Our nation’s courts are among the oldest institutions in this nation of laws, and their many distinct, disjointed, and undesirable systems are part of that heritage. So what is thestate of criminal history information in this country? How does a loss prevention or human resources professional designing a background screening program develop an appropriate strategy for criminal history searches?
To explore the first question, we will take a look how criminal history information is housed in this country, and how mistaken impressions become policy.
The FBI National Database
The most famous and misunderstood non-source is the FBI database, the National Crime Information Center (NCIC). Manysecurity professionals, having come from local, state, or federal law enforcement, call upon friends and colleagues who still have NCIC terminal access when they need criminal history information. Sometimes, this may be a display of insider power intended to awe those who do not have a golden Rolodex of contacts. But most times, it is simply a federal crime.
FBI audit and compliance programs are getting better and better with the government stepping up prosecution of offenders. By law and by compact with the states who contribute information, NCIC data is not available without permissible purpose and legislative authority, such as has been granted to banks and securities dealers. It is usually not an option for theethical and law-abiding professional.
Even for those who are currently sworn law enforcement officers, improper use of NCIC will lead to prosecution. Recently, an elected sheriff was charged with a felony for using NCIC to do background checks on his political opponents and their supporters.
But don’t be concerned about lack of access. Even for those with legislative authority, the use of this data is rife with problems. The NCIC was originally intended to serve as a law enforcement source of intelligence. It does that well and is a credit to those who maintain it. Reporting of records to the NCIC, however, is dependent on the states or other courts forwarding the data. It is often not current (as much as two years behind for some states), and rarely has current disposition information. Generally, an NCIC search is a beginning — but not an end. NCIC users understand that, but many employers do not.
So if NCIC is not an option, why not turn to the individual states who supply the national database? Unfortunately,there are issues with these repositories as well.
In many states, the state criminal history repository was, again, designed as a law enforcement intelligence tool.The data housed is often late, incomplete, or simply not reported from the originating court.
To illustrate this point, consider the experience of one Florida retailer who Florida employer to search the department of Law Enforcement for Florida applicants relied solely on the Florida Department of Law Enforcement state repository for criminal history checks. The company hired an employee who had no record in the state repository. Unfortunately, this employee subsequently assaulted a customer. The customer’s attorney placed one phone call to the court in the employee’s county of residence that revealed a significant history of assault.
The general rule of thumb for most negligent hiring cases is “if you could have known, you should have known.”This retailer learned an expensive lesson about the deficiencies in state repositories. I have seen similar examples in most state repositories.
Having said that, Florida recently passed legislation to provide some protections when an employer incorporates a state repository search in its hiring program that behooves a Florida employer to search the department of Law Enforcement for Florida applicants.
Turn Around Time
Let’s run some numbers on state criminal history searches. In the fifty states plus the District of Columbia there are forty-two central criminal record repositories. Of these forty-two, half of the states want the request accompanied by a signed release. Eight of those twenty-one states, Alabama, Minnesota, New Hampshire, New Mexico, Ohio, Pennsylvania, Virginia, and Wyoming, require a special notarized release. Four states, Delaware, Nevada, Ohio, and West Virginia, require a signed release plus a completed ten-digit fingerprint card or a thumbprint. These requirements add significantly to the cost, time, and logistical complexity of accessing records.
Of the remaining twenty-one states, only eighteen have an average turn around time of four days or less. Some states will only accept requests by mail and average two weeks turn around time. Some have stretched out as long as 60 days, either due to backlogs or a pre-notification requirement of the consumer before any records will be reported out.
In addition to the timelessness of the reporting, what about other costs? State repository fees range up to $25 per name, averaging $15 paid directly to the state agency. This, of course, does not include any handling fee for your public record provider or the cost of fingerprint collection when required. Fees are subject to change without notice and are expected to increase along with all other costs.
For the moment, let’s assume that time, money, and logistical obstacles are not an issue. Just how reliable is the state repository data, anyway? Although the potential for statewide coverage is attractive, as is the fact that both felonies and misdemeanors may be included, experience indicates that the quality of the reports from these agenciesis substantially lower than for records obtained directly from the originating courts. Remember, the state repository data is second-generation information gathered from courts and police departments statewide, with little consistency in format or language. There are sometimes problems in matching a rrest data with disposition data since they come from different sources at different times.
Even in those states where there is a statutory requirement for the various criminal justice agencies to report records to the state repository, we have found both significant reporting delays and in many cases known records having never been reported to the repository at all!
An administrator with one state repository who asked not to be identified stated that he estimated thatonly about 40 percent of all criminal data from the police and criminal courts was actually ever reported to the statecriminal record center. Further, he thought this was pretty typical compared to other states!
In 1993, the Defense Personnel Security Research Center (PERSEREC) published a white paper authored by Richards Heuer entitled “Crime and Security Risk.” The study was commissioned by the Director of the CIA and was one in a series evaluating various criteria for adjudicating security clearances. This paper evaluated the condition of criminal records in the U.S. and determined that both the NCIC and various state repositories were flawed by reporting problems and that the only search exercising appropriate due diligence was one done at the originating courts. Unfortunately, noupdated study has been published. But based on current experience, I believe a similar study today would yield the sameconclusion.
With all these attendant problems, is there a place for a statewide search in the pre-employment background process? Perhaps. A statewide search is to a court of origin search as a shotgun is to a rifle. A shotgun will disperse lotsof little pellets covering a wider area on a map, but will also leave a lot of target area un-hit. With a rifle, on the other hand, one can be reasonably assured of hitting the target exactly. If having the widest possible coverage is an objective, while recognizing all the holes in coverage, a state repository search achieves that objective.
Courts of Origin
Always mindful of the holes inherent in state repository searches, I would recommend that, as a minimum, an employer consider adding a search of the county-of-residence superior court to ensure that those holes do not create major liabilities in states other than Florida. If the objective of any background search is more than merely“papering a file,” searches in those courts of origin are a critical element.
What are courts of origin?
County Superior Court. The most commonly searched state court is the county superior or felony-level court, which is usually located in the county seat. This court of origin contains the records for the felony-level cases thatoriginate in that jurisdiction. A complete county felony search at that location will reveal the following:
- Felony charges that resulted in a felony conviction,
- Felony charges that were pleaded down to a misdemeanor conviction,
- Bench warrants issued by that court, and
- Cases that are still pending final action for all cases and convictions that have not been sealed or expunged.
Every rule has exceptions. There are jurisdictions in which the felony-level court is actually an independent citycourt, or in which there are split divisions requiring at least two searches at different locations to complete acountywide felony search.
Police officers are trained to “hang from the highest branch on the tree,” meaning that if there is any discretionregarding whether an offense is classified as a felony or misdemeanor, always arrest for the most serious felony and letthe courts sort matters out. Not only does this practice result in many more cases being found in the felony courts,but it also helps unclog our courts system by affording reasonable grounds for plea-bargaining to avoid lengthy and expensive trials. Many felony cases, therefore, end up as misdemeanor convictions.
Municipal Courts. Misdemeanors are a source of confusion for many. Misdemeanors are defined in different ways by different states, but to simplify somewhat, they are generally those offenses that can result in fines of less than $1,000 or jail terms of less than one year in a county facility. The courts that hear misdemeanors are generally municipal courts, and they do not always share space, indices, or administration with the courts that adjudicate felonies. This means that there is often not a one-stop shop for a countywide search for all felonies and all misdemeanors for an applicant.
There are three conditions under which misdemeanors will be revealed. First, a search of the county felony courts will also reveal, as noted above, those misdemeanor convictions resulting from an original felony charge. (Note that in some courts, these are the only misdemeanors that will be revealed.) Second, there are many courts that are unified to the extent that either all the case activity can be searched in one index, or at the least, there is an index for all misdemeanor courts in that county co-located in the same county seat courthouse with the felony court. Third is a circumstance very similar to the second, but only the misdemeanors from that municipal court serving the county seat can be researched at that court.
What all this means is that the requestor, who truly wants or needs misdemeanors for a particular municipal jurisdiction, should specify that jurisdiction in the request, or the search will be done only at the county seat, with the possible range of results above.
In the case of misdemeanor courts, the confusion is not only with the requestor. Many of the public recordaccess difficulties come in these courts. As in all public sector jobs, tax cuts combined with population growth haveforced these courts to do more with less. Looking for ways to ease that burden, periodically one of these courts will devise new and onerous or restrictive policies to reduce their research. The best examples of the worst are found in New Jersey, pockets of Kentucky, and California, which flares up occasionally. In New Jersey, many municipal courts simply refuse to accept research requests in person or at all.
Federal Courts. The next most common type of criminal court of origin is the federal district court. These courts hear cases involving violations of federal law. There may be only one to a state, or there may be several. These courts can be searched in person or by using a remote access. But, however they are searched, they represent a problem forthe user. Since these courts rely very heavily on fingerprint identification, it is very difficult to get anything other than a name and possible address match with tools other than fingerprints. That said, there is no substitute for a federal district search if that search is required for a reasonable due diligence to fill a position.
The Myths and Realities of Criminal History Research
This search is a requirement for those employers authorized to use fingerprints, such as registered securities dealers, as the fingerprint search against the NCIC will not contain the most up to date adjudication information for a given case. For the employer with a tighter budget, a federal district search for lower level positions, in the absence of a legal requirement or specific risk avoidance objective, may be overkill. While it will reveal charges not found in any state search, it is likely that the applicant will be no stranger to the state courts.
Court Research. For each of the sources of criminal history noted above, there is no single access method. For most, a research agent is still required to physically visit the court — unless, of course, you can afford the average three- to four-week turn around via mailed requests.
Once at the court, research is performed a variety of ways. In some courts, a local public access terminal is available that can provide not only index information, but also complete case information that can be transcribed. Inother courts, the public access terminal may only be a name index. As the public may not access physical court files directly, name matches must be brought to the clerk of court staff, who will research them as time permits and provide the results when they can get to them. In other courts, searches must be done by hand in old ledger books orpaper indices. In still others, the automated case management software has been in place for less than seven years, so searches must be done using a combination of computer terminal access, old ledger books, and reliance on court services staff.
Roughly 10 percent of all searches may be done using remote access tools directly into court systems, but this doesnot always mean faster or cheaper. Even aside from some of the specialized hardware or software required by somecourts, there are connectivity issues and poorly designed systems that dump page after page of docket activity making it a“Where’s Waldo?” search for the actual identity, charges, and disposition data.
There are still other remote systems that serve only as pointer files and still require the services of a live agent andcourt services staff to complete the research.
Adding another level of complexity to all the above is the fact that each state has its own, unique criminal code, andeach court within each state may have its own procedures for recording and storing information. There are about 3,200 counties in the U.S., and about 10,000 different courts. Some days it seems that all they have in common is that they are understaffed, overworked, and uninterested in your problems.
Building a Background Check Strategy
With an understanding of the challenges of both online and court research, how does one determine the appropriate scope for a criminal history background? To answer that question, there is one more concept that must beunderstood. That is the concept I call “Managed Risk and Criminal Histories:”
Hiring employees creates potential risk to other employees, the public, and to the assets of the employer. Past behavior is one of the best predictors of future behavior. Any position being filled must be evaluated to understand those criminal behaviors that add risk. Because there is no useful single nationwide repository of criminal history and since it is unreasonable to conduct a search in every court in the country, a background program should be designed to cover both a reasonable period of time and a reasonable geographic scope to manage and mitigate those risks.
Simply stated: You can’t do it all, so what can you do?
I am going to set down some guidelines based on the experience of clients around the country. Take theseguidelines and discuss them with legal counsel to see how they may best work within the context of your company and your employees.
A Complete Application. Every criminal history check should begin with a complete application. This cannot be emphasized enough. That application should contain a statement of truth in which the applicant acknowledges that all information is true and complete, without omissions, understanding that the employer has the right to choose not to hire or to terminate if they find out otherwise. This application should ask the applicant to self-report jobrelated convictions. (There are numerous state and federal laws addressing this section that can not be addressed here. Once again, consult with counsel.)
Be sure that the application has sufficient address history to cover the required depth of background discussed below. Also be sure that if you are using a third-party background company, you have a separate release and notification form signed by the applicant that meets Fair Credit Reporting Act (FCRA) standards. (Note that some courts require date of birth for an identifier, especially for common names, and the release is a good place to capture that and other identifying data).
Social Security Check. The next required tool is the social security number check done through one of the credit bureaus. This check serves three important functions.
First, it may help reveal a legal name change when additional names are associated with a number.Second, it serves to raise a red flag if (a) the applicant’s name is not associated with the entered number, (b) the number was issued by an unaccounted for state, or (c) the date of issue does not seem to match the applicant’s age.
Third, it will reveal up to a seven-year residence address history. This will be crucial in identifying courts to be searched that would otherwise be missed should the applicant have selective memory.
Criminal History Check. Now you would use a position risk analysis to decide how wide and how deep the search needs to be. The how wide is simply how many years of employment or residence addresses do you need to cover. The how deep is how many years back do you need to go in the court that you are searching. The standard for depth of search in a court is seven years back. Unless one has specific licensing or regulatory requirements to do otherwise, this should be your baseline. It is the how wide that will vary by position.
A very simple rule of thumb is to start with the current county of residence as the most basic and minimum search, and add to that as responsibility and risk increases.
Taking our rule of thumb, the following are reasonable guidelines for criminal history checks, along with thenumber of courts for budgeting. (When budgeting, remember that about 10 percent of courts charge statutory access fees ranging from $5 to $26. Your average cost of fees will vary depending on your applicant pool demographics, but in a true nationwide distribution, you would be safe planning $2 per search for access fees. Fees in New York state are especially high, and Los Angeles courts are $5 per name per search.)
- Entry-level position, no cash handling, very little or no customer contact, well supervised — A check of felonies and those misdemeanors indexed at the court of current county of residence, seven years deep. Average 1 court searched.
- Entry-level position, no cash handling, customer contact, well supervised — A check of felonies and those misdemeanors indexed at the court(s) covering three years of residence checked, seven years deep. Average 1.5 courts searched.
- Entry level position, cash handling, customer contact, well supervised — A check of felonies and those misdemeanors indexed at the court(s) covering five years of residence checked, seven years deep. Average 2 courts searched.
- Mid–management or key holder position — A check of felonies and those misdemeanors indexed at the court(s) covering seven years of residence checked seven years deep. Average 2.7 courts searched
- Unsupervised customer contact, such as delivery or repair person — A check of felonies and those misdemeanors indexed at the court(s) covering seven years of residence checked seven years deep, plus a sex offender’s registry check. Average 2.7 courts searched, plus the state registry.
- Upper-level management and purchasing positions — A check of felonies and those misdemeanors indexed at the court(s) covering seven years of residence checked in both county and federal district courts at least seven years deep. Average 4 courts searched.
Those hiring in metropolitan areas covering many counties might consider adding either additional contiguous counties or statewide checks, if available. Atlanta is one of the best examples of a city touching many counties, but it also has one of the hardest to use statewide searches.
Misdemeanor Checks. Not specifically mentioned in the search guidelines are the addition of misdemeanor checks. Law will require them for certain positions. For example, before a security company can arm a security officer, they must search toensure that there is not a misdemeanor conviction for domestic violence.
The Myths and Realities of Criminal History Research
Beyond legal requirements, some employers require a separate misdemeanor check of residences because they are concerned about behaviors that pose risks such as misdemeanor assaults, substance abuse, and theft convictions.
If your budget can support additional separate searches, by all means, add them to your search package. You willadd roughly two-tenths of a search to each felony search requested.
You may wish to evaluate the targeted misdemeanor search by doing a retrospective study on the results from those courts, not only in terms of hits, but also in terms of employment decisions made. You may find that, as so eloquently put by a Florida client: “The juice is not worth the squeeze.”
Identifying Information. Be prepared with complete identifying information when requesting your search, both to improve accuracy and to improve turnaround time. Typical requirements for a search are full name, date of birth, social securitynumber, maiden name and/or aliases, race, and sex. Puerto Rico searches require the mother’s maiden name, and some courts, like Los Angeles, use driver’s license as a good identifier. A current home address will be required for those repositories that automatically notify applicants of the results of the search, including Oregon, Kentucky, and North Dakota.
From Myths to Realities
This article represents the realities of accessing criminal history in today’s environment. Of course, times change and courts will continue to evolve. How quickly — if ever — criminal history will become available online is difficult to predict. Exercise caution and evaluate online opportunities so that you understand the data source and its limitations. We can expect more courts to offer remote access solutions to address their own needs of handling the growing volume of requests, but remember that not all on-line solutions or new case management systems pick up the minimum seven-year depth of history.
With this knowledge, your preemployment screening program can be designed to provide a reasonable hedge against the suits de jour of negligent hiring, retention, and supervision. There is no Lucy in the sky with data, but the diamonds of information to be mined can help you and your company protect employees and assets by matching each qualified applicant to the right job.