inherent in the criminal legal system—fear of an unknown process; fear of being jailed; or an expectation that they will be treated unfairly by judges, prosecutors, and even their own lawyers.
- With this more nuanced understanding of the barriers to court appearance, the legal system can implement solutions to get people to court that are more effective and compassionate than arrest warrants and jail.
We have all missed appointments with an emphatic apology but minimal or no further penalty. Yet missing court for even a low-level offense can carry devastating consequences: arrest, jail time, and further loss of freedom while awaiting trial. What is increasingly regarded as an “old-guard” law enforcement approach assumes that people miss their court dates to intentionally evade their legal obligations, and therefore the threat of punishment should deter people from such behavior.
But behavioral science reveals an entirely different story. It’s less about “intention” and more about the complexities of living in 21st-century America: those with less wealth, resources, and power face more challenges to successfully appearing in court.
Our recommendations, listed here, include practices grounded in procedural justice and principles for applying behavioral design in contexts of chronic scarcity. Below are three recommendations we made for Harris County; we hope they will serve as a model for any court struggling with nonappearances:
1. Fewer required appearances for the court user
This is a common experience of American courts: court users (i.e., those charged) waiting, often for hours, only to have their case called, the lawyers report progress (or lack thereof) to the judge, and the case gets rescheduled. The fact is that court users do not need to be present at the majority of court dates. Requiring their appearance (and thus increasing the chances of a missed date) can unnecessarily impede the process. Instead, courts could require users to appear (physically or virtually) only at arraignment, or any dispositive hearing, while their lawyers continue to do their jobs at the majority of court dates.
2. Improved court communications and reminders
Most court documents people receive (release forms or notices of next court date) have been designed for court processing, not for court users. We can help courts, like Harris County in a related project, redesign their forms with a behavioral lens to help people better understand, remember, and go to court dates. Additionally, courts can send text message reminders with behaviorally informed language proven to improve appearances.
3. Video clarifying the journey of a case
Many people do not understand what the court process entails, and under the threat of criminal charges, jail, and fines, court users report feeling intense fear. Many users had no idea what to expect at “arraignment,” mistakenly assumed they could be sent to jail or be forced to plead guilty or pay fines that day, and had nowhere to find clarifying information. A short, informative, engaging video about the arraignment process could reduce fear, clarify the process, and increase first appearances. It could be shown when people are booked and awaiting release and also sent as a link with the court text reminder.
Our complete findings and recommendations are presented in our report “Navigating the real-life challenges of appearing in court.” You can read an overview of our recommendations in the project brief.
Our research directly contradicts the assumption that people intend to miss court and therefore seriously calls into question the effectiveness of punishment as the sole solution. We urge courts to start with the premise that court users want to meet their legal obligation to attend court but need help with known barriers that can get in their way. Courts will need to address these barriers (fear, expectation of unfairness, scarcity) in addition to well-known logistical barriers (transportation, childcare, work schedules) in their efforts to improve court appearances.
Interested in learning more about this work? Reach out to us: firstname.lastname@example.org.