Law 360 on 03/24/2019 by Michael Phillis
“I was freaked out,” she said.
Olson described the text as a complete surprise and said she did not know if it was for her or someone in her family. But thanks to the text, she was able to reach a public defender, who told her it was a careless driving charge that Olson said was related to a traffic accident she was in earlier in the year.
Nothing had shown up in the mail about the court date and she would have otherwise missed it, she said. If Olson didn’t appear in court, a warrant would have been issued for her and she may have ended up under arrest and in jail for a short stint, according to Joelle L. Sather, who has represented Olson as a public defender.
Olson had previously been jailed for missing court appearances related to an earlier charge, but this time she benefited from a new initiative aimed at making it easier for defendants to show up to court.
Hennepin County, which includes Minneapolis, started the program in 2017. It reminds defendants of court dates with a text message: a buzz in their pockets to help get them through the courthouse door.
Similar programs have been spreading across the country. There are programs in Contra Costa County, California; Spokane County, Washington; Monroe County, Indiana; and New York City, among others. In Colorado, Tennessee and Massachusetts, legislation has been introduced to put some kind of text reminder system in place.
The reminders offer an alternative to punishment and address some of the complex reasons that people don’t show up that are not always as simple as a defendant deciding not to go, court officials and advocates say.
In the Hennepin County program’s first year, those who received the optional text and email reminders sent one day and three days before an appearance were about 30 percent more likely to show up, according to court data.
“It literally reminds you the day before,” Olson said. “So, even if you are going to bed and you forget then it is like, ‘oh … I do have court tomorrow.’ Then you know you have to go.”
A Friendly Reminder
New Jersey was an early adopter of using text messaging to remind jurors to show up in a program announced in 2013, said Bill Raftery, a senior analyst with the National Center for State Courts.
“It demonstrated proof of concept,” Raftery said.
Then Michael Brown was shot by police in 2014 in Ferguson, Missouri. A U.S. Department of Justice investigation into the police department there brought attention to its practice of issuing heavy fines and harsh penalties for things like failing to appear in court for low-level violations such as traffic charges.
“Coming out of Ferguson, you finally had the will, you had people saying we need to reduce failure-to-appears,” Raftery said. “Simply issuing warrants is not the answer. It is not a solution.”
Around the same time, New York City started discussing ways to improve the issue of missed court appearances, according to Justin Barry, the city’s chief clerk of the city’s criminal courts. New York officials were frustrated by a high failure-to-appear rate for low-level offenses: 41 percent of people summoned for low-level crimes skipped court in 2014, totaling 130,000 missed appearances that year.
The city brought in researchers from public interest group Ideas42 and the University of Chicago Crime Lab, who found text messages helped lower failure to appear rates for the study’s sample by 26 percent.
The study identified some likely core reasons people failed to show. Some were focused on their immediate worries such child care, which outweighed the theoretical consequences that might come later from failing to show. Some didn’t think their minor offense required them to appear. Others simply forgot.
Now, the text messages that the city sends to defendants reminds them of when they need to appear and that the consequences — likely an arrest warrant — for failing to show are worse than the fine they might receive in court.
The effects of a warrant after missing court can be devastating, said Jeanette Boerner, first assistant public defender in Hennepin County.
“Most people can survive one arrest,” Boerner said. “But what they can’t survive is the constant disruption into their lives.”
“Now I’m arrested, now it is another [two days in jail],” she added as a hypothetical example. “What if I get arrested on a Friday, now I’m not appearing until Monday. Where are the kids? Where do they go? It just pushes them back and back and back into not being able to move forward.”
Messaging platforms on the market include Uptrust, whose co-founder Jacob Sills says he was struck by a common problem: courts were conflating a defendant’s flight risk with bad attendance when they set high bail.
“What I kept seeing was people coming in and they had missed court dates, they were poor, and the judges and prosecutors were looking at them and saying ‘This person is a flight risk,’” Sills said. “And I was like, ‘Wait, this person has probably never left the state.’”
Spokane County, Washington, started in August using Uptrust’s program, which allows for two-way communication between clients and the public defender’s office. The technology is making a difference, according to Thomas Krzyminski, the director of the county’s public defender’s office.
“One of the attorneys came to me and said he was in court, his client was not standing next to him. He checked his email, saw that he had a response to the text where the client said ‘I’m in the hospital.’ He was able to say to the judge at that time, ‘My client’s in the hospital,’” Krzyminski said. “The judge said, ‘OK, we’ll reset this.’”
Sills said that while pricing can vary, integrating its software with a local government can cost around $20,000 and then there is a $2 fee for each client the system handles per year.
But the text reminders can ultimately save money for courts. For example, Hennepin County, which used a company called Integration Architects to incorporate its reminders with its court case management system, has estimated it has saved $1.7 million from reduced jail time alone.
The texts can also be an important backstop against bureaucratic problems like having the wrong mailing address on a summons form.
In Contra Costa County, California, summons were being sent by mail weeks or months after the initial incident. But if the address entered at the time of the incident was outdated, or included a typo, people wouldn’t know they were supposed to show up, according to the public defender’s office.
“This is a really common occurrence,” said Blanca Hernandez, an attorney in the county’s public defender’s office.
The text messages the county now sends have been a useful safeguard, according to Hernandez. People often are not trying to avoid their court date, but simply aren’t aware it exists because they never receive the notification in the mail.
No system is foolproof, and one problem with the text reminders can be collecting cellphone numbers.
New York City sends more than 2,000 reminders a month, but the rate of cellphone number collection is low; less than 10 percent of summons include them, according to the courts. Number are collected by officers when a summons is issued, and those who are stopped by police can be reluctant to provide a mobile number, according to Barry. The Police Department has provided training to increase collection rates, he said.
In Hennepin County, 54 percent of defendants were not reached by its reminder system that sends out texts and emails, according to court data. One reason defendants do not receive the reminders is because they have to opt in to the program and consent to the messages, said Sarah Lindahl-Pfieffer, a court administrator there.
Even with such hitches, reminder programs are likely to continue to expand around the country, said Raftery of the National Center for State Courts.
After the reminder program was launched in Hennepin County, Boerner said that in addition to lowering the failure to appear rate, it helped facilitate dialogue between public defenders and their clients.
Defendants who receive a text might call their public defender and ask what they should expect at court, Boerner said. She can then provide advice and address their concerns. It also means the conversation doesn’t have to happen in a hurry outside a crowded courtroom.
“I’m empowered with the information of knowing what my client wants,” Boerner said.
Krzyminski of Spokane County said the texts can also add a bit of humanity to the grind of the criminal justice system.
“A lot of thank-yous go on,” Krzyminski said. “And this isn’t a business that necessarily generates a lot of thank-yous.”