An FTA may trigger a bench warrant for the defendant's arrest and impair their eligibility for bail and pretrial release in subsequent proceedings.
The Judiciary Act of 1789, the first federal framework governing pretrial detention, did not single out FTAs for punishment but decreed that there should be sanctions for "all contempts of authority".
[1][2] Specific penalties for FTAs emerged on the heels of the federal government's campaign to prosecute Communist leaders under the Smith Act of 1940,[3] which made it a crime to "knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States".
[4] After the Supreme Court affirmed the convictions of eleven Communist leaders under the Smith Act in Dennis v. United States, four of the defendants fled in July 1951.
In the absence of an indictable offense of bail jumping, defendants were able to buy their freedom by forfeiting their bonds and taking the risk that they could go unapprehended.
[6] Lawmakers saw heightening the penalties for FTAs "as a means of enhancing the effectiveness of the bail jumping offense as a deterrent to flight.
[17] Not all mental pressures satisfy the uncontrollable circumstance requirement; courts have held that only something as serious as threats of significant bodily harm or death can excuse an FTA.
[17] The prospect of prosecutorial reprisal, fear of harassment, and loss of faith in the criminal justice system generally do not amount to uncontrollable duress.
[17][18] Courts have dismissed claims based on fears of deportation[19] and a defendant's desire "to make a political statement or engage in protest activity".
[20] The legislative history for the federal statute indicates that the affirmative defense should only apply in extreme circumstances: "for example, a person is recuperating from a heart attack and to leave his bed would imperil his life, or, after he had made careful plans for transportation to the court house, his vehicle breaks down or unexpected weather conditions bring traffic to a halt.
[28] In Missouri, a "resident charged with a moving traffic violation" will have their license automatically suspended for failing to appear in court when required.
[39] Critics argue that policymakers define "failure to appear" too broadly, conflating people who intentionally flee the jurisdiction with those who miss their court dates due to forgetfulness or logistical difficulties.
[41] One scholar has proposed breaking FTAs into three categories: "true flight" (intentionally fleeing the area); local absconding (remaining in the jurisdiction but refusing to come to court even if reminded); and low-cost non-appearance (failing to appear for reasons besides avoiding justice).
[42] Scholars, activists, and practitioners have criticized federal and state laws for operating on the mistaken assumption that most FTAs reflect a conscious decision to abscond.
Not all individuals who receive a traffic ticket or summons for a minor infraction realize that not attending court can lead to a warrant for their arrest.
The most recent data available from the Bureau of Justice Statistics demonstrate that 83% of felony defendants will never miss a court date.