Violation of Bail Reform Act

It is against the law in Washington, D.C. to willfully fail to appear before a court or judicial officer after having been released with notice to return.  D.C. Code § 23-1327(a).  In other words, you can be criminally charged and punished for missing a court date.

If the underlying offense was a felony, a conviction under this statute is punishable by not less than one year and not more than five years and a fine of up to $12,500.  Id. If the underlying offense is a misdemeanor, the maximum penalty for this offense is incarceration of up to 180 days and a fine of no more than $1,000.  Id.  Although the period of incarceration can be suspended (that is, not imposed), this offense carries a minimum sentence of 90 days.

The specific elements of the offense are as follows.  First, the government must prove beyond a reasonable doubt that the defendant was released pending trial or sentencing.  Second, it must establish that the defendant was required to appear in court on a specified date or at a specified time.  Third, it must prove that the defendant failed to appear.   Finally, the government must prove that the failure to appear was willful.  Foster v. United States, 699 A.2d 1113, 1115 (D.C. 1997).  

Any failure to appear after notice of the appearance date shall be prima facie evidence that such failure to appear was willful.  D.C. Code § 23-1327(b).  This is a “permissive inference, not a presumption.”  Trice v. United States, 525 A.2d 176, 182 (D.C. 1987).  The defendant’s intent can be inferred from the surrounding circumstances.  Id. at 179.  

A violation of the Bail Reform Act (BRA) has traditionally been viewed as a general intent offense.  Addressing this issue directly in Patton, for example, this Court noted that only proof of general intent is commonly required in public welfare or regulatory cases: “the commission of the act itself itself implies the requisite intent.”  Patton v. United States, 326 A.2d 818, 820 (D.C. 1974).  The “lack of an evil state of mind does not exculpate a bail jumping defendant.”  Id.  

The Court affirmed this holding in Trice: “a specific intent to violate the law is not an element of the offense of bail jumping.”  Trice, 525 A.2d at 181.  Distinguishing between common law crimes of moral turpitude (malum in se) and statutory/regulatory crimes (malum prohibitum), Trice held that, to “establish willfulness in a bail jumping case, all that the government must prove is that the defendant’s failure to appear in court when requested was knowing, intentional, and deliberate, rather than inadvertent or accidental.”  Id. 

It is therefore noteworthy that in this Court’s most recent holding with respect to the Bail Reform Act, Evans v. United States, 133 A.3d 988 (D.C. 2016), the Court did not address the issue in the body of the opinion.  The issue was instead left to a footnote.  Id. at fn. 2.  Such an omission could be attributed to this Court’s movement away from the antiquated general intent/specific intent paradigm.  See Buchanan v. United States, 32 A.3d 990, 1000-01 (D.C. 2011)(Ruiz, J., concurring)(“There is no opportunity better than the present to reiterate the dubious value of rote incantations of the traditional labels of ‘general’ and ‘specific intent’ to the different mens rea elements of a wide array of criminal offenses”).