ACFE - Background Checks
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2006
INVESTING BEFORE THE LOSS: PREVENTION & DETERRENCEBACKGROUNDS: CHECK, DOUBLE CHECK, THEN RECHECK
When hiring employees, retaining a client, complying with know your customerprocedures or screening an executive, background checks should be commonplace. Youknow you need to do them. But what are the best and most efficient methods? Consider howoften to perform these checks, whether or not to outsource them, what information youshould review given your risk model and more.
BARRY J. NADELL
President
InfoLink Screening Services
Chatsworth, California
Barry Nadell is President of InfoLink Screening Services, A Kroll Company. InfoLink isthe west coast division of Kroll Screening Services, Nashville, TN a national provider ofemployment background screening, drug testing and physicals. He is a founding member andon the board of directors of the National Association of Professional Background Screeners(NAPBS) and the Association of Consumer Reporting Agencies (ACRA).
As the established industry expert on the legal issues of employment background
screening, he speaks nationally on the subject and has been a featured speaker at severalnational conventions to educate professionals in human resources, security and otherindustries.
Mr. Nadell has written many articles, has been quoted, has been featured on televisionprograms including The Bloomberg Report and ABC News with Peter Jennings, and hasbeen interviewed on more than 150 live talk radio programs.
A licensed private investigator in California, he is an associate member of the American,California State and Los Angeles Bar Associations specializing in labor and employmentissues and a member of many organizations.
In 2004, Barry Nadell was honored with the Excellence in Human Resources award fromthe SHRM affiliate PIHRA for his valuable contributions to the field of Human Resources. Inaddition, he has been an industry advocate in his state, California, and in DC on legislationrelating to background screening. Finally, he is the author of a new book: Sleuthing 101,Background Checks and The Law.
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NOTESIntroduction
State Department of Justice statistics for 2002 reveal that
6.7 million peoplewhich translates to one in every 32
adults-are either jailed or in prison, or released on probation
or parole. At least 95% of all state prison inmates will be
released from prison at some point. About 80% are released
under supervised parole. Recidivism is high; presently,
67.5% of all prisoners released are subsequently rearrested
for a serious misdemeanor or felony within three years.
At the end of 2002, State and Federal prison authorities had
under their jurisdiction 1,440.655 inmates; 1,277,127 of
these were under State jurisdiction and 163,528 underFederal jurisdiction. Midyear 2002, local jails held or
supervised 737,912 persons awaiting trial or serving a
sentence. About 72,000 of these were persons serving their
sentence in the community.
Unless you are diligent in performing background checks,
some of these convicted criminals could wind up working
for you, thus increasing the likelihood of violence in your
workplace, theft of property, and legal action taken against
you for negligent hiring liability.
Virtually every employer today is either considering doing
background checks on potential employees or already
performing them. Given the statistics on workplace
violence, that is hardly surprising.
Workplace violence currently claims two million victimsannually. Homicide is one of the largest causes of
workplace deaths for all employees and until 2002 was the
single largest cause of workplace deaths for women
employees today, not accidents, not medical conditions, but
homicide. Almost a dozen people are murdered in the
course of doing their jobs every week!
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NOTESHomicide is obviously the most extreme form of workplace
violence. However, we need to recognize that hostile
behaviors such as yelling or screaming, threatening
violence and fighting in the parking lot constitute
workplace violence as well.
More than just recognizing this, we need to do everything
in our power to prevent such behaviors from occurring.
It is important to note that a percentage of those who have
been convicted of a crime do get rehabilitated and deserve a
second chance working in society. Background screening is
not simply to weed out anyone and everyone with aprevious conviction from the workplace. Its purpose is to
provide critical information to review to make an intelligent
hiring decision. If you decide to do a background check,
stick to information that is relevant to the job for which you
are considering the applicant and verify all the information
provided by that applicant.
Background Checks Can Prevent Violence and Protect
Your Company As Well
The best way to prevent workplace violence is to perform
careful, legally correct and extremely thorough background
checks on all applicants for employment and eliminate any
applicant who is not a good potential candidate for the
particular position for which they are applying.
Background screening is a strategic step many
organizations are taking to hire the right person, ensure asecure workplace, reduce turnover, and minimize liability
for negligent hiring and retention. However, many
companies are unaware of current regulations and focused
business practices that can help them more expeditiously
meet their overall background screening needs.
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NOTESIn Background Checks and The Law, you will learn best
practices of employment screening for risk management
and better hiring decisions. You will have a complete
knowledge of the Fair credit Reporting Act, Federal
Updates to the FCRA, State Laws, and the FTC Staff
Opinion Letters giving you peace of mind that your
organization is fully compliant legally. You will learn what
products are available so that you can be sure that your
organization is accessing all the information that is
pertinent to making an informed hiring decision. You will
learn the pros and cons of new products to hit the market
and how to use the information obtained in your hiring
process. You will also learn how your employmentapplication can be your best and first defense against a bad
hire.
Simply put, you will understand the law, legal theory, and
more importantly, its practical application in your
workplace.
Negligent Hiring Liability
Employers can face liability for negligent hiring practiceswhen workers commit acts of violence
Source: Victims of Omission ABA Journal, March 1999
Background Screening: Return on Investment
Cost of Hiring
Lost Productivity when a Position is Vacant Cost of Recruitment Cost of Training Temporary Loss of Productivity of Co-WorkersCost of Termination
Cost of Theft/Shrinkage Cost of an Unproductive Employee until
Terminated
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NOTES Cost of Absenteeism Cost of Investigations Cost of Severance, Claims or Lawsuits
Federal Laws & Guidelines
The following laws and guidelines affect background
screening. All of these laws can be found in their entirety
at:
http://www.infolinkscreening.com/InfoLink/Resources/Leg
alIssues.aspx.
The Fair Credit Reporting Act Found at 15 UnitedStates Code Section 1681
Americans with Disabilities Act Equal Employment Opportunities Commission
Guidelines
Consumer Credit Reporting Reform Act of 1996 Consumer Reporting Employment Clarification Act of
1998
The Fair and Accurate Credit Transactions Act of 2003
Laws with Teeth
Consumer Credit Reporting Reform Act of 1996
604. [15 U.S.C. 1681b]
Certification from user: The person who obtains such
report certifies to the background screening agency
that:
It understands the laws and will comply with them Information will not be used to violate any Federal
or State laws
It has a permissible purpose for the report asrequired
Consumer Credit Reporting Reform Act of 1996
(15 U.S.C. 1681n, 1681o, 1681s):
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NOTES Penalties on those who do not comply include
actual damages, punitive damages, costs, and
attorneys fees.
In addition, civil and criminal penalties may apply.Permissible Purpose
Section 604 of The Fair Credit Reporting Act:
1. In response to the order of a court havingjurisdiction to issue such an order, or a subpoena
issued in connection with proceedings before a
Federal grand jury.
2. In accordance with the written instructions of theconsumer to whom it relates.
3. To a person which it has reason to believe:a. intends to use the information in connection
with a credit transaction involving the
consumer on whom the information is to be
furnished and involving the extension of
credit to, or review or collection of an
account of, the consumer; or
b. intends to use the information foremployment purposes; or
c. intends to use the information in connectionwith the underwriting of insurance involving
the consumer; or
d. intends to use the information in connectionwith a determination of the consumer's
eligibility for a license or other benefit
granted by a governmental instrumentality
required by law to consider an applicant'sfinancial responsibility or status; or
e. intends to use the information, as a potentialinvestor or servicer, or current insurer, in
connection with a valuation of, or an
assessment of the credit or prepayment risks
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NOTESassociated with, an existing credit
obligation; or
f. otherwise has a legitimate business need forthe information
i. in connection with a business transactionthat is initiated by the consumer; or
ii. to review an account to determinewhether the consumer continues to meet
the terms of the account.
g. Section 604(a)(3)(F) would provide apermissible purpose for a landlord
considering an application for a rental
apartment, or a merchant consideringwhether to accept a personal check as
payment for consumer goods or services. It
would not provide a permissible purpose for
an attorney in most litigation contexts. See
Comments 604(3)-4/5/6 in the 1990 FCRA
Commentary (55 FR 18816; 5/4/90).
h. In response to a request by the head of aState or local child support enforcement
agency (or a State or local government
official authorized by the head of such an
agency)
Definition of Terms
Consumer Credit Reporting Reform Act of 1996:
In general. The term consumer report means anywritten, oral, or other communication of any
information by a consumer reporting agencybearing on a consumers credit worthiness, credit
standing, credit capacity, character, general
reputation, personal characteristics, or mode of
living which is used or expected to be used or
collected in whole or in part for the purpose of
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NOTESserving as a factor in establishing the consumers
eligibility for Employment Purposes.
The term investigative consumer report means aconsumer report or portion thereof in which
information on a consumers character, general
reputation, personal characteristics, or mode of
living is obtained through personal interviews with
neighbors, friends or associates.
The term employment purposes when used inconnection with a consumer report means a report
used for the purpose of evaluating a consumer for
employment, promotion, reassignment or retention
as an employee. A consumer reporting agency is an organization
which, for monetary fees, engages in whole or in
part in providing information on consumers for the
purpose of furnishing consumer reports to third
parties.
FTC Staff Opinion Letter
United States of America
Federal Trade Commission
Washington D.C. 20580
6/9/98: LeBlanc
6/12/98: Slyter
Confirming: Private investigators and record search
firms are CRAs under the definition set forth in
Section 603(f); however individual researchers hired by
such firms are not CRAs Adverse action is a denial of employment or any
other decision for employment purposes that
adversely affects any current or prospective
employee.
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NOTESRules to Follow
Disclosure To Consumers For Consumer Reports
604(b)(2)
A. A clear and conspicuous disclosure has been madein writing solely of the disclosure, that a consumer
report may be obtained
B. The consumer has authorized in writingFTC Staff Opinion Letter
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580Bureau of Consumer Protection
June 12, 1998
Re: Sections 604 and 606 of the Fair Credit Reporting
Act
While we believe that you may combine the disclosure
and authorization (and include identifying information)
as you have in the draft form that you included with
your letter, we note that your draft disclosure includes a
waiver by the consumer of his or her rights under the
FCRA. The inclusion of such a waiver in a disclosure
form will violate Section 604(b)(2)(A) of the FCRA,
which requires that a disclosure consist solely of the
disclosure that a consumer report may be obtained for
employment purposes. Moreover, it is a generalprinciple of law that benefits provided to citizens by
federal statute generally may not be waived by private
agreement unless Congress intended such a result.
Brooklyn Savings Bank v. ONeill, 324 U.S. 697
(1945). We note that no authorization for a waiver is
contained in the FCRA; nor does the legislative history
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NOTESshow that Congress intended that consumers should be
able to sign away their legal rights under the Act.(1)
Accordingly, employers and other users of information
covered by the FCRA may not require consumers to
waive their rights under the law.
Disclosure To Consumers For Investigative Consumer
Reports 606
(a)(1) it is clearly and accurately disclosed to the
applicant that an investigative consumer report
including information as to his character, general
reputation, personal characteristics and mode of living,
whichever are applicable, may be made,
A. is made in a writing delivered, not later than threedays after the date on which the report was first
requested, and
B. includes a statement informing the consumer of hisright to request the additional disclosures and the
written summary of the rights of the consumer
prepared pursuant to section 609(c) [ 1681g];
FTC Staff Opinion Letter
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Bureau of Consumer Protection
H. Rowan Leathers, III, Esq.
2. Section 604(b)(2)(A) of the FCRA seems to require
that the consumer disclosure be in a document that
consists solely of the disclosure. With regard to this
requirement, is it sufficient that the disclosure be
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NOTESprominently set forth within an application for
employment, or must it truly be included on a separate
document?
The disclosure may not be part of an employment
application, because the language you quote is intended
to ensure that it appears conspicuously in a document
not encumbered by any other information. The reason
for requiring that the disclosure be in a stand-alone
document is to prevent consumers from being distracted
by other information side-by-side with the disclosure. A
disclosure that is combined with many items in an
employment applicationno matter how prominentlyit appearsis not in a document that consists solely of
the disclosure as required by Section 604(b)(2)(A).
FTC Staff Opinion Letter
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Bureau of Consumer Protection
Frank James
August 5, 1998
Re: Sections 604(b)(2) of the Fair Credit Reporting Act
Is it permissible for an employer to make a one-time
disclosure to applicants and current employees?
We believe, therefore, that a one-time disclosure may
be made and permission obtained from applicants and
current employees for the employer to obtain a
consumer report at any time during the application
process or during an employees tenure.
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NOTESAdverse Action
Step #1
Before taking any adverse action based in whole or in
part on the report, the person intending to take such
adverse action shall provide to the consumer to whom
the report relates a copy of the report; and a description
in writing of the rights of the consumer under this title,
as prescribed by the Federal Trade Commission under
section 609(c)(3) [ 1681g]
STEP #2 and #3
Wait a reasonable period of time and take adverse
action in writing.
2004 Federal Legislation
THE FAIR AND ACCURATE CREDIT TRANSACTION
ACT
1. Waives requirement for disclosure in connection
with an investigation
(i) of misconduct relating to employment
(ii) of compliance with Federal, State, or local
laws and regulations, the rules of a self-
regulatory organization, or any pre-existing
written policies of the employer
2. Credit investigation is excludeddisclosure still
required
3. Adverse Actionemployer shall disclose nature
and substance of communication upon which the
adverse action is based (excluding sources).
ACCURACY INFORMATION WITHIN REPORT
606 (d)(3) [15 U.S.C. 1681d]
Except for 613, A CRA may not disclose:
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NOTES Public record and that relates to an arrest,
indictment, conviction, civil judicial action, tax
lien, or outstanding judgment, unless
The agency has verified the accuracy of theinformation during the 30-day period ending on
the date on which the report is furnished.
INFORMATION WITHIN REPORT
606 (d)(3) [15 U.S.C. 1681k]
A consumer reporting agency which furnishes a
consumer report for employment purposes and
which for that purpose compiles and reports items
of information on consumers which are matters of
public record and are likely to have an adverse
effect upon a consumers ability to obtain
employment shall:
Maintain strict procedures designed to insure
that whenever public record information which
is likely to have an adverse effect on a
consumer's ability to obtain employment is
reported it is complete and up to date. For
purposes of this paragraph, items of public
record relating to arrests, indictments,
convictions, suits, tax liens, and outstanding
judgments shall be considered up to date if the
current public record status of the item at the
time of the report is reported
or
At the time such public record information is
reported to the user of such consumer report,
notify the consumer of the fact that public
record information is being reported by the
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NOTESconsumer reporting agency, together with the
name and address of the person to whom such
information is being reported.
State Laws
California
California has more comprehensive requirements when
background screening than any other state:
Disclosure must include:
Name of the Consumer Reporting Agency The fact that the information may bear on the
persons character, general reputation, personalcharacteristics, and mode of living
A summary of Section 1786.22 of the CaliforniaCivil Code (consumers rights)
A box the consumer may check to receive a copy ofthe background report*
* Also required in Minnesota and Oklahoma
Accuracy
Whenever a consumer reporting agency prepares a
consumer report, the agency shall follow reasonable
procedures to assure maximum possible accuracy of the
information concerning the consumer about whom the
report relates
What Information is Available
Criminal History County Court Search
3144 Counties, Over 15,000 Courts, Multiplestorage formats, docket books, computer
terminals, microfilm, remote dial access
State Repository National Criminal Database Search
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NOTES Most Databases only provide felony convictions Felonies represent about 27% of criminal filings Approximately 2.5% of searches have a felony
Source: GAP Inc. Fingerprinting
Felony Vs. MisdemeanorFelony Only States: Massachusetts*, SouthDakota
*Misdemeanors 5 Yrs 2nd+ offense
Arrest Records
GENERAL INFORMATION FROM BNA
Because members of some minority groups arearrested substantially more often than whites in
proportion to their numbers in the population,
making personnel decisions on the basis of
arrest records involving no subsequent
convictions has a disproportionate effect on the
employment opportunities of members of these
groups.
The courts and the commission accordinglyhave held that without proof of business
necessity an employers use of arrest records to
disqualify job applicants is unlawful
discrimination. Carter v. Gallagher, 452 F. 2d.
315 [3 FEP Cases 900] (C.A. 8, 1971); Gregory
v. Litton, 472 F. 2d. 631 [5 FEP Cases 267]
(C.A. 9, 1972).
Example: An employers policy of not hiringapplicants with arrest records had the
foreseeable effect of disparate impact and thus
violated Title VII because the employer could
show no business necessity for the particular
jobs at issue. (Gregory v. Litton Systems, CA 9,
1972, 5 FEP Cases 267).
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NOTES The EEOC has ruled that even if an employer
does not consider arrest information, the mere
request for such information tends to discourage
minority applicants and is therefore illegal.
WHAT MAY BE REPORTED?
California Labor Code 432.7
No employer, whether a public agency or private
individual or corporation, shall ask an applicant for
employment to disclose, through any written form
or verbally, information concerning an arrest or
detention that did not result in conviction, orinformation concerning a referral to, and
participation in, any pretrial or post-trial diversion
program, nor shall any employer seek from any
source whatsoever, or utilize, as a factor in
determining any condition of employment including
hiring, promotion, termination, or any
apprenticeship training program or any other
training program leading to employment, any
record of arrest or detention that did not result in
conviction, or any record regarding a referral to, and
participation in, any pretrial or post-trial diversion
program. As used in this section, a conviction shall
include a plea, verdict, or finding of guilt regardless
of whether sentence is imposed by the court.
Nothing in this section shall prevent an employer
from asking an employee or applicant for
employment about an arrest for which the employeeor applicant is out on bail or on his or her own
recognizance pending trial.
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NOTESCalifornia Fair Employment and Housing
Commission
Rules and regulations indicate that, it is unlawful for
an employer or other covered entity to inquire or seek
information about an applicant that concerns any arrest
or detention not resulting in conviction; any conviction
for which the record has been sealed or expunged by
court order or statutorily eradicated (e.g., sealed
juvenile offense records); any misdemeanor conviction
for which probation has been successfully completed or
otherwise discharged, and the case has been dismissed
judicially; and any arrest for which a pretrial diversion
program has been successfully completed.
Reference Cite/Code: Fair Employment and Housing
Act: Pre-Employment Inquiry Guidelines. FAIR
EMPLOYMENT PRACTICES 453:3561 (BNA).
Arrest RecordsState
Colorado: Employees may answer questions aboutarrests or convictions as though they had not
occurred.
Connecticut: The applicant is not required todisclose the existence of any arrest.
D.C. Arrest records. May not obtain or inquire intoarrest record.
Hawaii: It is a violation of law for any employer torefuse to hire, to discharge or to discriminate in
terms of compensation, conditions or privileges of
employment because of a persons arrest or courtrecord.
Illinois: employees may answer questions aboutarrests or convictions as though they had not
occurred.
Massachusetts: May not ask about arrests that didnot result in conviction.
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NOTES Michigan: Employers: May not request information
on any arrests or misdemeanor charges that did not
result in conviction.
Nebraska: employers: May not obtain access toinformation regarding arrests that do not lead to
conviction
New Hampshire: It is unlawful discrimination foran employer to ask about an arrest record, to have a
job requirement that applicant have no arrest record
or to use information about arrest record to make a
hiring decision, unless it is a business necessity.
New York: It is unlawful discrimination to askabout any arrests or charges that did not result inconviction, unless they are currently pending.
Rhode Island: It is unlawful to include on anapplication form or to ask as part of an interview if
the applicant has ever been arrested.
Utah: It is not permissible to ask about arrests. Wisconsin: It is a violation of state civil rights law
to discriminate against an employee on the basis of
a prior arrest
Information Available
Convictions: How Far Back Can We Report
FCRA CLARIFICATION ACT STATE LAW
CA 1785.13.6 & 1786.18.7 7 yearsCO CRS 12-14.3-105.3 7 years $75KKS 50-704 7 years
MD 14-1203 7 yearsMA MGL 93-52 7 yearsMT MCA 31-3-112 7 yearsNV NRS 598C.150 7 yearsNH HRS 359-B:5 7 yearsNM 56-3-6 7 yearsNY ART 25- 380-j 7 years $25KTX CH 20 20.05 7 years $75K
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NOTESWA RWC 19.182.040 7 years $20K
Databases
NATIONAL CRIMINAL FILES
Database search. Records generally felony only! Same day/next day access. Millions offense records. Covers some records in 47/50 states. Includes some correctional data lists, some sex
offenders, some state repositories, some court
records.
Does not include county court records frommost jurisdictions.
TEST CONVICTIONS
Child Abuse Carry Firearm during drug trafficking First degree burglary Sexual penetration with foreign object Forgery
Attempted invasion of home Resist law enforcement Unlawful taking of police weapon Embezzlement Vehicle theft Statutory sexual seduction Possession of deadly weapon by prohibited
possessor
Deliver control substance Battery Manufacture control substance Aggravated burglary Sell/transport control substance False report of a crime
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Criminal Search National Criminal Search
However, The National Criminal Database may find cases
where the subject stated he/she never lived!
NATIONAL CRIMINAL DATABASE TEST:25 Known Convicted Felons
UNIQUE JURISDICTIONS: 21Letters A-I indicate 9 different database companies tested
NAME MATCHES:
A B C D E F G H I
12 19 14 16 14 13 14 13 15
NO MATCHING RESULTS:
A B C D E F G H I
7 5 10 5 10 8 9 10 8
NO MATCHING CONVICTION INFO BUT OTHER HITS:
A B C D E F G H I
6 1 1 2 1 4 2 0 2
ERROR RATE:
A B C D E F G H I 52% 24% 44% 28% 44% 48% 44% 40% 32%
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NOTESNational Criminal Database
BEST PRACTICE
JURISDICTIONS: Use a CRA that analyzeseach jurisdiction covered by every vendor
ERROR RATE: To reduce error rate, use theCRA that researches with the vendor who
purportedly has data within the jurisdiction the
person lived or had lived
RESULT: More likelihood to reduce error ratewhile still locating other potential jurisdictions
containing convictions
Other DatabasesTEXAS CRIMINAL CRS DATABASE: KNOWN
CONVICTED FELONS: NO RECORDS FOUND
Charge: Murder of a childJurisdiction: Rowlett, TX
Sentenced on: 2/4/1997
Currently on Death Row
Charge: Murder of husband, son, daughterJurisdiction: Harris Cty, TX Sentenced on:
11/17/1988
Currently on Death Row
Charge: Murder & KidnappingJurisdiction: Austin, TX
Sentenced on: 5/25/1995
Currently on Death Row
Charge: MurderJurisdiction: Houston, TX
Sentenced on: 3/2/1995Currently on Death Row
Charge: Robbery & MurderJurisdiction: Harris Cty, TX
Sentenced on: 9/2/1980
Currently on Death Row
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NOTES Charge: Possession of Cocaine
Jurisdiction: Denton, TX
Sentenced on: 7/15/1996
SEX OFFENDER DATABASE TEST: 49 Known Registered Sex Offenders JURISDICTIONS: 45 NAME MATCHES: 39 NO MATCHING RESULTS: 8 ERROR RATE: 16.33% STATES THAT FAILED TO RETURN
RESULTS ON KNOWN SEX OFFENDERS:
Iowa, Louisiana, Minnesota, Nevada, NorthCarolina, South Dakota, Wisconsin
EYE-CATCHING FACTS ABOUT: STATE CRIMINAL
RECORD REPOSITORIES
Why state criminal record repositories are not
created equal:
Information collected Access Automation and control Receiving and reporting of dispositions Use of fingerprintsState repositoriesdata collected:
The Sources of the majority of states recordsare from state (county) courts and law
enforcement.
What information is reported, when it isreported, and how it is reported will all affect
the quality and completeness of state data.
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NOTESFor Example:
32 states require prosecutors to report to staterepositories of a decision to decline prosecution
of a case.
35 states and DC require law enforcementofficials to notify the state repository when an
arrested person is released without formal
charging, but after fingerprints were submitted.
Federal Criminal Record Indices andRepositories
Reciprocity and Reporting As of 12/31/02, there are 64, 282,700 subjects in
state Criminal history files In 2002 over 1,100,000 adults were convicted of
a felony. Over 94% of the total were convicted
in state courts.
Statistical Resources: The statistics shown on the
following are taken from the U.S. Department of
Justice, Bureau of Justice Statistics and from BRB
Publications Public Record Research System. Also
used is an August 2003 release of DOJs Survey of
State Criminal History Information Systems, 2001
(www.ojp.usdoj.gov/bjs/abstract/sschis01.htm)
State Repositories: 38 states availableAdditional
Fees: From $5-$25
AL, AR, CO, CT, DE, IL, Dist. Of Columbia, FL,
GA, HI, ID, IN, IA, KS, KY, MD, MI, MN, MO,
MT, NV, NH, NJ, NM, NC, ND, OK, OR, PA, RI,SC, SD, TN, TX, VA, WA, WV, WI
Turnaround from: Same Day to 30 days
State Repositories: Limited/No Availability
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NOTESAlaskaCriminal Justice Agencies Only
ArizonaFingerprints
CaliforniaNot Available
LouisianaNot Available
MassachusettsLimited
MaineLimited
MississippiNot Available
NebraskaLimited
New YorkCourt Order/Subpoena
OhioFingerprints & Release
UtahSubpoena or Authorization by Law
VermontNot Available
WyomingFinger prints & Notarized Release
STATE REPOSITORIESACCESS PROVISIONS
The Need-to-Know Standards Vary
21 states release records to the general public 19 states plus D.C. release records to the public
with a release from the subject
16 states require statutory authority to accesstheir records
(AK, KS, MN, NY, RI, TX appear on 2 lists,
depending on type of record accessed)
STATE REPOSITORIESAUTOMATION AND
CONTROL
Overall, 89% of records are automated. 6.8million (Approx 11%) records are not.
27 states have fully automated criminal recordfiles
All states have a fully automated name index 49 states maintain transaction logs to provide an
audit trail of all inquires, responses, and record
updates or modifications
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NOTES 42 states use computer edit and verification
programs as part of data quality procedures
STATE REPOSITORIESRECEIVING DISPOSITIONS
OF RECORDS
21 states report they receive final felony trialcourt dispositions for 70% or more arrests
within last 5 years.
Only 10 states report they receive 100% of finaltrial court dispositions.
6 states do not require felony trial courts toreport dispositions to the state repositories.
47 jurisdictions report they receive final courtdispositions that cannot be linked to arrest
records in the database.
The overall average is 18 days between the dateof the final court disposition and the receipt of
the data by the state criminal record agency.
Range is 1 to 80 days (ND).
The overall average is 29 days between thereceipt of the final disposition and entry into the
state database. Range is 1 day to 330 days
(WA).
23 states report all records, with or withoutdispositions.
22 states report only records with dispositions. 12 states report time sensitive records without
dispositions (9 states use 1 year as their rule).
(Some states appear on two lists, depending onsubjects consent and access methods.)
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NOTESSTATE REPOSITORIESFINGERPRINT-
SUPPORTED RECORDS
42 states, representing 94% of the USpopulation, have records that are 99-100%
fingerprint supported
In 4 states and DC, only 30% to 85% of arrestsare fingerprint supported
In Massachusetts there are no fingerprint-supported criminal records
The overall average is 13.7 days between thedate of the final court disposition and the receipt
of fingerprints by the state criminal record
agency. Range is 1 to 169 days (MS). The overall average is 14.4 days between the
receipt of fingerprints and entry into the state
database. Range is 1 day to 180 days (OK).
Understanding the Federal Criminal Record
Databases
THE SOURCES
Federal Courts National Crime Information Center (NCIC) Interstate Identification Index System (III) National Crime Prevention and Privacy
Compact
National Instant Criminal Background CheckSystem (NICS)
TWO DISTINCTIONS
Is the information available to the public? Does the information just consist of federal law
violations?
FEDERAL CRIMINAL COURT RECORDS
94 Judicial Districts exist with 296 DivisionalCourts
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NOTESTAKE CAUTION WHEN USING FEDERAL CRIMINAL
COURT RECORDS
Lack of good identifiers Limited number of records Greater chance of false positivesTHE NATIONAL CRIME INFORMATION CENTER
(NCIC)
An automated database of criminal justice andjustice-related records maintained by the FBI.
Includes wanted and missing persons, stolenvehicles, and identifiable stolen property
including firearms, subjects of protection and
restraining orders.
Sources of information include counties, states,and federal agencies.
Not open to non-criminal justice agencies,unless by statutory provisions (licensing
agencies, such as healthcare, police, etc.)
INTERSTATE IDENTIFICATION INDEX (III) SYSTEM
Not a database, but an index with a pointersystem of persons arrested for felonies or
serious misdemeanors under state or federal
law.
As of 11/2004, III has 47,832,397 criminalrecords, of which 33,370,410 are state-
supported and 14,461,987 FBI supported.
Meant for the interstate exchange of criminalhistory records.
Includes identification information such asname, date of birth, race, and sex, FBI Numbers
and State Identification Numbers (SID).
42 States are participating members (LA, ME,VT, DC, HI, KY, LA, MA, ME, and U.S.
Territories are not).
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NOTESNATIONAL CRIME PREVENTION AND PRIVACY
COMPACT
Effective April 1999, establishes formalprocedures and governance structures for use of
the III.
Designed to facilitate use by states andeliminate need for FBI to maintain duplicate
data about state offenders.
Key Conceptall participating states willprovide all criminal history information (except
sealed cases) in response to non-criminal justice
requests from another state.
The law of the state that is inquiring about thedata, rather than the law of the state holding the
record, governs the use.
As of March 2003, 20 states have joined theCompact (AK, AZ, AR, CO, CT, FL, GA, IA,
KS, ME, MN, MT, NC, NH, NJ, NV, OH, OK,
SC)
NATIONAL INSTANT CRIMINAL BACKGROUND
CHECK SYSTEM (NICS)
NICS is system used by gun dealers to screenpersons applying for a firearm
Personal identifiers used to match NCIC, III,and the NICS index
NICS Index contains records of over 1 millionpeople prohibited from possessing a firearm
NICS shares disposition information receivedduring process, when the NICS findsinformation not reflected at the state level. Over
90% of the states use the NICS data to update
their records (although 1/3 of the states indicate
there is a backlog averaging 62 days.)
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NOTESBe careful! Headline reads: Police Urge Sex
Charges be Filed against Ex-Coach
Source: The Arizona Republic
Other DatabasesWhat Does it All Mean?
Know the strengths and weaknesses of the staterepositories
Importance of the county search Importance of supplemental database search Importance of dispositions
Other Searches: Elements of a Complete Search
Social Security Trace Motor Vehicle Reports
We recommend an MVR in every search because it tells
you things that you may not find in a criminal search
including DUIs, Possession of Drugs, Warrants, Failure to
Appear, Etc. Also, it is the only search that helps identify
the correct date of birth of the applicant.
Employment Credit Reports References (Investigative Consumer Report)
When Outsourcing References
Section 609(c)(3) [ 1681g] of the FCRA requires that
within 3 days of requesting an Investigative Consumer
Report, the requestor provide a description in writing of
the rights of the consumer, as prescribed by the Federal
Trade Commission.
Education Beware of Falsified Educations Available on the
Internet.
Office of Inspector GeneralMedicare FraudReport
Terrorist Search (OFAC & Prohibited Parties)
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NOTES Military Service Civil Records Workers Compensation (AK, AZ, AR, CA, CN,
FL, HI, ID, IL, IA, KN, KY, LA, MA, MS, MI,
MN, MT, NB, ND, OH, OK, OR, PA, SC, SD, TN,
VT, WV, WY)
Drug Testing Employment Physicals Right to Work Verification within 3 days of hire Sex OffenderChild Molester I.D. About 386,000 convicted sex offenders were
registered in 49 states and D.C. as of February
2001, compared to 277,000 registered in April1998. California had the largest number of
offenders in its registry with over 88,800 registrants
(23%).
Texas had the second largest registry with almost30,000 registrants.
Source: U.S. Department of Justice, Bureau of Justice Statistics,March 2002, NCJ 192265
How do You Use the Information?
EEOC Guidelines The nature and gravity of the offense Time lapse since the offense occurred Job applied for
Dont Get Hung Out to Dry: A Database Search is not
enough!
Bibliography
BRB Publications Public Record Research System. Department of Justices Survey of State Criminal History
Information Systems, August 2003
GAP Inc.
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NOTES Reference Cite/Code: Fair Employment and Housing Act: Pre-
Employment Inquiry Guidelines. FAIR EMPLOYMENT
PRACTICES 453:3561 (BNA).
Smith, William C., Victims of Omission: ABA Journal, March1999
United States Department of Justice, Bureau of Justice Statistics,March 2002, NCJ 192265
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