Improving communication around and awareness of critical court information through behavioral interventions, or "nudges," may be more effective at improving court attendance for low-level criminal offenses than threats of further punishment, a new study finds. The study involved redesigning New York City's court summons form. The results suggest that many failures to appear (FTAs) - and the millions of potentially unnecessary arrests warrants they generate - may not be due to an intentional contempt of court, but rather because existing policies do not consider human error. Each year, millions of U.S. citizens fail to appear in court for arrests or summonses related to low-level offenses. As a result of missing their court date, defendants are often held in contempt of court and warrants are issued for their arrest, which, in many cases, drastically heightens the severity of the original offense. While such punishment policies are designed to deter individuals from skipping out on an appearance, they assume that the defendants who do skip their court appearance do so intentionally. But what of those who fail to appear due to simple human error - those who forget or misunderstand the information they are given regarding their appearance? In these cases, policies that focus only on punishment may not be well-suited for reducing FTAs. According to Alissa Fishbane and colleagues, it may be more cost-effective - and humane - to improve how court information is communicated. Fishbane et al. explore this idea in a pair of large-scale studies from New York City. The first simplified court summons forms to better communicate the time, date, and location of court appearances, as well as consequences for not showing up to court; the second offered defendants who provided a phone number with a series of text messages throughout the week leading up to their court date, reminding them about key details about their court appearance, such as time and location. The findings show that the interventions reduced FTAs by 13% (redesigned forms) and 25% (text messages), respectively and led to 30,000 fewer arrest warrants over a three-year period. What's more, in lab experiments, Fishbane et al. found that laypeople, not criminal justice professionals, often regard FTAs as intentional, rather than accidental. Such beliefs could perpetuate political support for punitive policies rather than efforts to make critical court information more salient.
In a related Perspective, Issa Kohler-Hausmann offers a detailed evaluation of the study. "While it would be positive if many jurisdictions would adopt the practices described by Fishbane et al., much more radical interventions will be required to change the approach to penal and welfare policy in our country than cost-neutral behavioral nudges that everyone can agree on," writes Kohler-Hausmann. Here, Kohler-Hausmann argues that the opposing hypotheses Fishbane et al. present - that the high FTA rate is either explained by contempt for court or a lack of knowledge about one's legal obligations - aren't mutually exclusive. These competing hypotheses do, however, reflect cultural assumptions that those being summoned - largely low-income Black and Brown residents - are either deserving of compassion or lenience because they are oblivious, or undeserving because they are obstinate, rather than the myriad of other, more nuanced motivations that could cause an informed individual to choose not to appear in court. "I would respectfully disagree with the authors' assertion that our nation's punitive penal policies are 'built on an assumption that people intentionally weigh the costs and benefits' of illegal conduct," writes Kohler-Hausmann. "I would say they are built on the assumption that the people targeted by such policies... are undeserving of full and equal membership in our political community absent a positive showing of worthiness," she writes.