Fixing the Called and Failed Problem: A Modest Proposal

WRAL’s Amanda Lamb has a report on the cost and hassle created by missed court dates: when defendants fail to come to court, the judge orders that they be Called & Failed by the Deputy, and an Order for Arrest is issued requiring law enforcement to track down and arrest the defendant.

Called and Failed

According to the report, roughly 15 percent of defendants on a given day fail to show to court. A significant number of those missed court dates are rectified by attorneys or defendants coming to court soon after the missed court date to either request a new court date, or to resolve the case before an Order for Arrest can be executed.

However, certainly thousands of orders for arrest are executed each year for missed court dates, and this does increase the cost and inefficiency to the whole system:

  1. The cost to re-arrest
  2. The cost to the court system of re-setting court dates

  3. The cost to the witnesses (especially civilian witnesses) of coming back to court
  4. General paperwork duties associated with re-calendaring cases

The bottom line is that people should come to court. And when individuals miss court dates, assuming they have willfully failed to come to court, they should be held accountable.

But, in the aggregate, it’s worth looking at the structure of the system and asking: “Are the rules, practices, and structural components of the system such that they result in larger numbers of people being called and failed?”

And, if the system is designed in such a way that it increases the number of daily failure to appears, then maybe we need to look at structural changes to lower the inefficiency of the system (while still not excusing people who simply don’t come to court because they want to evade the process.)

Designing a System to Reduce Called and Faileds

I had the following exchange with Amanda Lamb on Twitter yesterday:

You might ask: what do pleas have to do with failure to appears?

The Wake County court system is clogged, and adding 20 more judges, 20 more prosecutors, and 20 more public defenders will not solve the problem.

There are simply so many new charges each day that the new attorneys and judges would soon be overwhelmed.

So what can be done? First, encourage cases to be resolved quickly. Failures to appear increase the more people are forced or encouraged to wait for a resolution of the matter. Plea deals are the life blood of an adversarial system.

Introducing “improper equipments” back into Wake County would allow traffic lawyers to get rid of a backlog of such tickets. Being generous with prayer for judgments continued to allow people to reduce costs and save licenses would encourage defendants to resolve matters quickly.

This is not to say every traffic ticket should get a PJC or an improper equipment. Some cases are bad, including some traffic tickets.

But court resources and prosecutorial efforts should be focused on identifying those cases, and punishing them appropriately.

The adage, “when every problem is viewed as a nail, then every solution is a hammer,” results in a court system where defendants and defense lawyers avoid the hammer by dragging out cases.

Speedy Trial Statutes and Honoring Local Rules

Local rules in Wake County encourage misdemeanor cases to be resolved within four months. This almost never happens in the case of DWIs, where defense lawyers push cases off into the future, and prosecutors are so swamped with DWIs that they can’t try cases in a timely fashion and so cases are routinely marked “not reached.”

Focusing on the goal of resolving cases within 120 days would reduce the time spent on cases, the number of court dates, and the chance for failure to appears.

In addition, creating a plea option for DWIs would allow defense lawyers to advise clients that they should “take a plea” where there is little chance of winning, because the cost of not pleading guilty is substantially worse.

When the cost to the accused of going to trial, and the cost of plead guilty are substantially the same, then it makes sense to go to trial a lot more often than it otherwise would be.

A necessary part of an early plea option for a DWI would be the ability to substantially save a client’s license in a first time DWI, even with a high alcohol blow. And it might even allow clients to enter into a kind of a deferral program whereby successful completion would result in much reduced penalties. The State could protect its records by forbidding expungements in such cases, so that if the person did get a second DWI, a record would exist of the first.

And speedy trial statutes, especially in misdemeanor appeals and in Superior Court, would avoid the problem of years old cases where defendants can go missing.

A Better Computer System

North Carolina has been developing a new computer system, CJLEADS. This system needs to be extended in some fashion to defense attorneys. Bondsmen, after all, can get cheap and easy access to ACIS.

Importantly, as is true in other states, such as Florida or Tennessee, once an attorney becomes the attorney-of-record in a case, his name should be recorded in the computer system so that the attorney can see all cases in which he has made an appearance.

The ability to track attorneys’ clients’ court dates would also help reduce called and failed.

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Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.