Criminal History Records

U.S. Department of JusticeOffice of Justice ProgramsBureau of Justice Statistics

National Conference onCriminal History Records:

Brady and Beyond

proceedings of a BJS/SEARCH conference

papers presented by

Lawrence A. Greenfeld Thomas F. Rich James F. SheaKent Markus Gary D. McAlvey Laurie O. Robinson

Rebecca L. Hedlund Capt. R. Lewis Vass Janet RenoRobert J. Creighton Lt. Clifford W. Daimler James X. Dempsey

Robert R. Belair Edward J. (Jack) Scheidegger Noy S. DavisStephen R. Rubenstein Sally T. Hillsman Kimberly Dennis

Virgil L. Young Jr. David Eberdt

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U.S. Department of JusticeBureau of Justice Statistics

Jan Chaiken, Ph.D.Director

Acknowledgments

This report was prepared by SEARCH, The National Consortium for Justice Informationand Statistics, Francis J. Carney Jr., Chairman, and Gary R. Cooper, Executive Director.The project director was Sheila J. Barton, Director, Law and Policy Program. Twyla R.Cunningham, Manager, Corporate Communications, edited the proceedings. Jane L.Bassett, Publishing Assistant, provided layout and design assistance. The federal projectmonitor was Carol G. Kaplan, Assistant Deputy Director, Bureau of Justice Statistics.

Report of work performed under BJS Grant No. 92-BJ-CX-K012, awarded to SEARCHGroup, Inc., 7311 Greenhaven Drive, Suite 145, Sacramento, California 95831.Contents of this document do not necessarily reflect the views or policies of the Bureauof Justice Statistics or the U.S. Department of Justice.

Copyright © SEARCH, The National Consortium for Justice Information and Statistics1994.

The U.S. Department of Justice authorizes any person to reproduce, publish, translate orotherwise use all or any part of the copyrighted material in this publication with theexception of those items indicating they are copyrighted or printed by any source otherthan SEARCH, The National Consortium for Justice Information and Statistics.

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Contents

Foreword, v

Introduction, vii

I. Criminal history records: Where we are

WelcomeLawrence A. Greenfeld Welcome, 3

Setting the stageKent Markus Brady Act: The Federal perspective, 7

Rebecca L. Hedlund Brady Act: The Department of Treasury perspective, 10

Robert J. Creighton Brady Act: The Bureau of Alcohol, Tobaccoand Firearms perspective, 11

Requirements, regulations and proceduresof the Brady Act: Panel

Robert R. Belair • Moderator’s remarks, 17

Stephen R. Rubenstein • Brady Act regulations and requirements, 19

Virgil L. Young Jr. • FBI operational status report and Felon Identification in FirearmsSales Program, 22

Thomas F. Rich • Report of study on identifying persons, other than felons, ineligibleto purchase firearms, 29

Existing systemsGary D. McAlvey The Illinois experience: 25 years of firearms control

through comprehensive background checks, 35

Current presale firearms checks: PanelCapt. R. Lewis Vass • The Virginia point-of-sale Firearms Transaction Program, 39

Lt. Clifford W. Daimler • The Oregon system: Fingerprint checks and the waiting period, 42

Edward J. (Jack) Scheidegger • The California system: Access to other databases, name searchesand the waiting period, 50

Role of the courts: PanelSally T. Hillsman, Ph.D. • Disposition reporting: The perspective from the courts, 55

James F. Shea • Collecting and accessing court disposition information for thecriminal history record, 58

II. Current decisionmaking and future policies

Day two opening addressLaurie O. Robinson Day two opening address, 71

Keynote addressJanet Reno Keynote address, 73

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National Child Protection Act of 1993Requirements and systems of theNational Child Protection Act: Panel

James X. Dempsey • Requirements of the National Child Protection Act, 79

Noy S. Davis • Authorized record checks for screening child care and youth serviceworkers, 83

Kimberly Dennis • Report on national study of existing screening practices by childcare organizations, 86

David Eberdt • Current child abuse crime reporting: A State experience, 99

Grant agency perspectiveLawrence A. Greenfeld Grant agency perspective on implementation of the

Brady and National Child Protection Acts, 103

Contributors’ biographies, 109

Appendixes, 115Appendix 1 Public Law 103-159: Brady Handgun Violence Prevention Act

Appendix 2 Bureau of Alcohol, Tobacco and Firearms: Preliminary list of Statessubject to the Federal five-day waiting period or States havingalternative systems as defined in the law

Appendix 3 Bureau of Alcohol, Tobacco and Firearms: Open letter to all Federalfirearms licensees subject to the waiting period provisions of theBrady Law

Appendix 4 Bureau of Alcohol, Tobacco and Firearms: Open letter to all Federalfirearms licensees not subject to the waiting period provisions of theBrady Law

Appendix 5 Bureau of Alcohol, Tobacco and Firearms Form 5300.35: Statementof intent to obtain a handgun(s)

Appendix 6 Bureau of Alcohol, Tobacco and Firearms: Open letter to State andlocal law enforcement officials

Appendix 7 Bureau of Alcohol, Tobacco and Firearms: Brady Handgun ViolencePrevention Act Questions and Answers

Appendix 8 Queues Enforth Development, Inc.: Executive summary to IdentifyingPersons, Other Than Felons, Ineligible to Purchase Firearms: AFeasibility Study

Appendix 9 State of Oregon Dealer’s Record of Sale of Handgun

Appendix 10 Public Law 103-209: National Child Protection Act of 1993

Appendix 11 American Bar Association Center on Children and the Lawmemorandum on the National Child Protection Act of 1993

Appendix 12 Arkansas Code Annotated §§20-78-601 to 604: Background checks ofchild care facility licensees and employees

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Foreword

A groundswell of activity in late 1993 resulted in the passage of two important pieces of Federal legislationwhich affect the management of criminal history record information at the Federal, State and local levels.In November 1993, the United States Congress passed both the Brady Handgun Violence Prevention Actand the National Child Protection Act of 1993. These Acts, which were quickly signed into law byPresident Clinton, require that national criminal history record checks be done of firearms purchasers andapplicants for child care employment. The Brady Act establishes a national instant criminal backgroundcheck system (NICS) to be contacted by firearms dealers before the transfer of a firearm. This nationalsystem, which must be able to supply information immediately regarding whether receipt of a firearm by aprospective firearm purchaser would violate State or Federal law, must be operational by November 30,1998. In the interim, the law imposes a 5-day waiting period on handgun purchases, during which time acriminal records check must be conducted. To assist States in establishing automated record systems to helpthem implement the NICS, the legislation authorized $200 million in Federal grants, to be administered bythe Bureau of Justice Statistics. The National Child Protection Act, meanwhile, encourages States to requirea fingerprint-based national background check of individuals seeking employment in the child care field.The Violent Crime Control and Law Enforcement Act of 1994 subsequently amended this Act to alsoinclude those seeking employment with the elderly and disabled. The law authorized $20 million in grantsto the States for fiscal 1994-1997, to assist them in improving their record systems to comply with the law.These two major new laws impose a great deal of responsibility on the States, and in many cases willrequire States to upgrade their criminal history record systems in order to comply with them. To discuss theimplementation of these two major Acts from the Federal and State perspectives, the Bureau of JusticeStatistics, along with SEARCH, The National Consortium for Justice Information and Statistics,cosponsored the “National Conference on Criminal History Records: Brady and Beyond” in Washington,D.C. on February 8-9, 1994. This publication presents the proceedings of that conference. I believe theseproceedings will provide readers with a distinct understanding of the components of these two importantlaws, as well as the requirements they impose on States; the status of existing background check systems inthe States; and a clear picture of Federal efforts to implement these two laws. To be effective, the BradyAct and the National Child Protection Act of 1993 require the cooperation and involvement of the States intheir implementation and continued operation. This conference was an important first step toward sharinginformation, providing guidance and obtaining input that is vital to those processes.

Jan Chaiken, Ph.D.DirectorBureau of Justice Statistics

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Introduction

In November 1993, the U.S. Congresspassed two significant pieces of crimelegislation: the Brady Handgun ViolencePrevention Act and the National ChildProtection Act of 1993. Both lawsrequire nationwide background checks:the Brady Act to check the criminalrecords of individuals seeking topurchase firearms and the National ChildProtection Act to check the backgroundof individuals seeking employment in thechild care field. The laws authorized$200 million and $20 million,respectively, to assist the States inestablishing and improving theirautomated record systems to enable themto comply with the new laws, and toprepare for a national instant criminalbackground check system, which theBrady Law requires to be operational byNovember 30, 1998.

The implementation of these twomajor laws at the national level rests withthe U.S. Departments of Justice andTreasury, primarily in the FederalBureau of Investigation and the Bureauof Alcohol, Tobacco and Firearms. Moreimportantly, the successfulimplementation of the laws also requiresthe cooperation, involvement and inputof the States.

As part of its effort to provideinformation and guidance to the Stateson these two major Acts, the Bureau ofJustice Statistics, U.S. Department ofJustice and SEARCH cosponsored the“National Conference on CriminalHistory Records: Brady and Beyond” onFebruary 8-9, 1994, in Washington, D.C.The conference brought together officialsfrom the Federal agencies which haveresponsibility for the implementation ofthese Acts, as well as officials fromStates and national organizations whichare equally as interested and involved inthe implementation of these backgroundcheck laws. This document presents theproceedings of that conference.

The first day of the conference,“Criminal history records: Where weare,” provided information on specific

aspects of the Acts, such as requirementsthe Acts impose on States, and successfulimplementation and operation of similarstatewide programs. The second day ofthe conference, “Current decisionmakingand future policies,” highlighted Federalpolicy- and decisionmaking relating tothe implementation of the Acts.

Mr. Lawrence A. Greenfeld, who atthe time of the conference was serving asActing Director of the Bureau of JusticeStatistics (BJS), U.S. Department ofJustice, provides the “Welcome” address.He stresses that an important side benefitof both Acts is that they focus attentionon the adequacy of criminal recordssystems, mainly their accuracy,completeness and shareability. He saysimproving criminal records systems isthe single most important nationalcriminal justice reform, particularly atthe present time, when new expectationsare emerging for criminal recordinformation. He predicts that Federalresources will be targeted to improvingthe criminal justice informationinfrastructure with a higher priority thenever before.

The next three speakers help to set thestage for a discussion of the Brady Lawfrom the Federal agency perspective. Mr.Kent Markus, Counsel to the DeputyAttorney General, U.S. Department ofJustice, discusses the activity beingundertaken by the Departments of Justiceand Treasury to implement the BradyAct, including providing guidance,information, resources and funds to assistthe States in implementing the Act. Healso reviews the steps the Federalgovernment is taking toward improvingcriminal history records, as required bythe Act. Ms. Rebecca L. Hedlund,Legislative Policy Advisor to theAssistant Secretary, Enforcement, U.S.Department of the Treasury, brieflydiscusses that department’s activities inpreparing for Brady Act implementation.She introduces the next speaker, Mr.Robert J. Creighton, serving at that timeas the Brady Law Coordinator for the

department’s Bureau of Alcohol,Tobacco and Firearms (ATF). Mr.Creighton provides an in-depth overviewof the information-sharing processundertaken by the Bureau to educate the280,000 licensed Federal firearmsdealers in the United States, as well asthe thousands of law enforcementofficials, who are affected by the BradyLaw and who are primarily responsiblefor its implementation. This informationeffort includes Treasury regulations,letters and flyers, site visits from ATFfield counsels, and a coordinateddissemination plan. He also reviews theprocess the ATF undertook to gatherinput and advice from State and local lawenforcement officials, attorneys generaland others regarding the Brady Lawimplementation.

Mr. Robert R. Belair, SEARCHGeneral Counsel, serves as moderator ofa panel on “Requirements, regulationsand procedures of the Brady Act.” In hismoderator’s remarks, he touches on thelegislative effort that culminated in theBrady Law, discusses the national instantcriminal background check system(NICS), and provides an overview of thepanel presentations.

“Brady Act regulations andrequirements” is the subject of thepresentation by the first panelist, Mr.Stephen R. Rubenstein, Senior Counsel,Firearms and Explosives Unit, Office ofthe Chief Counsel, Bureau of Alcohol,Tobacco and Firearms, U.S. Departmentof the Treasury. He provides an overviewof how the Brady Law fits into existingFederal firearms laws; discusses theregulations being issued by ATF toimplement the law; discusses the ATF’sdevelopment of Brady forms andprocedures; reviews requirements thatthe law imposes on States and Federalfirearms licensees, in particular the 5-daywaiting period that is in effect until theNICS is operational in late 1998;discusses exceptions to the waitingperiod; and describes a typical Bradyfirearm transaction.

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The next panelist is Mr. Virgil L.Young Jr., former Section Chief,Programs Development Section,Criminal Justice Information ServicesDivision, Federal Bureau ofInvestigation. In his presentation, “FBIoperational status report and FelonIdentification in Firearms SalesProgram,” Mr. Young focuses on adiscussion of the system requirements forNICS, which must be operational within5 years of the passage of the Brady law(November 30, 1998). He also reviewsthe activities the FBI is undertaking todevelop a system design by the June 1,1994, deadline imposed by the law, anddiscusses the current status of theInterstate Identification Index (III), anational index maintained by the FBIthat allows for the interstate and Federal-State exchange of criminal history recordinformation, and which will be thefoundation for the NICS. Finally, hereviews the Felon Identification inFirearms Sales Program, an ongoingeffort to flag convicted felons in the III.

The final panelist, Mr. Thomas F.Rich, Senior Analyst, Queues EnforthDevelopment, Inc., reviews the results ofa report done for the Department ofJustice to determine what databases canbe accessed to immediately andaccurately identify persons, other thanfelons, who attempt to purchase firearmsbut who are ineligible to do so (such asillegal aliens, dishonorable dischargees,citizenship renunciates, etc.). He notesthat while information on some of thesepersons is easily obtained, existingdatabases may not be complete enoughto provide information on every personwho comes under one of the disablingcategories. In addition, State privacylaws protect information on other majorcategories, such as certain commitmentsto mental health facilities.

The next section of the conferencewas a discussion of existing Statesystems which conduct presale recordschecks of firearms purchasers. The firstspeaker, Mr. Gary D. McAlvey,Inspector, Division of Administration,Illinois State Police, describes his State’s25-year experience in controlling thepurchase and possession of firearms and

firearm ammunition. Illinois requirespersons who wish to acquire or possessfirearms or ammunition to obtain aFirearm Owners Identification Card,which requires that the card applicantundergo a complete screening of Stateand Federal criminal history records, aswell as of State mental health records. Inaddition, before card holders canpurchase a firearm in Illinois, they mustundergo a criminal history records checkat the place of purchase; these checks areconducted through the Illinois StatePolice with the use of “900” phone lines.Purchase approvals are to be giveninstantly, while purchase denials can begiven within the waiting periods of 24 to72 hours. Mr. McAlvey reports thatIllinois’ system is very successful, andhas many benefits, such as theidentification and apprehension ofpersons wanted on warrants.

The next three speakers served aspanelists, discussing “Current presalefirearms checks” in their States. Capt. R.Lewis Vass, Records ManagementOfficer, Records Management Division,Virginia State Police, describes theoperation of the Virginia FirearmsTransaction Program, which provides aninstant point-of-sale criminal historyrecords check of prospective firearmspurchasers. Like the NICS being plannedat the Federal level, the Virginia systemeliminates waiting periods byelectronically accessing State andFederal criminal history and wantedpersons databases. Capt. Vass reportsthat one of the most significant problemsexperienced in operating the instantpoint-of-sale program is interpreting thevaried methods of recording andreporting arrest and court dispositioninformation by other States or foreigncountries. However, Virginia works withInterpol to help query and interpretforeign criminal history records and hasdetermined dispositions of felonycharges reported in many foreigncountries. Capt. Vass also discussesVirginia’s Firearms Investigative Unit,which seeks to curtail illegal firearmsactivity, and reviews the successes ofVirginia’s 5-year-old program, includingthe apprehension of wanted fugitives and

the solving of previously unsolvedcrimes.

Oregon’s presale firearms checksystem involves processing a purchaseapplication accompanied by theapplicant’s thumbprints, and a 15-daywaiting period. As described by Lt.Clifford W. Daimler, Director,Identification Services Division, OregonDepartment of State Police, local lawenforcement agencies in Oregon have 15days to check a purchaser’s background,which includes 10 days for the StatePolice to run a fingerprint check throughits automated fingerprint identificationsystem. He also reviews the fewexceptions to the waiting period, as wellas penalties for violating the law, andpurchase disqualifications under theOregon statute. Finally, he reviews theimpact that enactment of the Oregonfirearms sales check law has had onworkload levels at his agency.

Mr. Jack Scheidegger reviewsCalifornia’s system for completingpresale firearms checks of gunpurchasers. Mr. Scheidegger, Chief,Bureau of Criminal Identification andInformation, California Department ofJustice, reports that his agency conductsname-based record checks of State andnational criminal history and wantedpersons, restraining order and mentalhealth files; requires a 15-day waitingperiod; and enters purchaser data into anautomated firearms system. The firearmscheck statute also covers privatetransactions, as well as sales by gundealers and at gun shows. He reports thatthe 15-day waiting period is a firm“cooling off” period — no handgun maybe transferred before the period haselapsed.

The next two speakers were panelistswho address the “Role of the courts”;their presentations wrapped up Day Oneof the conference. Dr. Sally T. Hillsman,Vice President of Research for theNational Center for State Courts(NCSC), gave a presentation on“Disposition reporting: The perspectivefrom the courts.” She stresses that whileimproving the quality of criminal historyrecord information is crucial, so also isthe timeliness of the information and of

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understanding that courts are importantusers of this information, particularlywith respect to case dispositions. Shereports that the judicial branch is a keypartner in successful change, but theirparticipation and input has been too oftenoverlooked. An exception to this, shenotes, was the convening in 1990 of theNational Task Force on Criminal HistoryRecord Disposition Reporting bySEARCH, BJS and NCSC.

“Collecting and accessing courtdisposition information for the criminalhistory record” was the presentationgiven by Mr. James F. Shea, AssistantDirector, Integrated SystemsDevelopment, New York State Divisionof Criminal Justice Services. Hediscusses New York’s efforts to improveand expand the level of automateddisposition reporting by the courts to theState’s central repository of criminalhistory record information. He reviewsthe procedures used to transmit thisinformation, discusses the impact of thereporting, and also reports on how NewYork is working to improve its technicalinfrastructure of automation andcommunications capabilities.

Ms. Laurie O. Robinson, ActingAssistant Attorney General, Office ofJustice Programs, U.S. Department ofJustice, provides the “Day two openingaddress,” in which she introduces thekeynote speaker, the Honorable JanetReno, United States Attorney General. Inher “Keynote address,” Ms. Renoreiterates the importance of timely,accurate and complete criminal historyrecords to all branches of the criminaljustice system, as well as to otherlegitimate, noncriminal justice users.While she acknowledges there have beenimprovements in recent years, she saysour current ability to conduct reliablebackground checks is abysmal. She notesthat conducting instant backgroundchecks, as required under the Brady Lawby late 1998, will be a substantialchallenge. However, she adds, the JusticeDepartment will work jointly with theStates to set priorities for Federal moniesto improve the quality and accessibilityof criminal history records in Statesystems. She also says that the success of

the Brady Law implementation, as wellas reaching the goal of complete,accurate and timely criminal historyrecord information, will depend on aclose partnership between the Federalgovernment and the States.

The next four speakers comprised apanel which discussed requirements andsystems of the National Child ProtectionAct. The first panelist, Mr. James X.Dempsey, Assistant Counsel of theJudiciary Subcommittee on Civil andConstitutional Rights, U.S. House ofRepresentatives, discusses the growingFederal mandates which require criminalhistory record checks at the State level.He says that the pressure for use ofcriminal history records as a screeningdevice for noncriminal justice purposesis unlikely to abate any time soon. Hethen reviews in-depth the main elementsof the National Child Protection Act, theway it conforms to current practices andthe ways in which it imposes newmandates on the States.

Ms. Noy S. Davis, ProjectManager/Attorney, and Ms. KimberlyDennis, Research Associate, AmericanBar Association (ABA) Center onChildren and the Law, spoke next. Ms.Davis reviews the extent to which statestatutes currently authorize record checksfor the screening of child care and youthservice workers. Ms. Dennis discussessome of the major issues raised inliterature regarding criminal recordchecks and reviews preliminary findingsfrom a national ABA survey whichsought to determine the extent to whichrecord checks are currently used byorganizations and agencies that providecare and other services to children.

The final panelist was Mr. DavidEberdt, Director, Arkansas CrimeInformation Center, who provides anoverview of an Arkansas law thatrequires fingerprint-based backgroundchecks for licensed child care facilities,their owners, operators and employees.In addition to the legislative history andrequirements of the law, he reviews otherissues and problems that arose with itsinterpretation and implementation.

The closing speaker of the conferencewas Mr. Lawrence A. Greenfeld, then-

Acting Director of BJS. He gave the“Grant agency perspective onimplementation of the Brady andNational Child Protection Acts.” He saidboth Acts focus attention on the mostimportant challenge facing theinfrastructure of the criminal justicesystem: keeping accurate and timelyrecords and making them readilyavailable for criminal justice andnoncriminal justice purposes. He reviewsrecent BJS efforts to improve criminalhistory records and also discusses asurvey being done to estimate the timerequired by each State to fully implementthe NICS and to meet the record qualityexpectations of the National ChildProtection Act. He also discusses thegrant programs accompanying each Act,including a description of eligiblefunding activities.

Finally, mention and thanks are givenhere to Maj. James V. Martin, who ablyserved as the conference moderator. Maj.Martin is Director of the Criminal JusticeInformation and CommunicationsSystem, South Carolina LawEnforcement Division, and is a memberof the SEARCH Board of Directors.


WelcomeLawrence A. Greenfeld

National Conference on Criminal History Records: Brady and Beyond Page 3

Welcome

LAWRENCE A. GREENFELDActing Director, Bureau of Justice Statistics

U.S. Department of Justice

Welcome to the sixth nationalconference on criminal history recordswhich the Bureau of Justice Statistics(BJS) has sponsored over the years. Weare very excited about this get-togetherwhere we will hear from, among others,the Attorney General of the UnitedStates. One of the truly important sidebenefits of both the Brady HandgunViolence Prevention Act and theNational Child Protection Act is thatthey focus our attention on the adequacyof our criminal records systems — theiraccuracy, completeness and shareabilityacross jurisdictions.1

Up-to-date, accurate and accessiblerecords are important for decisionmakersin the justice system who often mustmake very difficult decisions whichaffect the lives of alleged offenders,convicted offenders, and past and futurevictims. There are many importantdecisions which are shaped by theoffender’s current offense and whichnecessitate knowledge of the offender’scriminal history: judgments regardingrelease pending trial, the setting of bailamounts, sentencing and releasedecisions, and determinations regardingthe appropriate level of communitysupervision and offender monitoring.From my perspective, there may be nosingle criminal justice reform in ourNation which is as important asimproving our criminal records systems— virtually all of the decisions renderedby justice system officials are basedupon the gravity of the offense and the

1 Brady Handgun Violence Prevention Act,Pub. L. No. 103-159 (November 30, 1993);National Child Protection Act of 1993, Pub.L. No. 103-209 (December 20, 1993). Thetext of these acts are included in this reportas Appendixes 1 and 10, respectively.

extensiveness and seriousness of thecriminal history.

The reason the criminal record is soimportant to us is because study afterstudy have shown that the single bestpredictor of future criminal conduct ispast criminal conduct. A 3-year BJSfollow-up study of a sample representing109,000 released prisoners in 11 Statesrevealed that among those who had oneprior arrest, 5 percent were rearrestedwithin 3 months of prison release. Thosewho left prison with a record of 11 ormore prior arrests were five times aslikely to be rearrested within the first 3months after release.

I am certain everyone has seenvariations of the criminal justiceflowchart which first appeared in thereport of the 1967 President’sCommission on the Administration ofJustice.2 There are literally dozens ofdecision points in the criminal justicesystem where the probability ofproceeding in one direction or another ata particular branching point is largelydetermined by the information that isavailable. Similarly, decisions aboutwhether someone may purchase ahandgun or may obtain employment incertain occupations will also be a

2 The flowchart was published in Thechallenge of crime in a free society,President’s Commission on LawEnforcement and Administration of Justice,1967. An adaptation of this flowchart can beseen in Use and Management of CriminalHistory Record Information: AComprehensive Report, U.S. Department ofJustice, Office of Justice Programs, Bureauof Justice Statistics, by Robert R. Belair andPaul L. Woodard, SEARCH Group, Inc.(Washington, D.C.: Government PrintingOffice, November 1993) pp. 8-9.

National Conference on Criminal History Records: Brady and Beyond

function of the quality and accessibilityof our records.

The criminal record has now becomemore than a simple list of fingerprint-based transactions and occasionaldispositions — we are asking that recordto describe a criminal career and thecommunal harm associated with thatcareer. It is an exciting and challengingtime to be in our business as newexpectations are emerging for criminalhistory record information management.After the full amount of appropriationsare decided for both the Brady andNational Child Protection Acts, Federalfinancial resources will be targeted toimproving the information infrastructurewith a higher priority then ever before.

As this conference gets underway, Iwant to thank Gary Cooper and SheilaBarton of SEARCH for their outstandingwork in putting this conference together,as well as the many other SEARCH staffwho have done so much to prepare forthis meeting and whose long-term workhas helped to cement the Federal-State-local partnership to improve criminalhistory records nationwide. I want toalso thank BJS staffers Paul White, DonManson, Linda Ruder and HelenGraziadei who have managed the 81grants given to the States under BJS’$27 million Criminal History RecordsImprovement Program which is now inits concluding stages and which is theprecursor to the grant assistanceprograms that will be made availableunder the Brady and National ChildProtection Acts. I want to especiallythank Carol Kaplan, BJS AssistantDeputy Director, who has done a lot ofgroundwork on the Brady and NationalChild Protection Acts to help us preparefor this meeting, as well as to prepare usfor what likely will be the largestFederal initiative ever undertaken toimprove criminal history recordsnationwide.


Setting the stage

Brady Act: The Federal perspectiveKent Markus

Brady Act: The Department ofTreasury perspectiveRebecca L. Hedlund

Brady Act: The Bureau of Alcohol,Tobacco and Firearms perspective

Robert J. Creighton


Brady Act: The Federal perspective

KENT MARKUSCounsel to the Deputy Attorney General


The agenda suggests that I amsupposed to talk about “the Federalperspective” of the Brady HandgunViolence Prevention Act. That titlesounds curiously like the old adage, “I’mfrom Washington and I’m here to helpyou.” Yet we hope that that suspicioussentence can be one which works in apositive way with efforts to implementthe Brady Act.1

My assignment from AttorneyGeneral Reno is to coordinate all activityof the U.S. Department of Justice withrespect to implementing the Brady Act.Part of that task is to prod the Federalgovernment to provide guidance,information, resources and funds —whatever it is we have to assist the Statesin implementing the Brady Act.

Brady missionTo express a sense of what my

mission is like, I would like to describethe Justice Department “alphabet soup”that I have been dealing with. In an effortto figure out how to implement the Bradylegislation and to give guidance,assistance and advice, I have dealt withthe following:• OLC, the Office of Legal Counsel, to

obtain formal legal opinions about theinterpretation of the Act.

• BJS, the Bureau of Justice Statistics,to obtain the statistical informationwhich will help us plan and preparefor an upcoming survey of the Statesintended to assess the status ofcriminal history records nationwide.

1 Brady Handgun Violence Prevention Act,Pub. L. No. 103-159 (November 30, 1993).The text of the Brady Act is included in thisreport as Appendix 1.

• FBI, the Federal Bureau ofInformation, which I deal with almostdaily to develop systems for thepractical implementation of theinterim provisions of the Act and tobegin planning for the technology andsystems decisions central to thenational instant criminal backgroundcheck system required by the Act.2

• OLA, the Office of LegislativeAffairs, to try to obtain funding forthis effort.

• INS, the Immigration andNaturalization Service, to get accessto databases concerning illegal aliens.

• EOUSA, the Executive Office of theUnited States Attorneys, which I talkto about planning a training programfor U.S. attorneys all over the countrythat will train them on how to bringforth Brady prosecution actions andprepare them for wrongful denial andrecord correction litigation that isauthorized under the Act.

• OPD, the Office of PolicyDevelopment, which handles much ofthe intergovernmental andinterorganizational efforts of theJustice Department.

• Finally, I work with OPA, the Officeof Pardon Attorney, on issuesassociated with how civil rights

2 The interim provisions of the Brady Actrequire that a 5-day waiting period forhandgun purchases be instituted nationwideon February 28, 1994, to allow forbackground checks of prospective purchasersby the chief law enforcement officer of thepurchaser’s place of residence. The Act alsospecifies that by November 30, 1998, anautomated system be in place wherebynational criminal background checks offirearms purchasers can be completedinstantaneously.


restorations will impact Bradybackground checks.

All of that is just a sense of what is goingon in the Justice Department.

The other part of my charge is to bethe liaison with the other Federalgovernment agencies and with the Stategovernments on issues associated withBrady Act implementation. Again, onalmost a daily basis (and sometimesmore frequently), I deal with my friendsat the Treasury Department and theBureau of Alcohol, Tobacco andFirearms (ATF). They have doneabsolutely yeoman’s work in makingsure that everything is in place for theimplementation of the interim provisionsof the Brady Act. They deserve to berecognized for having gone above andbeyond the call of duty within the shorttime frames they faced.

I also deal with the State Departmentregarding their databases which containinformation on “citizenship renunciates”(people who have renounced their UnitedStates citizenship). Believe it or not, oneof the categories in the Brady Lawprohibits these people from purchasinghandguns.

I also deal with the DefenseDepartment regarding persons who havebeen dishonorably discharged from themilitary. I expect to be dealing soon withother Federal agencies, and even someState agencies, about other categories ofpersons prohibited from purchasinghandguns under provisions of the BradyLaw.

That provides a sense of the manytypes of activities that are going on at theFederal level. Between the efforts of theJustice and Treasury Departments, theATF and the FBI, there is a fair amountof activity going on within the Federalgovernment to get ready for the interimprovision implementation on February28, 1994.

I recognize that all of this pales incomparison to the work that is going onout in the world beyond the Beltway. Weall recognize that the State and localcriminal justice agencies have the realwork to be done, in terms of making theBrady Act and the National ChildProtection Act work. We recognize that

we need you a lot more than you need us.Our pledge is to do everything wepossibly can to make your jobs easier.

Brady implementationLet me explain where things stand

with regard to the upcoming Brady Actdeadline.

On February 28, 1994, gun dealers inthose States which do not have anexisting State law which requires abackground check for handgun purchases— that is, a background check at the timethe gun license or permit is granted, orsome other kind of background check asdescribed in the Brady Law — will, forthe very first time, be obligated to waitfor background checks prior to the saleof a handgun. The Treasury Departmenthas been working steadily with the Statesto determine which States have statutesthat are acceptable alternatives to theBrady-mandated procedures and whichStates will be guided by the Brady Actprovisions. So that proper categorizationscan be absolutely finalized beforeFebruary 28, the ATF has placed eachState in preliminary categories, anddiscussions between the various Statesand ATF are ongoing. We recognize, ofcourse, that even those categorizationswill change over time as States pass newlaws and as procedures change. But asfar as February 28 is concerned, weshould know exactly where every Statestands when the Brady Law goes intoeffect.3

In order to provide guidance to theregulated community — the gundealers— ATF has promulgatedTreasury Regulations, which will bepublished in the Federal Register andwidely distributed within the next fewweeks.4 In addition, ATF has been

3 A preliminary list was prepared by ATFwhich categorizes all 50 States (1) as subjectto the Brady Law’s 5-day waiting period, or(2) as having alternative systems which meetthe Brady Law requirements, or (3) as notfalling fully within either category. This list,dated January 19, 1994, is included in thisreport as Appendix 2.4 U.S. Department of the Treasury, Bureauof Alcohol, Tobacco and Firearms,“Implementation of Public Law 103-159,

conducting planning meetings at thelocal level and providing practicalinformation about how Brady is intendedto work, in an effort to resolve State-by-State questions regarding the officialswho will fulfill the Chief LawEnforcement Officer function withineach State.

The FBI has been working hard tomake sure that they are ready to conductcompetent Brady checks through theNational Crime Information Center(NCIC) system. The FBI is currentlypreparing relevant updates of the NCICuser manual and is conducting trainingsessions for law enforcement personnelfocusing on the technology involved inimplementing the Brady Act.

Finally, leading up to the February 28,1994, deadline, the Justice Department,the FBI, the Treasury Department andthe ATF have been working to ensurethat we are in sync in terms of the advicewe provide to the law enforcementagencies throughout the country. Somemailings have gone out, and there aremore to come. The Justice Departmentwill soon be able to provide some kind ofmanual or written guidelines to ease theimplementation crunch, which we knowis coming to the States for whichbackground checks are new. We remainconfident, however, that on February 28,gun dealers will know their obligationsand the law, as will law enforcementagencies.

We recognize that it is all of you andyour colleagues who will actuallyimplement this law. We also recognizethat February 28 is only the beginning.While background checks will becomethe national rule for handgun purchaseson that date, we all know that the recordsneeded to support the computerizedinstant record check system — whichmust be in place by November 30, 1998— are woefully inaccurate andincomplete.

Including the Brady Handgun ViolencePrevention Act,” Federal Register (14February 1994) vol. 59, no. 30, pp. 7110-7115. (To be codified at 27 C.F.R. §178.)


Record improvementsOur commitment at the Justice

Department is to do everything we can toassist the States in improving the qualityof, and the access to, their criminalhistory records. There are a number ofsteps being followed in the Brady Lawwhich will result in improved records. Tothose who are skeptical about the valueof the Brady Law as a crime-fightingtool, I encourage them to remain open-minded and enthusiastic about theopportunities it provides for myriadcriminal history record improvements.

Through this legislation, $100 millionhas been included in the President’sbudget for fiscal 1995 for criminalhistory record improvements. I recognizethat the President’s budget, which wasreleased this week, did not include goodnews for everybody. The budget did notinclude the Bureau of Justice AssistanceByrne formula grant money that, inprevious years, had required a 5 percentset-aside for criminal history recordimprovements. So although these fundswere not included in the President’sbudget, the budget does includedramatically more funds than ever beforetargeted for such improvements. Thus,for those who considered this issue apriority, criminal history recordimprovements were a winner in thePresident’s budget. It is our expectationthat those funds will be used forimprovements which will advance thegoals of the Brady Act, advance thegoals of the National Child ProtectionAct, and advance all the other purposesfor which criminal histories are used.

What are the steps the Federalgovernment is taking toward improvingcriminal history records?(1) BJS, the Justice Department and

SEARCH will be conducting aneeds assessment survey — findingout where the States are and whatneeds to be done. The survey willhelp us gather information so wecan ascertain the status of Staterecords systems in order toappropriately move forward.

(2) Once the survey is completed, wewill work with the States to

establish the timetables for recordsimprovement which the Brady Lawrequires the Attorney General toestablish for each State.

(3) Then, we will begin planning thedispersal of Brady Act grant fundsin accordance with the timetables.It is our clear intention to ensurethat those timetables are developedthrough discussion and negotiationwith the States, and that they arenot just dropped down on the Statesas a mandate from the JusticeDepartment.

(4) In addition and simultaneously tothese tasks, the effort has begun todetermine the technology and thesystems protocols that will be usedfor the national instant criminalbackground check system (NICS).By the mandates of the Brady Act,by June 1, 1994, the AttorneyGeneral must make a declaration ofthe system and the technology thatwill used.5

(5) Finally, we will continue to worktoward gaining access to otherdatabases that will provide morespecific information about personsprohibited from purchasinghandguns. We want those databasesto be checked in the most simple ofways; we do not want to worryabout calling multiple sources inorder to check multiple databases.

Making Brady workThis is what is happening on the

Federal front, while operational criminaljustice agencies are trying to make all ofthis work out as a reality at the Statelevel. You will be conductingbackground checks and updatingcriminal records; you will be trackingdown dispositions when a computershows an arrest but nothing more; andyou will be gathering statistics and data

5 The Attorney General issued the NICSdeclaration in the Federal Register. U.S.Department of Justice, Office of the AttorneyGeneral, “National Instant CriminalBackground Check System,” CAG Order No.1882-94), Federal Register (1 June 1994) vol.59, no. 104, p. 28423.

to respond to surveys and support yourgrant requests. I also believe that youwill be keeping guns out of the hands ofthose who should not have them, andguaranteeing more reliable criminalhistory information to those who need it.You will be actively helping to preventcrime in your community, making it asafer place to live.

We have a lot of work to do here atthe Federal level to make the Brady Actwork, to make the National ChildProtection Act work, and to improve thequality of criminal history records acrossthis country. At the same time, weunderstand that the work we have to dodoes not compare to what the States face.So, as February 28 and June 1 come andgo, please do not hesitate to ask for help— to demand help — when you thinkthere is something we can do to makeyour jobs easier.

Thank you for your interest and yourcommitment to this effort.


Brady Act: The Department of Treasury perspective

REBECCA L. HEDLUNDLegislative Policy Advisor to the

Assistant Secretary, EnforcementU.S. Department of the Treasury

At the U.S. Treasury Department, wehave been very active and concernedabout the implementation of the BradyAct.1 We have been working very hardand closely with our Bureau of Alcohol,Tobacco and Firearms (ATF) and withthe Department of Justice. We have beenreaching out to State and localgovernments, law enforcement agencies,a number of interest groups and tradeassociations. The Secretary of Treasuryand the Assistant Secretary forEnforcement have both spoken a numberof times about the importance of theBrady Act implementation. They foughtvery hard to get it enacted, as did manyof you, no doubt, and they are nowanxious for us to move forward towardFebruary 28, 1994, with a good system inplace.2

Key to this effort, of course, are thecriminal history records that the Statesmust have in place. I think the JusticeDepartment and the States have a rough5 years ahead of them as they worktoward development of a national instantcheck system.

ATF, of course, has the authority andresponsibility to actually implement the5-day waiting period. A number ofnotices have been sent to agencies, tolaw enforcement officials, and to otherinterested parties concerning what will

1 Brady Handgun Violence Prevention Act,Pub. L. No. 103-159 (November 30, 1993).The text of the Brady Act is included in thisreport as Appendix 1.2 Beginning February 28, 1994, the BradyAct requires all States to begin conductingpre-sale criminal history background checksof handgun purchasers and imposes a 5-daywaiting period to enable those checks to becompleted.

be involved and what they are going tohave to do on February 28.

Treasury Secretary Lloyd Bentsen hasstated that he wants to have theregulations available before the February28 deadline. ATF has been workingdiligently to meet that deadline, and Ithink the regulations will be availablenext week — 2 weeks ahead ofschedule.3 Given the very tight timeframe, we are very pleased and veryproud of ATF for doing such a terrificjob.

In any event, I am going to keep mypresentation short and turn it over to BobCreighton. He is the Special Agent inCharge of ATF’s Florida Field Division,and was recently appointed to serve asthe National Brady Law Coordinator forATF. He has a lot of background interms of State and local governmentcooperation, in management and in fieldfirearms enforcement work. We areextremely pleased to have had him headup the effort at ATF for the last fewmonths.

3 U.S. Department of the Treasury, Bureauof Alcohol, Tobacco and Firearms,“Implementation of Public Law 103-159,Including the Brady Handgun ViolencePrevention Act,” Federal Register (14February 1994) vol. 59, no. 30, pp. 7110-7115. (To be codified at 27 C.F.R. §178.)


Brady Act: The Bureau of Alcohol,Tobacco and Firearms perspective

ROBERT J. CREIGHTONATF Brady Law Coordinator

Bureau of Alcohol, Tobacco and FirearmsU.S. Department of the Treasury

In looking at the tasks facing us afterthe Brady Law was passed, we realizedthat the Bureau of Alcohol, Tobacco andFirearms (ATF) would have atremendous education process to gothrough — and, as such, a tremendousinformation-sharing process. Of course,any time a law is passed, one of the firstthings that must be done is forregulations to be developed andproduced. I must say, the TreasuryCounsel who works on a daily basis withATF has done an outstanding job inwriting them. Certainly these regulations,which have just been written, willprobably set a new regulationscompletion deadline record in theFederal government.

After the regulations were written,they had to go through a full review atthe U.S. Treasury Department. We alsohave asked the Justice Department togive us comments. They were able togive us some excellent feedback whichwe were able to include in theregulations. I am happy to report that, aswe speak, the regulations are beingdelivered to the Federal Register, and wehave a commitment that they will bepublished by February 14.1

Upon issuance of the regulations, wefelt there were many more things thathad to be done. We had to look at justwho was affected by these regulations.


We now realize that the group which isaffected — that is, the group which mustactually implement the regulations — ishuge: about 280,000 licensed Federalfirearms dealers in the United States. Inaddition, about 22,000 law enforcementofficials nationwide are affected aswell.2

Information processAs the regulations were being

developed, we felt we had to go forwardand start the information analysisprocess. One of the first things everyonewanted to know was: “Where do I fall inBrady? How will Brady affect myState?” To help with this, ATF hasdeveloped a number of forms,instructions and letters.

To begin this process, we issued aone-page list titled “Preliminary list ofStates subject to the Federal five daywaiting period or States havingalternative systems as defined in thelaw.”3 This is just a preliminary list; thislist is likely to change, and it may verywell continue to change right up through1998, when the Brady-mandated nationalinstant check system must be ready.

To develop this list, we asked ourField Counsel to visit all the States andobtain copies of whatever regulationsthey found for instant check or permitapproval systems. After reviewing thoseregulations with the various legal counseland our staff, we compiled this list. The

2 These figures were obtained from theUniform Crime Reporting lists provided bythe FBI.3 This list, dated January 19, 1994, isincluded in this report as Appendix 2.


States are actually divided into threecategories:(1) “States Which Must Comply With

the Federal 5-day Waiting Period.”We define those as the “BradyStates.”

(2) “States Which Meet One of theAlternatives to the Federal 5-dayWaiting Period.” We define thoseas the “Alternative States.”

(3) “States Which May Not Fall FullyWithin Either Category.” For thesefew States, there are some areas intheir State law which we do notview as an acceptable “fullalternative” to the Brady Act. Forinstance, a State’s handgun permitlaw may not cover all felonyconvictions; it may only coverfelonies involving violence. Ofcourse, since the Brady Lawaddresses all felonies, the list standsas it is.

After the State list was finalized, weworked on disseminating the informationquickly. Keep in mind, with a group sizeof 280,000 recipients, we felt we had toget something into the hands of thelicensed firearms dealers as soon aspossible. The only way to accomplishthis major task was through the use ofmass mailings.

For that purpose, we developed twoseparate informational letters to send out.We decided it was necessary to break ourcommunication into these twocategories:(1) Brady States were sent an “Open

letter to all Federal firearmslicensees subject to the waitingperiod provisions of the BradyLaw,”4 and

(2) Alternative States were sent an“Open letter to all Federal firearmslicensees not subject to the waitingperiod provisions of the BradyLaw.”5

ATF then developed a form titled“Statement of intent to obtain a

4 This letter is included in this report asAppendix 3.5 This letter is included in this report asAppendix 4.

handgun(s).”6 Most people refer to thisas the “Brady Form.” It collects all theinformation from the purchaser which isrequired by the Brady Law. However,after we developed the original form, wetalked to officials at the FBI NationalCrime Information Center (NCIC) andwith terminal managers throughout thecountry. They convinced us that stillmore information was needed. So weincluded certain “optional information”boxes on the form: Social SecurityNumber, height, weight, sex and place ofbirth. Not only is it advantageous to havethis additional information on the BradyForm for those law enforcement officialswho will conduct the criminal recordschecks, but it is also beneficial for thesale of the gun because it can clear upany questions of identity. At the veryleast, it will speed up the process tocompletion.

Disseminating Brady information— Licensed firearms dealers

With the development of the BradyForm and the two informational letters,we have been able to disseminate Bradyinformation to licensed firearms dealersin both Brady States and AlternativeStates. In the Brady States, the licensedfirearms dealers were sent aninformational package containing theletter and a list of States subject to theBrady Law provisions. This put them onimmediate notice as to where they fallwithin Brady Law requirements. Thepacket also included Brady Forminstructions, and information on how toobtain more forms. The licensed firearmsdealers in the Alternative States — thosewhich already require backgroundchecks of handgun purchasers — weresent the letter regarding the requirementsimposed on them by the Brady Law.

Multiple sales of firearms now have tobe reported to the State and local policeand to the Chief Law EnforcementOfficer (CLEO) in the purchaser’s placeof residence. For years, ATF has beenreceiving the “Multiple Sales” form andhas found it to be quite an interesting

6 This form is included in this report asAppendix 5

document. As a law enforcement tool, itgives us a good indication as to who istrafficking in firearms. For instance, ifsomeone is going from gun dealer to gundealer to gun dealer, buying five, six or10 firearms in a short period of time, youcan almost be certain that the person isinvolved in a trafficking scheme. Thistracking tactic has been a strategy for usin enforcing the Gun Control Act of 1968for many years, and it certainly is goingto be of value to State and local lawenforcement as they join us ineliminating firearms trafficking.

— State and local law enforcementAlso, we realized that not only do we

want to get immediate information out tothe licensees — the dealers — but wealso had to get information out quickly tothe law enforcement community as well.In January 1994, we sent out an “Openletter to State and local law enforcementofficials,” which provides an overview ofthe Brady Act, and walks through theparticulars of the Act in finer detail,noting what is going to be required ofState and local law enforcement byFebruary 28, 1994.7

Generally, up until now, a handguntransaction in most States was betweenthe purchaser and the dealer . Then, if theperson committed a horrendous crime ora series of violent crimes, the role of thelaw enforcement officials, at that point,was reactive. Law enforcement woulddeal with the situation after it occurred.

But after February 28, 1994, that willchange with respect to handguns. Thelaw enforcement community is going tobe involved proactively. Before thehandgun is even sold, there will be anup-front involvement by the lawenforcement community through theconduct of a criminal records check.Because of the many differingcircumstances covered by the BradyLaw, the new compliance informationneeds to be conveyed. Again, in the caseof 22,000 State and local lawenforcement officials, we had to do thatquickly.

7 This letter is included in this report asAppendix 6.


Input from the StatesThe key part of ATF’s information

strategy was not simply a mass mailing.We held meetings with State and locallaw enforcement agencies and officialsthroughout the United States. Early in thedevelopment process, we were makingcontact with the ATF Special Agentswho were in charge of our lawenforcement field divisions, our RegionalDirectors of Compliance Operations(whose job it is to regulate the industryand assist law enforcement in firearmsmatters), and the Legal Counsel we arefortunate to have in the various regions.We asked them to join together and forma team; to familiarize themselves withthe Brady Law; and to read both the Lawand all the information we had preparedand distributed to date. From there, theymade contacts with the State and locallaw enforcement community.

In conjunction with that strategy, ATFsent a letter to all State AttorneysGeneral explaining the Brady Law andasking them to get involved in thisprocess at the State level. I am verypleased to report that in the past 2 weeks,we have had hundreds of worthwhilemeetings throughout the United States —good meetings where we have been ableto discuss the Brady Law, talk aboutwhat it means, discuss what an excellenttool it can and will be for lawenforcement, discuss the needs out there,and, finally, recognize that it is out theredoing good and that checks should bedone.

When discussing the area of criminalrecord checks, we must realize that theonly check that is universal right now —that is, the only check that can be done inevery State — is the check for a criminalrecord. At the same time, however, wemust also recognize that there are someStates which can conduct a check inother areas, such as mental healthrecords, to see if the individual has beencommitted, adjudicated or declaredmentally defective. If States can conductchecks that extend beyond criminalhistory records, we encourage them to doso.

There are a couple of issues we areexploring and trying to resolve in thosemeetings. One is that there is still muchto be done to educate the States about therequirements of the Brady Law. Mostimportantly, before February 28, we needto identify those officials in each Statewho will serve as Chief LawEnforcement Officers (CLEO) and whowill be responsible for conducting theBrady handgun sale checks.

As mentioned, we have been requiringATF field personnel to report inconcerning the results of our Brady Lawinformation effort. From information wehave received thus far, it appears nine ofthe Brady States (those which mustcomply with the Federal 5-day waitingperiod) have already made a decision asto how they will work.

The next step will be to produceanother informational letter. This time,we plan to send the letter to the CLEOsand to all the firearms dealers, advisingthe dealers (1) who the CLEO is in theirarea, and (2) where they should go afterFebruary 28, 1994, to request the Bradybackground check. Meanwhile, thedealers in the Alternative States, such asFlorida, Delaware, Maryland andWisconsin, will continue to do businessas usual, using the records check orpermit systems already in place in theirparticular State.

Final preparationsAs the next 2 weeks unfold, we hope

to be issuing letters on a daily basis toeach State in order to assist them inascertaining whether they are functioningcorrectly. Because we want to beabsolutely certain these letters are correctin content, we will send the letters backout to our field entities and ask them toverify the following: “Is this the result ofthe meetings, conversations anddiscussions which you had in yourparticular State?” Once the letter isconfirmed, we will then be able to send itto the firearms dealers. When February28 comes, we feel confident that thedealers in a Brady State will have asupply of Brady Forms on hand withinstructions on where it should be sent.

By way of our contact with lawenforcement, we also intend to use aidslike the National Law EnforcementTelecommunications System and othermeans of communicating messages toevery State and the law enforcementcommunity about what our currentsituation is and what they can expect. Webelieve that when the law goes into effecton February 28, there will be goodcompliance in virtually every State.

As the date draws nearer, we areasking our Compliance Operationspersonnel to continue to hold meetings.We plan to start conducting firearmsseminars which we will invite all thelicensed firearms dealers to attend. Thisis the process we have used for manyyears. These meetings will explain theBrady Law process even more fully andwill answer any questions individualsmay have.8

We also have instructed our fieldpersonnel to be as prepared as possible.If we must employ several thousandpeople to go out into the field, makethese contacts and solve problems (thatis, answer telephones, give advice to afirearms dealer or help a lawenforcement official), we are going to doit. And, as time goes on, if we see that aparticular State is not resolving itsparticular issues or problems, we plan tovisit that State, hold additionalinformation meetings, and make theBrady process work.

We are committed to a process whichwe believe, on February 28, 1994, willensure that a good quality criminalhistory record check will be done onevery handgun sale in the United States.Further, as new systems are developedand technological advances are made, weare committed to support State- ornational-level use of any other recordcheck which may be possible.

8 ATF also developed, continually updatedand distributed a “Questions and Answers”sheet on the Brady Act. A copy of this, datedMarch 18, 1994, is included in this report asAppendix 7.


Setting the stage

Requirements, regulations and proceduresof the Brady Act: Panel

Moderator’s remarksRobert R. Belair

Brady Act regulations and requirementsStephen R. Rubenstein

FBI operational status report andFelon Identification in Firearms Sales Program

Virgil L. Young Jr.

Report of study on identifying persons,other than felons, ineligible to purchase firearms

Thomas F. Rich


Panel on requirements, regulations and proceduresof the Brady Act: Moderator’s remarks

ROBERT R. BELAIRGeneral Counsel

SEARCH

First, let me say a brief word aboutthis panel. They are experts and excellentspeakers, and each has worked hard toprepare informative material andillustrations to enhance his presentation.We plan to talk about what the Congressdid not do in terms of the Brady Act.1

And that is not so much a criticism of theCongress as it is an expression of theextremely difficult issues the Congressfaced — difficult from a policystandpoint and difficult from a politicalstandpoint. As you know, it took theCongress 7 years, and the instant checksystem provision was really anafterthought. The Brady Bill started outbeing a “waiting-period” bill. So, rightfrom the beginning of the introduction ofthe background check discussions, therewas significant confusion andmisinformation, a great deal of debateabout timetables, architecture andFederal help. Yet with the bill now inplace, many if not most of thosequestions still remain unresolved.

Today we will talk about (1) what is areasonable effort in a pre-instant checkenvironment; (2) what should thenational instant check design look like;and (3) what about other Brady-typedatabases? It seems to me the reason theCongress left so much unresolved is thatthe Brady Act is truly ambitious. I thinkthat most proponents and opponentswould say it may not be ambitious fromthe standpoint of curing the problems ofgun violence. However, the notion thatthere could be a national point-of-salesystem, with checks on a name basis and

1 Brady Handgun Violence Prevention Act,Pub. L. No. 103-159 (November 30, 1993).

which could be initiated by noncriminaljustice, is unprecedented.

Many of you know that in 1988, theCongress directed the Attorney Generalto “develop a system for the immediateand accurate identification of felons whoattempt to purchase” firearms.2 TheBrady Bill is really a follow-up to thatlegislation. Now, 6 years later, we arestill a long way from having a system (atleast on a national basis) for theimmediate and accurate identification offelons who attempt to purchase firearms.From an information standpoint, thereason for that is that the implementationof such a mandate requires extensiveautomation, telecommunications, afelony flagging or identificationcapability, adequate dispositionreporting, on-line identificationcapability, and strategies for sharing thisinformation on a national basis. For someStates, this is a tremendously ambitiousundertaking.

There is also controversy associatedwith a national system. For instance,once the system is in place, how longwill it be before other potential userscome along with compelling needs tosay, “We have to get into an instantnational background check system.” Wealready see shades of that possibilitywith the National Child Protection Act.

At the same time, there has been asignificant learning curve for theCongress. This has turned out, however,to be a benefit, in that Congress is farmore educated today about criminalrecord systems, about problems whicharise in these record systems and about

2 Anti-Drug Abuse Act of 1988, §6213,Pub. L. No. 100-690, 102 Stat. 4181.


the importance of these record systems.We see real evidence of that benefit inwhat happened with the Brady Act: theBrady Act originally had a $100 millionauthorization, but the Senate changedthat, and now the law has a $200 millionauthorization.

Let me close by providing anoverview of the panel presentations:Stephen Rubenstein from the TreasuryDepartment will discuss checks that aredone in a pre-national instant checkenvironment, as well as the draft Bradyregulations being developed by theBureau of Alcohol, Tobacco andFirearms. Virgil Young from the FBIwill focus on Federal capabilities for anational instant check system. AndThomas Rich from QED is going to lookahead at the databases that would betapped if you were to do a completecheck (under the 1968 Gun Control Act)to identify all the individuals who, underFederal law, are disabled frompurchasing firearms (such as illegalaliens, those who are dishonorablydischarged from the military, drug usersand mental-defectives).


Brady Act regulations and requirements

STEPHEN R. RUBENSTEINSenior Counsel, Firearms and Explosives Unit

Office of the Chief CounselBureau of Alcohol, Tobacco and Firearms

U.S. Department of the Treasury

Before I discuss the Brady Lawregulations which will be published inthe Federal Register on February 14,1994, I want to talk briefly about how theBrady Law generally fits in terms of theFederal firearms laws.1 Many of you areaware that the Brady Law amended theGun Control Act.2 Perhaps for some ofyou, the Brady Law is your first contactwith the Federal firearms laws.

The Gun Control and Brady ActsSince 1968 and the passage of the

Gun Control Act, the Bureau of Alcohol,Tobacco and Firearms (ATF) haslicensed manufacturers, importers anddealers in firearms. Under the GunControl Act, these persons generally cansell firearms to residents of their ownStates. They must abide by State andlocal laws in making these sales. Theyalso must keep detailed records of alltheir firearms transactions. Lastly, theserequired records and forms inventoriesare subject to inspection by ATF. Inaddition, Federal firearms licensees areprohibited from selling firearms to anyperson they know (or have reasonablecause to believe) might fit into one ofseven enumerated categories. (These arethe same categories which are nowapplicable under the Brady Law.)

Since 1968, it has been unlawful forlicensees to sell firearms to persons who:

1 Brady Handgun Violence Prevention Act,Pub. L. No. 103-159 (November 30, 1993).The text of the Brady Act is included in thisreport as Appendix 1.2 Gun Control Act of 1968, 18 U.S.C. §§921-930.

• Are under indictment for, or who havebeen convicted of, a crime punishableby more than a year in jail;

• Are fugitives from justice;• Are unlawful users of, or addicted to,

a controlled substance;• Have been adjudicated as a mental

defective, or committed to a mentalinstitution;

• Are aliens who are illegally orunlawfully in the United States;

• Were dishonorably discharged fromthe military; and

• Have renounced their United Statescitizenship.Despite the existence of these

“prohibited” categories, there was onlyone Federal requirement aimed atpreventing persons who fit in thesecategories from purchasing a firearm: thebuyer had to complete the ATF Form4473 (what is known as the “FirearmsTransaction Form”). On this form,buyers certified their name andresidence, and stated that they did notfall within any of those “prohibiting”categories. In those States that have noinstant background check system, permitprocedure or waiting period for firearmspurchases, the licensee examined thisform and made a determination as towhether the buyer had filled it outcorrectly. If so, the licensee then made anover-the-counter transfer of the handgunor other firearm.

The Brady Law has now added anadditional means of screening outprohibited purchasers by imposing awaiting period of 5 business days.During that time, the dealer is required tonotify the Chief Law EnforcementOfficer (CLEO) of the purchaser’s


residence of the proposed sale of ahandgun.

As mentioned, the Brady HandgunViolence Prevention Act amended theGun Control Act of 1968. Thus, becausethe ATF has authority to enforce the GunControl Act, it enforces the Brady Act aswell.

Since the Federal firearms licenseeshave been working with the Gun ControlAct for many years, I believe they havesomewhat of an advantage over State andlocal law enforcement agencies. They areaware of the requirements of the GunControl Act and who they can and cannotsell firearms to. They are aware of all therecordkeeping provisions of the law, plusthe form requirements. To lawenforcement agencies, however, this isall very new. Like others affected byBrady, law enforcement agencies want to(1) know what is required of them, and(2) be sure they do all that is required ofthem.

Brady regulationsIn order to implement the Brady Law,

ATF has issued regulations which serveto advise the firearms industry of whatthe law requires them to do.3 Theseregulations contain the nitty-grittyspecifics of what the law will require ofthem. (In that regard, like other Federalagencies, ATF issues regulations for theregulated industry and the law stipulateswhat is required.) Normally when weissue regulations, we issue what is calleda “Notice of Proposed Regulation.” Thistells everyone involved that the ATFintends to issue regulations to implementa particular statute. The Gun Control Actrequires that we give at least a 90-dayperiod for “Notice and Comment” onthese regulations before we issue whatare called the “Final Regulations.” Afterreceiving the comments and input, weevaluate whether the proposed


regulations should be modified in anyway to reflect that input.

Unfortunately, the regulations thatwill be published on February 14, 1994,could not go through the typical “Noticeand Comment” process because of thetight time frame that was involved. Thus,they will be issued as “TemporaryRegulations,” effective on February 28,1994. At the same time, ATF will alsoissue a “Notice of ProposedRulemaking,” which will serve to advisethe public that these regulations havebeen issued, but to also indicate that weare still requesting comments. There willbe a 90-day period during which thosecomments can be received, and we willsolicit comments on these regulationsfrom criminal justice officials, firearmslicensees and the public at large. Afterthe comment period closes, thecomments will be evaluated and, at somepoint, final regulations will be issued toimplement the Brady Law.

The regulations are directed primarilyat Federal firearms licensees. They arethe persons who must be licensed byATF in order to do firearms business.The regulations present, in some detail,what is required and imposed upon thelicensees under the new Brady Law.

Brady State requirementsThe Brady Act itself is relatively

straightforward in stating what isrequired of a licensee when a personcomes in to purchase a handgun afterFebruary 28, 1994. Let us talk primarilyabout the requirements imposed on the“Brady States” (States in which firearmslicensees must comply with the Federal5-day waiting period).

The Federal firearms licensee mustobtain a Statement of Intent to Obtain aHandgun(s), the so-called Brady Form,from the buyer.4 The Brady Form hasthe buyer’s name, address and date ofbirth on it. (This information must alsoappear on a valid photo identification.)The buyer must certify that he does notfall within any of the categories whichprohibit him from purchasing the

4 The Brady Form is included in this reportas Appendix 5.

handgun. The dealer (or other type oflicensee) must then verify the buyer’sidentity by examining the photoidentification presented, and must noteon the form what valid form ofidentification is used.

At that point, two things have to occurwithin 1 day after the buyer furnishes theBrady Form to the dealer:(1) The dealer must provide notice of

the information on the form to theChief Law Enforcement Officer(CLEO) of the buyer’s place ofresidence.

(2) The dealer must transmit a copy ofthe form to that particular CLEO.

These two requirements might be done atthe same time. For instance, the licenseemay fax a copy of the form to the CLEO.This would provide not only notice of theform being filed, but also would providethe copy of the form. Or a licensee mightwalk down to the local Police Chief andhand-deliver the form within the 1-dayperiod. That would also qualify asproviding the actual notice along with acopy of the form. On the other hand, thedealer may do business a long distancefrom the CLEO, so the Brady Actcontemplates that dealers can providenotice of the Brady Form contents to theCLEO via telephone . The dealer mustthen note on the form that the CLEO wasnotified via telephone, and then thedealer also must send a copy of the formto the CLEO.

Next, the dealer must wait 5 businessdays (from the date the CLEO receivednotice of the sale) before transferring thehandgun to the buyer. If the dealerreceives notice from the CLEO that thereis no information that indicates the buyerwould be violating the law by obtainingthe handgun, then the transaction can becompleted before the 5 days haveelapsed. Once that information is relayedback to the dealer, the dealer cancomplete the sale. If the dealer hearsnothing at all from the CLEO, the dealermay complete the sale after the end ofthe fifth business day.

Brady exceptionsThere are certain exceptions or

alternatives to the 5-day waiting period


required by the Brady Law. In fact, manyStates have permit, approval-type orinstant check systems in place which areacceptable alternatives to the 5-daywaiting period.

— PermitsThe first is the permit exception. In

those States that issue permits to personsobtaining handguns, a records check ofthe individual is conducted before thepermit is issued. And if a permit has beenissued to the buyer within the past 5years, dealers in those States will nothave to fill out a Brady Form. However,those dealers will have to keep a recordof the fact a permit was issued. (Thisallows ATF to ascertain whether thedealer has complied with the provisionsof the Brady Law.)

— Pre-sale background checksThe second alternative is systems

which conduct background checks at thetime of sale. This varies in differentStates. In some States, like Virginia andFlorida, the system involves aninstantaneous criminal history recordcheck of the handgun purchaser. OtherStates have systems in place in whichbackground checks are conducted at thetime of sale. That is, the buyer fills outan application at the time of the firearmpurchase; the application is sent toauthorized government officials; and thebuyer faces a waiting period of a certainnumber of days (typically five or seven)so that a record check can be done.

— Threat to lifeThe third alternative involves a

“threat to life.” The buyer provides thedealer with a written statement obtainedfrom the buyer’s CLEO, stating that thebuyer requires a handgun because of athreat to the buyer’s life or any memberof the buyer’s household. This writtenstatement must be dated within the 10-day period of the buyer’s most recentproposal to acquire a handgun.

— Firearms “class”The fourth alternative pertains to a

certain class of firearms which fall underthe National Firearms Act (which

controls certain types of weapons such asmachine guns, short-barrelled shotguns,short-barrelled rifles and destructivedevices).5 A small class of handgunsfalls within the purview of this Act. Inorder to purchase one of those firearms,the buyer must submit an application,pay a tax and undergo a completecriminal history record check. When thatapplication is approved by ATF, thebuyer can pick up the firearm from thedealer. Buyers of these types of firearmsdo not have to comply with the Bradycheck.

— Geographic alternativeFinally, certain purchases fall within

what is known as the “geographicalalternative” to the waiting period. TheBrady Law anticipated that there may besome areas of the Nation where, becauseof the area’s remoteness, it would beimpractical to notify the CLEO of thebuyer’s intent to obtain a handgun. Thelaw says the ATF has to look at the ratioof the number of law enforcementofficers in the State in relationship to thenumber of square miles of land in theState (not to exceed .0025); whether thelicensee’s business premises areextremely remote relative to the locationof the CLEO; and whether there is anabsence of telecommunication facilities.

Dealers who believe they fall withinthis “geographical alternative” have tosubmit two things: a request to ATFstating that they believe they fall withinthe alternative, and relevant supportinginformation. Should the dealers becertified by ATF as meeting therequirements of this alternative, theywould then be exempt from the 5-daywaiting period requirements.

Brady transactionsTypical Brady transactions will go

like this: the dealer will call or send theBrady form to the CLEO. In many cases,the dealer will not hear back from theCLEO, and at the end of the fifthbusiness day, the handgun can betransferred. It will be business as usual.The dealer is still required to keep both

5 26 U.S.C. §5801-5849.

the Firearms Transaction Form (ATFForm 4473) and a copy of the BradyForm indicating that the dealer hascomplied with the requirements of theBrady Law.

We anticipate that, in most situations,this type of transaction will occur on adaily basis. Of course, on February 28,1994, we hope to have copies of theregulations, the forms, and the list of theCLEOs within each respectivejurisdiction in the hands of all licensees.We understand what can happen when anew law is implemented. Obviously,ATF stands ready, along with theTreasury Department, the JusticeDepartment and, most importantly, thelocal police organizations, to help ensurethat the law is implemented in as smootha manner as possible.

We all recognize there will be uniquesituations in which a dealer simply willnot know who to call. He or she willbelieve the correct contact has beenmade with the right CLEO. But thatperson might say, “I’m not the rightCLEO” or “You need to talk to someoneelse.” We recognize theseinconveniences will probably happenduring the first part of theimplementation of the Brady Law. Wealso recognize, however, that a vastmajority of Federal firearms licenseeswant to make sure that they comply withthe law. Like law enforcement agencies,the dealers want to ensure that peoplewho should not obtain handguns, do notobtain them. They have as big a stake inthis as those of us who work for theFederal government and those of youwho work for State and localgovernment.

Thus, on February 28, 1994, and thedays that follow, we stand ready to assistthe licensees and law enforcementofficers within the country, to ensure thatthe Brady Law can be implemented assmoothly as possible. We want to worktogether to meet the goal of the BradyLaw: to ensure that those persons whoare not entitled to handguns do not getthem, and yet those persons who areentitled to handguns can receive them.


FBI operational status report and Felon Identificationin Firearms Sales Program

VIRGIL L. YOUNG JR.Section Chief

Programs Development SectionCriminal Justice Information Services Division

Federal Bureau of Investigation

First, I would like to comment on theremarks made previously by my learnedcolleague, Kent Markus. Kent said hethinks the Bureau of Alcohol, Tobaccoand Firearms (ATF) has done atremendous job in completing theirassigned tasks in a very short period oftime. I, too, have dealt on almost a dailybasis with ATF since the Brady Law waspassed, and I can say they have done atremendous job.

The FBI has been a bit more fortunatethan ATF, in that we have not been giventhe assignment to do things in such anexpeditious manner. But I think that whatthe FBI will have to do is going to be justas important in the long run, as whatATF has to do is important in the short-term.

Of course, one of the things we mustdo is to develop a design for the nationalinstant criminal background checksystem (NICS) which must be in placewithin 5 years of the passage of theBrady Law.1 Unfortunately, we have tocome up with a design for that system byJune 1, 1994. We also have to be able totell the gun dealers how they are going tocontact the national system, and we haveto tell law enforcement what the systemis going to look like. So we do have a bigtask ahead of us in the next few monthsas well.

My discussion today covers thefollowing:• The system requirements of the NICS;

1 The Brady Handgun Violence PreventionAct, Pub. L. 103-159, was passed November30, 1993. The text of the Brady Act isincluded in this report as Appendix 1.

• Activities the FBI will undertake inthe next few months to develop adesign for the system;

• The current status of the InterstateIdentification Index (III), which isgoing to be the foundation for theinstant check system; and

• The Felon Identification in FirearmsSales (FIFS) Program, an ongoingeffort to try to flag convicted felons inIII.

NICS requirementsLet me begin with a discussion of

what the system requirements are forNICS. First, the Brady Law requires thatthe Attorney General establish a nationalinstant criminal background checksystem by November 30, 1998. Itrequires each dealer and Chief LawEnforcement Officer (CLEO) to knowabout the system and how to contact it.Keep in mind, we are not just talkingabout handguns at that point but allfirearms transactions. The most recentfigures that I am aware of indicate thatthere are approximately 7.5 millionfirearms transactions in this countryevery year. This means that by 1998, thesystem will have to be able to handle atremendous number of contacts.

One of our problems in designing thisinstant check system is going to be tofigure out how we are going to take thecurrent State systems — systems that theStates are very pleased with — and retro-fit those into a national system. At thistime, it is our belief that we probably willnot have a completely uniform systemthroughout the country. By that, I mean


that the way the system is contacted mayvary from one State to another.

The FBI held a planning conferenceyesterday with over 150 people from allthe States. We talked briefly about someof the requirements of the system,including things like response times,security, how to ensure that onlyapproved gun dealers have access to thissystem, how we can give them only theinformation they need to know, andwhether or not someone is approved tomake the firearms purchase. We alsodiscussed the timetable the FBI hasestablished for developing andimplementing a design for the NICS.

System design timetableAs mentioned, by June 1, 1994, the

Attorney General must determine thetype of computer hardware and softwarethat will be used to operate the nationalinstant criminal background checksystem mandated by the Brady Law, andthe means by which State recordssystems and Federal firearms licenseeswill communicate with the nationalsystem.2 We have established thefollowing timetable for the next fewmonths that will help us meet thisdeadline.• During February 1994, we are going

to issue a Request For Information toindustry so they can tell us whathardware and software has beendeveloped which might be used by thedealers to contact this national system.We are going to take the informationwe collect, review it, and try todetermine appropriate hardware andsoftware for the instant check system.

• In March 1994, we are going to run atopic paper by our regional workinggroups for the National CrimeInformation Center Advisory PolicyBoard (NCIC APB). This will help uscollect ideas from the control terminal

2 The Attorney General issued the NICSdeclaration in the Federal Register. U.S.Department of Justice, Office of the AttorneyGeneral, “National Instant CriminalBackground Check System,” CAG Order No.1882-94), Federal Register (1 June 1994) vol.59, no. 104, p. 28423.

officers and the State identificationbureau chiefs regarding what elementsthey believe should be part of theNICS design.

• In the second week of April 1994, weare going to host a get-together ofState identification bureau chiefs andothers who are experts in thesesystems to help us try to assess ourneeds and capabilities, and to developa design for the overall system.

• During the second week in May 1994,we will present the results of all ourefforts at a meeting of the NCIC APB,and then make our recommendationsto the Attorney General so that shecan publish the design of this systemby the deadline of June 1, 1994.That is our intended schedule. It is an

ambitious one, I can assure you. I hopethat we can do as well in meeting thatschedule as I believe ATF is doing inmeeting their more immediate scheduleshere.

III statusI am going to address the status of the

Interstate Identification Index (III),which is going to be the basis for theinstant check system required by theBrady Law.3 I believe that we are doing

3 The Interstate Identification Index (III) isa national index that draws upon thecombined criminal history record databasesof the State repositories, allowing for theinterstate and Federal-State exchange ofcriminal history record information. UnderIII, the FBI maintains an identification indexto persons arrested for felonies or seriousmisdemeanors under State or Federal law.The complete records, meanwhile, remain ineach State’s criminal record repository or inthe criminal files of the FBI. The index —which contains only identificationinformation, FBI numbers and Stateidentification numbers (SIDs) — serves as a“pointer” to refer inquiries to the State orFederal files where the complete records aremaintained.

Search inquiries from criminal justiceagencies nationwide are transmitted to IIIautomatically via State telecommunicationsnetworks and the FBI’s NCICtelecommunications lines. Searches are madeon the basis of name and other identifiers.The process is entirely automated and takes

very well with the III, and I am verypleased with the passage of the BradyLaw because it is going to focus attentionon the III. More importantly, for theStates, it is going to focus funds onimproving existing criminal historyrecords in State systems.

Why do we need the InterstateIdentification Index? This chart (Figure1) shows that two-thirds of the personswho are arrested have a prior criminalhistory. At every stage of contact, thecriminal justice community must knowwhat the prior arrest record is, what theconviction record is, and so forth, for thatperson who is arrested.

Why do we need something like III onthe national level? Because 20 to 30percent of persons with a prior recordhave been arrested in more than oneState. There has been a lot of talk in thelast few months about the fact that theStates hold over 50 million records onpeople who have been arrested. Theproblem is this: just because informationis available in one State does not mean itis available to other States. Oneparticular State could have a tremendous

approximately 5 seconds to complete. If a hitis made against the Index, record requests aremade using SIDs or FBI numbers and data areautomatically retrieved from each Staterepository holding records on the individualand forwarded to the requesting agency.(Responses are provided from FBI files wherethe State originating the record is not aparticipant in III.)

III ensures high-quality criminal justiceresponses because, in most cases, data aresupplied directly by the State from which therecord originates. At present, the systemoperates for criminal justice inquiries only.Participation in III requires that a Statemaintain an automated criminal historyrecord system capable of respondingautomatically to all interstate andFederal/State record requests.

For more complete information about theIII and national criminal history recordchecks, see Use and Management of CriminalHistory Record Information: AComprehensive Report, U.S. Department ofJustice, Bureau of Justice Statistics, CriminalHistory Information Policy Series, by RobertR. Belair and Paul L. Woodard, SEARCHGroup, Inc. (Washington, D.C.: GovernmentPrinting Office, 1993) pp. 49-63.


automated system available to peoplewithin the State, but unless that systemcan be accessed by an agency in anotherState, it is literally worthless for doing anational check. That is where III comesin.

Twenty-six States currentlyparticipate in the III (Figure 2). Nevadajoined III in December 1993, and weanticipate that additional States are goingto join in the next several months.

The III States have coordinated — or,if you will, “linked” — our computers sothat the records can be updated by theState computer systems or by the IIIsystem. Thus, information that comes outof the State systems is the sameinformation that comes out of the Federalsystem.

Almost 19 million individuals haverecords in III. Some of those people,obviously, have records in more than oneState. But we think that is a tremendousnumber, since this system only becameoperational in 1983. We have beenslowly progressing to make sure that ourcomputers are linked with the States.Although we are very pleased with III,we recognize we have a long way to go.

FIFS ProgramThe Justice Department was mandated

by the Anti-Drug Abuse Act of 1988 todevelop and report to Congress on asystem for the immediate and accurateidentification of felons who attempt topurchase firearms.4 To comply with thatmandate, the Felon Identification inFirearms Sales (FIFS) Program wasimplemented. This program carries overState record flags into the III for flaggingcriminal records. In those States that useIII to conduct firearms-related checks,and if proper programming has beencompleted, operators conducting recordschecks of individuals can immediatelysee from the Index whether that personhas a felony conviction. They do nothave to look at the detailed criminalhistory record. At that point, the Stateoperator knows he or she can deny thesale because that person is disqualified

4 Anti-Drug Abuse Act of 1988, §6213,Pub. L. No. 100-690, 102 Stat. 4181.

from purchasing a firearm under Federallaw.

We began a pilot project with theVirginia State Police in December 1992,and it is currently being accessed bypolice agencies all over the country.There are three separate flags in thesystem:(1) The first is the “F” flag, which is

used when the subject’s recordcontains one or more felonyconvictions. Again, that means thatthe operator conducting the checkdoes not have to look at the detailsof the criminal history record. Atone glance, the operator canimmediately determine that theperson is prohibited frompurchasing the firearm.

(2) The “M” flag is used when thesubject’s record contains only amisdemeanor conviction, and thereare no pending open charges. Thismeans that at that point, theoperator also would not have toperuse the details of the subject’srecord. Rather, the operator canimmediately ascertain that thesubject is qualified to purchase afirearm, even though the subjectdoes have a record in the system.

(3) The “X” flag covers the majority ofthe records. Those are the recordsin which (a) no flag has beenestablished (because no one hasreviewed the record yet to see ifthere is a disqualifying felonyconviction) or (b) there is an opencharge, but no disposition is shown.In these cases, the operator has topull up the details of that subject’scriminal history record to see if itcontains a disqualifying conviction.

After we reviewed the results of thepilot project with Virginia, we found thatit was working very well. At this point,we have expanded the project so that twoother States (Illinois and Missouri) arealso providing their felony convictionflags on-line to the system.

In late 1993, we conducted a surveyasking the other States when they wouldbe able to begin giving us their felonyconviction flags as well. Figure 3 showsthose States that have indicated that they

may be participating in FIFS by 1995 orafter. Figure 3 also shows those Stateswhich have indicated that they have noplans to participate in FIFS. (I believethe one State which cannot participate isNew Jersey because a State law prohibitsdisseminating some of that information.)Finally, Figure 3 shows those Stateswhich did not respond to our survey orwhose response was indeterminate. Still,we are going to pursue this effort.

Figure 4 shows an example of thetype of record that law enforcement willget back from a FIFS request. Basically,the record provides the subject’s name,some descriptive data, fingerprintclassifications, identifying information,and so forth. It also says, “The followingcriminal history record is maintained andavailable from the FBI,” and includes theFBI number. This particular record says,“Court disposition is pending; convictionstatus unknown.” It then lists“Minnesota,” along with an SID and afelony conviction flag, and “Delaware,”along with an SID and an indication ofno felony convictions in that State. Whenthe operator accesses that informationfrom the Index, there is no need to callMinnesota's computer and go into thedetails of the record. Rather, the operatorcan deny that sale immediately basedupon the existence of a felony convictionin Minnesota.

That is basically what we are doingwith the Felon Identification in FirearmsSales Program.


INTERSTATEIDENTIFICATION INDEX

JOINT FEDERAL/STATE PROGRAM FOR THERAPID INTERSTATE EXCHANGE OFCRIMINAL HISTORY RECORDINFORMATION

• Two-thirds of persons arrested havea prior record

• 20% to 30% of persons with a priorrecord have been arrested in morethan one state.

Figure 1: Statistics which support need for the Interstate Identification Index

Electronic Editor’s Note: An electronic version of this page is not available.


Report of study on identifying persons,other than felons, ineligible to purchase firearms

THOMAS F. RICHSenior Analyst

Queues Enforth Development, Inc.

In July 1989, the Bureau of JusticeStatistics selected Queues EnforthDevelopment, Inc. (QED) to conduct astudy to determine if an effective methodexists for the immediate and accurateidentification of persons, other thanfelons, who attempt to purchase firearmsbut who are ineligible to do so underFederal law.1 I am going to provide anoverview of the persons who are in thesecategories, established pursuant to theGun Control Act of 1968.2

These are the key issues we lookedinto when we were doing our study:• Who is and who is not covered under

these categories;• What are the current sources of data

on persons in each of these categories;• What is the category population; and• What are the current legal restrictions

in accessing information on thesepersons.

1 A document providing the highlights andexecutive summary of this study wasprepared by QED and distributed at theconference. It is included in this report asAppendix 8.2 Section 922(g) of Title 18, U.S. Code,stipulates the categories of persons, other thanfelons, ineligible to purchase firearms: (1) aperson who is an unlawful user of, oraddicted to, any controlled substance; (2) aperson who has been adjudicated as a mentaldefective or who has been committed to amental institution; (3) an alien who isillegally or unlawfully in the United States;(4) a person who has been dishonorablydischarged from the U.S. Armed Forces; and(5) a person who has renounced U.S.citizenship. These eligibility categories alsoapply to the Brady Act for purposes ofhandgun purchase denials.

Ineligibility categoriesThere are five categories of persons,

other than felons, who are ineligible topurchase firearms under Federal law.The first two of these categories arefairly straightforward, while the otherthree present unique problems.

— Dishonorable dischargesThe first category is persons who have

been dishonorably discharged from thearmed forces. The Defense Departmenthas an office in California that maintainsan automated database of alldishonorably discharged persons. It isestimated that since 1941, about 20,000people have been dishonorablydischarged. It is a pretty small category.In terms of accessing this information,we were told that these records aregoverned by the Federal Privacy Act,which prohibits access to thisinformation, without the individual’spermission, for any purpose for which itwas not intended.3

— Citizenship renunciatesThe second category is persons who

have renounced their U.S. citizenship. Inthis case, the State Department maintainsan automated database that lists allpersons in this category. Again, it is asmall population — about 10,000 peoplehave renounced their citizenship since1941 or so. About 200 people are addedto this category each year. In terms ofaccessing this information, the FederalPrivacy Act applies here as well, limitingaccess to this information.

3 Federal Privacy Act, 5 U.S.C. § 522a.


— Drug usersA third category concerns unlawful

users of controlled substances. The oneproblem with this category is that thestatute indicates that these personsshould be current users, as opposed toformer users. Unfortunately, when wedid the study, there were nointerpretations from different courts onwhat this actually means. The Bureau ofAlcohol, Tobacco and Firearms (ATF)has indicated that there has to beevidence of some current use. Onepossible way to obtain information oncurrent users is to access drug treatmentdatabases, which are actually protectedby some State confidentiality laws. Onepoint to make about this category,however, is that there is some overlapbetween persons in this category andpersons who are ineligible to purchasefirearms because they are convictedfelons. For example, the NationalInstitute of Justice’s Drug UseForecasting program has demonstratedthat a high percentage of arrestees testpositive for drug use. Thus, Federal andState criminal history databases containmany persons who are not onlyconvicted felons, but who are alsoundoubtedly current drug users who arenot included in any of the drug treatmentor other drug-related databases.

— Illegal aliensA fourth category is illegal aliens. Not

surprisingly, there is no singlecentralized list of all the persons who arein this country illegally. However, theImmigration and Naturalization Servicedoes maintain an automated database ofall persons entering legally which couldbe used to obtain information on thosealiens who have overstayed their visa.However, these “overstayers,” as wemight call them, probably constitute avery small percentage of all illegalaliens. Again, as with some of the othercategories, there is some overlap withother persons whose records are alreadyin the State criminal history repositories.

— Mental health commitments

The fifth category is probably the oneof most interest. Here, the Gun ControlAct indicates that persons committed tomental institutions cannot purchasefirearms. The ATF, along with a numberof different courts, has interpreted this tobe a commitment by courts, authorities,commissions and boards withjurisdiction over mental health matters. Itdoes not cover what are called“voluntary commitments.” The reasonthis is important to understand is shownin Figure 1.

Periodically, the U.S. Department ofHealth and Human Services surveysmental institutions regarding the status ofdifferent persons who were admitted. Atthe time we did this survey, this was themost recent information they had. AsFigure 1 shows, out of the 1.5 millionpersons admitted to mental institutions in1986, about 75 percent came under thecategory of voluntary commitments.These persons, then, would not beaffected by the Gun Control Act.

Figure 1 also shows what are calledthe “noncriminal commitments,” whichconstitute a little under 25 percent of allcommitments. As it turns out, only abouthalf of these persons would be coveredby the Gun Control Act. Remember, thecommitment has to be by a court in orderfor the person to be ineligible to purchasefirearms.

Finally, only about 2 percent of alladmissions to mental institutions are“criminal commitments.” Almost all ofthese persons are, in fact, covered by thestatute. It is important to understand thebottom line: Only about 1 out of every10 persons entering mental institutions in1986 would actually be covered underthe Gun Control Act provisions.

If we are interested in accessing thismental institution information, where dowe go? There are two differentapproaches. One is to go through thecourts. It turns out that almost all personsin this category went through the courtsystem. The State criminal historyrepositories probably have informationon a lot of the criminal commitments. Interms of the other kinds of noncriminalcommitments, there is an obstacle toovercome: strong State confidentiality

statutes which apply to these records.The other possible source of informationis the State mental health departments.Unfortunately, at the time we did thissurvey, almost all State databases onlycontain data on those persons who areadmitted to State facilities (which leavesout admissions to private psychiatricfacilities and veterans’ hospitals, forexample), and that constitutes about halfof all of the persons covered under thisstatute. Again, in almost all States, thereare strict confidentiality statutesprotecting this information. Obviously,there are a lot of obstacles one wouldhave to overcome to access thisinformation.


Existing systems

The Illinois experience: 25 years of firearms controlthrough comprehensive background checks

Gary D. McAlvey

Current presale firearms checks: PanelThe Virginia point-of-sale

Firearms Transaction ProgramCapt. R. Lewis Vass

The Oregon system: Fingerprint checksand the waiting periodLt. Clifford W. Daimler

The California system: Access to other databases,name searches and the waiting period

Edward J. (Jack) Scheidegger


The Illinois experience: 25 years of firearms controlthrough comprehensive background checks

GARY D. MCALVEYInspector, Division of Administration

Illinois State Police

During the past 25 years, Illinois hasattempted to control the purchase andpossession of firearms and firearmammunition through legislation. TheFirearm Owners Identification Card Actand the Firearm Transfer InquiryProgram have combined to provide aneffective firearms control program.

The Firearm OwnersIdentification Card Act

The Firearm Owners Identification(FOID) Card Act was enacted by theIllinois General Assembly, effective July1, 1968.1

The FOID Card Act, the first and onlyof its kind in the country, provides ameans to identify persons who are notqualified to acquire or possess firearmsand firearm ammunition. It provides forthe issuance by the Illinois State Police(ISP) of a Firearm Owners Identificationcard to all qualified persons. The cardhas a term of 5 years.

The FOID Card Act requires a personto have in their possession a currentlyvalid FOID card to acquire or possessfirearms (both long guns and handguns)and firearm ammunition in the State ofIllinois.

— Exclusions and exemptionsThe FOID Card Act defines a firearm

as “any device that is designed to expel aprojectile(s) by means of an explosion, oran expansion or escape of gas.” Excludedfrom the Act are the following:1. Air guns, spring guns and BB guns

which expel a single globularprojectile which is not greater than.18-inch in diameter and whose

1 ILL . REV. STAT. ch. 430, para. 65 (1968).

muzzle velocity is less than 700 feetper second. Paint ball guns whichfire breakable paint balls are alsoexempt from the Act. Thus, .22-caliber pellet guns and those air andpellet guns whose muzzle velocityexceeds 700 feet per second arefirearms covered by the FOID CardAct in the State of Illinois.

2. Signaling devices used on watercraftand their cartridges.

3. Stud guns and their cartridges.4. Antique firearms and ammunition

manufactured prior to 1898.The FOID Card Act exempts

numerous individuals and groups fromits provisions. Included in theexemptions are:• Peace officers;• Veterans groups during parades and

ceremonies as long as blankammunition is used;

• Members of the military whileengaged in official duties;

• Nonresident hunters;• Nonresidents at a firing range or

firearms show recognized by ISP;• Nonresidents whose weapons are

unloaded and cased;• Nonresidents who are licensed to

possess a firearm in their residentState;

• Unemancipated minors in the custodyof a parent or legal guardian; and

• Hunters exempted by the StateDepartment of Conservation.The FOID Card Act provides

reciprocity for the purpose of obtaining,possessing or using a rifle, shotgun andammunition in the contiguous States(Wisconsin, Iowa, Missouri, Kentuckyand Indiana) and for residents of thoseStates 18 or older who obtain, possess or


use a rifle, shotgun and ammunition inIllinois.— FOID application process

A person acquires a FOID card bysubmitting a notarized application whichincludes the applicant’s name, sex, race,date of birth, address, photograph andsignature, and which certifies that theapplicant (and his parent or guardian, ifthe card-seeker is a minor) is notprohibited by law from acquiring a card.Persons are prohibited from obtaining aFOID card if they:• Have a felony conviction;• Are a minor convicted of a nontraffic

misdemeanor;• Are a minor adjudicated delinquent;• Are addicted to narcotics;• Were a patient in a mental institution

in the past 5 years;• Are determined to be a clear and

present danger to themselves orothers; or

• Are mentally retarded.A FOID card application must beaccompanied by a $5 fee, which isallocated as follows: $3 to the Wildlifeand Fish Fund, $1 to the GeneralRevenue Fund, and $1 to the FOIDNotification Fund.

The information contained on a FOIDapplication is entered into the FOIDautomated system. This information isthen used to initiate inquiries into theLaw Enforcement Agencies Data System(LEADS) and the National CrimeInformation Center (NCIC). The LEADSinquiry queries the Illinois ComputerizedCriminal History (CCH) file and Illinoiswanted persons files. The NCIC inquiryqueries the Interstate Identification Index(III) and national wanted persons files.Additionally, the data from the FOIDapplication are entered to a file which iscompared each day against a file of allpersons who have been a patient in amental hospital within the past 5 years.All matches are verified and ifconfirmed, result in a denial of theapplication.

The Illinois State Police has 30 daysto approve or deny an application, andmust provide written notice of the reasonfor denial.

— FOID revocation processThe revocation process is an ongoing

series of checks against files containinginformation which would disqualify aperson from possessing a FOID card andfrom possessing firearms andammunition. The entire FOID file is runeach day against the statewide mentalpatient file maintained by the IllinoisDepartment of Mental Health andDevelopmental Disabilities. All verifiedmatches against current FOID card-holders result in revocation. The ISPmust provide written notice of the reasonfor revocation of a FOID card, and alsohas authority under the Act to seize arevoked FOID card.

In the late 1980s, Illinois encountereda situation which had not beenanticipated by the authors of the FOIDCard Act. The Laurie Dann incident, inwhich a mentally ill young womanobtained firearms and used them to killand maim a number of children in anelementary school, led to a reevaluationof the FOID Card Act. Ms. Dann had notbeen hospitalized in Illinois, was eligibleto obtain a FOID card, and could legallypurchase firearms and firearmammunition. This incident led to the“clear and present danger” amendment ofthe Act. The amendment allows ISP todeny the application or revoke the FOIDcard of “A person whose mentalcondition is of such a nature that it posesa clear and present danger to theapplicant, any other person or persons inthe community.” Mental condition isdefined as “a state of mind manifested byviolent, suicidal, threatening orassaultive behavior.” Reports onindividuals thought to be a clear andpresent danger are reported to ISP bypolice officers, family members, theclergy, psychiatrists, psychologists andmembers of the community.

A person whose application is deniedor whose card is revoked may requestrelief from ISP. However, personsconvicted of forcible felonies as definedin the Illinois Criminal Code may notapply for relief until 20 years afterconviction or at least 20 years have

passed since the end of any period ofimprisonment imposed in relation to thatconviction. The first step in the reliefprocedure is a fact-finding conferenceconducted by ISP. Following that, theperson may request an administrativeappeal hearing before an administrativelaw judge. Finally, if the administrativeappeal hearing results in a denial, theperson may appeal that decision directlyto the Circuit Court pursuant to theAdministrative Review Law.

— Other facts• The FOID Card Act requires ISP to

provide written notice of expiration atleast 30 days prior to the card’sexpiration date.

• There is no preemption provision inthe FOID Card Act and local units ofgovernment may and have imposedgreater restrictions on the possessionand acquisition of firearms andfirearm ammunition.

• The FOID file is available for accessby peace officers through the LEADSsystem. This allows a peace officer toimmediately verify the status of aFOID card encountered in the line ofduty.

• Violations of the FOID Card Act areClass A misdemeanors.

The Firearm Transfer InquiryProgram

Although the FOID Card Act waspioneering and effective in the control offirearms and firearm ammunition, it wasnot without its weaknesses. One of themajor weaknesses was the inability toconduct a daily criminal history check ofall legal card-holders to determine theircontinued eligibility. The FOID file isrun monthly against the CCH filesmaintained by ISP. This still creates a30-day window during which a convictedfelon can still acquire firearms andfirearm ammunition without beingdetected. Likewise, there is no provisionto allow Illinois to run a tape of theautomated FOID files against the IIIfiles. Individuals convicted in otherStates or by the Federal courts goundetected until they reapply for a FOIDcard at the end of 5 years.


— FTIP amendmentDuring the 1991 legislative session,

the Illinois General Assembly amendedthe FOID Card Act to create the FirearmTransfer Inquiry Program (FTIP). ThisAct was signed into law on September19, 1991, and became effective onJanuary 1, 1992.2 The legislationprovided that “the Department of StatePolice shall provide a dial-up telephonesystem which shall be used by anyfederally licensed firearms dealer who isto transfer a firearm under the provisionsof the Act (the FOID Card Act).” Itfurther provided that “the Departmentshall utilize existing technology whichallows the caller to be charged a feeequivalent to the cost of providing thisservice but shall not exceed $2.” The billalso provided that the fees shall bedeposited in the State Police ServicesFund and used to operate the program.Further, ISP is to provide an immediateresponse or notify the dealer of adisqualifying objection within thewaiting periods found in the DeadlyWeapons Act — 24 hours for long gunsand 72 hours for handguns.

The legislation defined the FTIPinquiry as an “automated search of theISP computerized criminal history files,those of the Federal Bureau ofInvestigation Interstate IdentificationIndex and the files of the Department ofMental Health and DevelopmentalDisabilities.” The purpose of theinquiries is to identify any felonyconvictions or patient hospitalizationswhich would disqualify a person andrequire the revocation of a currentlyvalid FOID card.

— FTIP processThe ISP allows any federally licensed

firearms dealer to register and beenrolled in the FTIP program. Eachenrolled dealer is provided a uniqueenrollment number.

FTIP is unique in that it uses a “900number” telephone system connected to

2 ILL . REV. STAT. ch. 430, para. 65/3.1(1991).

an automated call director whichmanages the calls as they are receivedand routes them to the next availableoperator. Dealers may also inquire usingtheir touch-tone telephone to access avoice response unit (VRU) and completea fully automated FTIP inquiry.

An FTIP inquiry requires the dealer toinitiate the call, provide the uniqueFederal Firearm License number, the ISPenrollment number and the FOID cardnumber of the transferee. Upon initiationof the inquiry, the FOID card number isused to verify the validity of the FOIDcard and to obtain the necessary dataelements from the FOID file to allowinquiries to be launched to criminalhistory and wanted persons files. Theseinquiries include the NCIC III andwanted persons files, and the IllinoisCCH and wanted persons files.

The FTIP system receives allresponses, evaluates the responseinformation and formulates a responsemessage which is sent to the operator’sterminal or the dealer connected to theVRU. Three responses are possible: (1)an approval, (2) a denial, or (3) a “not atthis time” message. Each responsemessage also includes a response numberwhich is provided to the dealer for futureaudit and inquiry purposes. Felonyarrests without dispositions or hits onwanted persons both result in “not at thistime” responses and start the clock of thestatutory waiting period within whichISP has to respond to the inquiry. Thesystem has a 30-second timer andalthough most inquiries are completedwithin this time period, those which arenot result in a “not at this time” message.Dealers are contacted and provided anapproval or denial of “not at this time”inquiries as soon as the necessary dataare obtained. In the event the response isnot provided to the dealer within thestatutory waiting period, the dealer maylegally complete the transaction at theend of the applicable time period.

— FTIP benefitsOne of the major benefits of the FTIP

program is the identification of personswanted on warrants. The local lawenforcement agency having jurisdiction

over the location of the firearms dealer isimmediately notified of the warrantinformation. It is then left to the locallaw enforcement agency to carry out theapprehension of the subject if the warrantis verified as valid.

Firearms dealers are allowed to useeither method of accessing the FTIPsystem. The use of the “900” telephonesystem requires a new call for each FTIPinquiry. The use of the “900” telephonenumber significantly increases theeffectiveness of the program as iteliminates the need for ISP to account forcalls and then bill and receive funds fromenrolled dealers. Instead, a check and adetailed printout are received from the“900” service provider each month.

The legislation which created theFTIP amendment to the FOID Card Acthas a sunset provision which repeals theFTIP language on September 1, 1994.

— Firearms control committeeThe ultimate future of firearms

control in Illinois rests with a committeecreated by the amendment. Theamendment contains a requirement forthe Governor to appoint a nine-membercommittee to “study and makerecommendations to the Governor andthe General Assembly regarding thecontinuation or abolition of the ‘dial upsystem’ or the ‘Firearm OwnersIdentification Card Act’ or anycombination thereof … .”

Membership on the committee iscomprised of “the Mayor of Chicago, orhis representative; a State’s Attorney; anindividual representing a privateorganization that opposes strictregulation of firearms; an individualrepresenting a private organization thatsupports strict regulation of firearms; andfour members of the General Assembly,one each nominated by the President andMinority Leader of the Senate and theSpeaker and Minority Leader of theHouse of Representatives.”

Felon Identification in FirearmSales

Illinois is a participant in the NCIC IIIFelon Identification in Firearm Sales(FIFS) Program. All persons entered into


the III by the Illinois State Police whoare felons have a “felon” flag entered intheir record. Additionally, the IllinoisCCH files also flag the records of allfelons. The felon-flagging processexpedites inquiries made into both IIIand CCH as part of the FOID applicationscreening process and the FTIP screeningprocess. The III felon-flagging is alsoavailable to all criminal justice users toassist in expediting firearms-relatedinquiries.

Facts and Figures— FOID

The total number of active FOIDrecords as of December 31, 1993, was1,234,621. Each year the FOID sectionprocesses approximately 250,000applications, including those of both newand renewal applicants. For the first 24years of the program, the size of theFOID active file stayed at approximately1 million. However, since the inceptionof FTIP on January 2, 1992, the numberof active FOID records has increasedeach year.

During 1992, 2,896 applications for aFOID card were denied for failure tomeet the requirements of the Act.Included in these denials were 2,019 forfelony convictions, 235 for minors withmisdemeanor convictions, 598 for mentalhospitalization, 18 for a “yes” answer todisqualifying questions on theapplication, and 2 as a result of perjuryon the application.

During 1992, a total of 3,001 FOIDcards were revoked. Included in thesecard revocations were 772 for felonyconvictions, 92 for misdemeanorconvictions by minors, 2,074 for mentalhospitalization, and 17 as a result ofperjury on the application.

The total number of applicationsdenied for 1993 was 4,409. Included inthese denials were 3,382 for felonyconvictions, 715 for mentalhospitalization, 274 for minors withmisdemeanor convictions, 18 for a “yes”answer to disqualifying questions on theapplication, and 9 as a result of perjuryon the application.

During 1993, a total of 3,311 FOIDcards were revoked. Included in these

card revocations were 1,442 for felonyconvictions, 120 for misdemeanorconvictions by minors, 1,689 for mentalhospitalization, and 17 as a result ofperjury on the application.

— FTIPAt the end of 1993, there were

approximately 10,500 federally licensedfirearms dealers in the State of Illinois.Of this number, 6,653 dealers wereenrolled in the FTIP program. Thedifference between the total number ofdealers and those enrolled in FTIP is thedifference between those dealersoperating as a business and those dealerswho deal for their own collection andthose of friends. If dealers deal foranyone other than themselves, they arerequired to be enrolled in the FTIPprogram. The Bureau of Alcohol,Tobacco and Firearms (ATF) indicatesthat since January 1, 1994, there has beena dramatic increase in the number offirearms licenses being surrendered. TheFTIP program was notified by ATF of 10license cancellations during the firstweek of January 1994.

During 1992, FTIP processed 171,940inquiries from firearms dealers, whichresulted in 1,234 denials. Of the totaldenials, 46 were for persons whose FOIDcard had been revoked for a felonyconviction and the card had not beenreturned; 45 were persons whose FOIDcard had been revoked as a result ofmental hospitalization and the card hadnot been returned; and 23 were convictedfelons identified by FTIP.

The 1992 FTIP inquiries alsoidentified 367 persons as being wantedon warrants. The majority of thesewarrant hits were for traffic- and motorvehicle-related offenses. However, 66were individuals wanted for criminaloffenses. ISP was advised that 34individuals were apprehended as a resultof local law enforcement officials beingnotified of the FTIP contact.

During 1993, the total FTIP inquiriesincreased to 203,936, which resulted in1,160 denials. Of the total 1993 denials,63 were for persons whose FOID cardhad been revoked for a felony convictionand the card had not been returned; 94

were persons whose FOID card had beenrevoked as a result of mentalhospitalization and the card had not beenreturned; and 63 were convicted felonsidentified by FTIP.

The 1993 FTIP inquiries identified437 persons as being wanted onwarrants. Of these, 96 were wanted forcriminal offenses. Local authoritiesapprehended 94 individuals as a result ofthe FTIP warrant notices.

A comparison between 1992 and 1993FTIP activity shows a 19 percentincrease in the total number of inquiries,and a six percent decrease in the totalnumber of denials. The denial rate during1992 was .72 percent, which decreasedin 1993 to .57 percent. Forty moreconvicted felons were identified anddenied during 1993, an increase over1992 of 174 percent. The number ofpersons identified as wanted on warrantsincreased 19 percent, and the totalwarrant apprehensions increased by 176percent.


The Virginia point-of-sale Firearms Transaction Program

CAPT. R. LEWIS VASSRecords Management OfficerRecords Management Division

Virginia State Police

The Virginia Firearms TransactionProgram, which became operational onNovember 1, 1989, provides for a timely,point-of-sale, approval/disapprovaldecision regarding the sale of certainfirearms, based upon the results of acriminal history record informationcheck concerning the prospectivepurchaser.

This program authorizes properlylicensed and registered gun dealers torequest criminal history recordinformation checks on prospectivepurchasers by calling the Department ofState Police via a toll-free number,between the hours of 8 a.m. and 10 p.m.,7 days a week, including all holidays.The purchaser’s name and certainpersonal descriptive data areimmediately entered into a computersystem while the dealer remains on thetelephone.

Our clientele consists of the firearmsdealers and prospective firearmspurchasers in Virginia and other States.The program currently serves 6,487firearms dealers and an unknown numberof individuals who purchase firearms inVirginia.

Initially, the weapons requiring pre-sale approval in Virginia were:(1) Any handgun or pistol having a

barrel length of less than fiveinches; or

(2) Any semiautomatic center-fire rifleor pistol that is(a) provided by the manufacturer

with a magazine which willhold more than 20 rounds ofammunition, or

(b) designed by the manufacturerto accommodate a silencer orbayonet, or

(c) equipped with a bipod, flashsuppressor or folding stock.

Effective July 1, 1991, the pre-saleapproval was extended to include allguns sold in Virginia, except antiquefirearms as defined in the Code ofVirginia Section 18.2-308.2:2.Approximately 1,000 new dealerregistrations were processed for theFirearms Transaction Program due to thislegislation and the annual volume offirearms transactions increased about 250percent.

The 1993 General Assembly amendedand reenacted Section 18.2-308.2:2 torequire firearms dealers to report to theVirginia State Police the number offirearms by category intended to be sold,rented, traded or transferred and toprohibit any person who is not a licensedfirearms dealer from purchasing morethan one handgun within any 30-dayperiod without approval from the StatePolice.

Statistics captured by category duringthe firearms transactions from July 1,1993, through December 31, 1993,support the following totals of firearmssold or transferred during that period:• Rifles — 52,262;• Shotguns — 29,906;• Pistols — 35,293;• Revolvers — 14,139.

The Virginia State Police isresponsible for accepting and processingMultiple Handgun Purchase Applicationsand approving Multiple HandgunPurchase Certificates, when purchases inexcess of one handgun within a 30-dayperiod can be justified. As of December31, 1993, 155 applications had beenprocessed supporting the issuance of 123Multiple Handgun Purchase Certificates.


Instantaneous checksThe design of the Virginia program

eliminates the traditional waiting periodsassociated with other programs of thistype by electronically accessing criminalhistory records and “wanted” databasesat the National Crime Information Center(NCIC) and the Virginia CentralCriminal Records Exchange (CCRE) andproviding an almost instantaneousapproval/disapproval decision to firearmsdealers concerning the firearms sale.

The computer simultaneouslyaccesses five national and/or Statedatabases. Three of the databases aremaintained by the Virginia State Police,two of which are accessed through theVirginia Criminal Information Network:Virginia’s wanted persons files andcriminal history record files. The thirdVirginia State Police database accessedis a calendar file of handgun purchasesrequired to monitor and enforce lawfulhandgun limitations. The fourth databaseaccessed during this background check isthe NCIC, which contains the nationalwanted persons files. The fifth databaseaccessed is the Interstate IdentificationIndex (III), which contains the nationalcriminal history record files maintainedby the Federal Bureau of Investigation.

If an identification is not made in oneor more of these files, the computerresponds “YES,” the sale is approvedand a unique computer-generatedapproval number is provided to thefirearms dealer for that transaction. If anidentification is made, however, thecomputer responds “NO, THE SALE ISNOT APPROVED AT THIS TIME,”and review of criminal historyinformation is required to determinelawful eligibility of the prospectivefirearms purchaser to possess or purchasea firearm. Since the program began in1989, there has been a daily average of4.03 denials.

This program was the first of its typein the Nation. On the average, it takes 2minutes to provide a firearms dealer withan approval/disapproval decision. Withthe exception of replicated programs inother States, all other programs requirewaiting periods varying from 3 to 15

days or longer before anapproval/disapproval decision is made.

Virginia was able to implement thisprogram because the CCRE maintainedby the Virginia State Police is one of themost complete records repositories in theNation and provides the database for theFirearms Transaction Program.

As of January 1, 1994, the CCRE had919,000 individual records in thecriminal history record files. All recordsare flagged as felony or misdemeanorrecords and are contained in thecomputerized name file. Over 90 percentof these records contain courtdispositions. Virginia is a participatingState in III and has contributed over286,000 records in this file.

Firearms transaction checksVirginia’s approach to firearms

records checks does not infringe on anindividual’s ability to purchase orpossess a firearm, while thoseindividuals who are prohibited by Stateor Federal law are denied legal access tofirearms. One of the most significantproblems experienced in operating theinstant point-of-sale program isinterpreting the varied methods ofrecording and reporting arrest and courtdisposition information by other States orforeign countries.

The State Police Bureau of CriminalInvestigation Virginia-Interpol LiaisonNetwork has been instrumental inhelping to query and interpret foreigncriminal history records accessed duringthe Firearms Transaction Program’scriminal history record check process.Recently, Virginia-Interpol assisted indetermining dispositions of felonycharges reported in Canada, England,France, Spain and Guam.

Since its inception on November 1,1989, through December 31, 1993,603,324 firearms transactions have beenprocessed through the FirearmsTransaction Program. Of this amount,6,135 were disapproved because theprospective purchaser was prohibited byState or Federal law from purchasing orpossessing a firearm. A total of 343fugitives have been identified, with 143

(approximately 42 percent) apprehendedas a result of this program.

Firearms Investigative UnitAs an aggressive initiative to curtail

illegal firearms activity and to prosecuteindividuals who violate firearms laws,effective August 1, 1992, the VirginiaState Police implemented a FirearmsInvestigative Unit (FIU) to supplementthe Firearms Transaction Program. TheFIU is a centralized, statewide programto enforce firearms legislation andinvestigate alleged illegal firearmstransactions. It works in cooperation withlocal, State and Federal authorities to: (1) Reduce the number of guns

illegally purchased in Virginia andtransferred to other States wherestricter gun control laws are ineffect;

(2) Track cases where felons haveattempted to purchase weapons;

(3) Contact registered gun dealers tomonitor compliance with Section18.2-308.2:2 of the Code ofVirginia to ensure that this statute isbeing enforced; and

(4) Enforce firearms laws at gun showsthroughout Virginia.

Since its inception, the FIU has beeninvolved in task forces, in conjunctionwith the Bureau of Alcohol, Tobacco andFirearms, that oversee investigations andprosecutions involving intrastate andinterstate gun-running activities. Inaddition, beginning July 1, 1993, theVirginia State Police found it necessaryto become the leading agency for allinvestigations of illegal attempts topurchase firearms. As of that date, allillegal attempts to purchase a firearmbased on State and/or Federalprohibitions are assigned to a swornofficer of the Virginia State Police forinvestigative purposes. Since theprogram’s inception in November 1989,the State Police has confirmed 718arrests for falsifying documents relatedto the sale of firearms; 154 of thesearrests have been made since July 1,1993.


Costs and fundingLegislation requires that the $2 and $5

fees collected by firearms dealers beused to offset the cost of the FirearmsTransaction Program. Start-up costs ofthe program in fiscal 1990-91 wereprojected as follows: $314,600 in salariesand benefits, $18,800 for postage, and$123,500 for telecommunications,totaling $456,900.

The Firearms Transaction Programhas been expanded to include databasesfor processes required by 1993legislation:• A central repository, known as the

Criminal Firearms Clearinghouse, ofinformation regarding all firearmsseized, forfeited, found or otherwisecoming into the possession of any lawenforcement officer which arebelieved to have been used in thecommission of a crime;

• A repository of concealed weaponspermits issued by all Virginia CircuitCourts; and

• A calendar file of handgun purchasesto monitor and enforce lawfulpurchase limitations and MultipleHandgun Purchase Applications andCertificates.

This expansion increased staffing of theFirearms Transaction Program from 15to 28 employees, and also increased thecurrent expenditure to $696,341 annually(see Figure 1). The fee mandated bystatute falls short of coveringexpenditures of this program.

Total personnel services .............. $425,147Total contractual services ............... 133,665Total supplies and materials ............... 2,700Total continuous charges ................. 11,225Total equipment ................................... 876

[Total subprogram...................... $573,613]

Additional full-time positionsand fringe/related costs ............... $122,728

Adjusted projected costs .......... $696,341

Figure 1: 1993-94 expenditureprojections

ConclusionThe Virginia Firearms Transaction

Program has begun its fifth year ofoperation in Virginia and significantsuccess has been noted:• Virginia no longer has the street or

media reputation of being the chiefEast Coast gun supplier for crimescommitted elsewhere.

• The General Assembly has repairedweaknesses to strengthen and supportits intent to fight crime.

• 143 fugitives have been apprehendedwho might not have been otherwise.

• Citizens who have the right to own agun are not inconvenienced withdelays because of the criminalelement.

• Over 6,000 individuals, prohibited bylaw from owning, possessing ortransporting firearms, have beendenied access to firearms.

• Aid has been provided in solvingpreviously unsolved crimes.Virginia is the acknowledged Nation’s

leader in point-of-purchase firearms salesrecord checks. Virginia’s system is whatlies beyond the Brady Bill.


The Oregon system: Fingerprint checks and the waiting period

LT. CLIFFORD W. DAIMLERDirector, Identification Services Division

Oregon Department of State Police

My intent is to briefly describe theOregon presale firearms check system toprovide an overview of what we aredoing.

The Oregon law went into effectJanuary 1, 1990, and is enforced inaddition to the current Federal statutes.1

The Federal firearms licensee (FFL, alsoknown as the firearms dealer) has tocomply with the Oregon statute, as wellas the paperwork requirements imposedby the Federal firearms statutes.

Firearms sales checksOregon designed a new triplicate form

that the firearms dealers must use.2

Similar to other pre-sale check systems,the prospective firearms purchaser mustpresent two pieces of identification, andone piece must have a photograph on it.This is normally accomplished by thepurchaser presenting a driver’s license oridentification card obtained through theOregon Department of Motor Vehicles.

The dealer must fill out the form sothat everything is completed correctly,and then the dealer and the purchasermust sign on three parts of the form.Then, what is somewhat unique forOregon, the law requires that thepurchaser’s thumbprints be imprinted onthe third part of the form. The firearmsdealer retains the original part of theform and keeps this on file, as is alsorequired by Federal law. The duplicate iseither hand-delivered or mailed on theday of the sale to the local lawenforcement agency in the jurisdictionwhere the sale occurred. So if a dealerfrom the southern part of the State travels

1 ORS 166.420.2 Oregon’s “Dealer’s Record of Sale ofHandgun” is included in this report asAppendix 9.

to a gun show in Portland (the northernpart of the State) and sells a handgun, theduplicate has to be delivered to either theMultnomah County Sheriff’s Office orthe Portland Police Bureau, dependingon which jurisdiction the dealer is in.The triplicate part of the form — whichcontains the applicant’s thumbprints —has to be mailed or hand-delivered to theOregon State Police IdentificationServices Section on the day of the sale.

Local law enforcement has 15calendar days to check to see if thepurchaser is disqualified from purchasinga handgun. The Oregon State Police has10 working days to run a fingerprintcheck, using only the thumbprints,through the Automated FingerprintIdentification System (AFIS). Sometimesthe 10-day deadline is pretty tight. Weare a 5-day-a-week operation, 8 hours aday, and we are closed Saturdays,Sundays and most holidays. Thus, if ahandgun sale occurred on a Thursdayand there is a holiday on Friday, we loseseveral working days for accomplishingthat check. So far, we have been able tostay in compliance with the law.

After the 10 days, or whenever wefinish processing the fingerprints at theState level, we send the triplicate part ofthe form to the local law enforcementagency (which had received the duplicatepart of the form from the dealer). Duringthe time the local authorities have hadthe duplicate form, they will have madeall the appropriate checks into the “hot”files to see if the applicant is wanted, andinto their local files or the files of theapplicant’s residence to see if there areany court indictments. They also checkthe mental health records in Oregon. Theonly check done at the State level is thefingerprint check inquiry; local law


enforcement does the actual criminalhistory and hot file inquiries, based on allthe data given to them, as well as onwhat we may find at the State level. Formost applicants, we do not find acriminal history record.

Waiting period exceptionsThere are very few exceptions to the

15-day waiting period. In Oregon, peoplecan obtain a concealed handgun license,which allows them to carry any type oflawful handguns in the State of Oregon— the same as any police officer, withvery few exceptions. A concealedhandgun license-holder cannot, ofcourse, carry that firearm onto Federalproperty or into an Oregon courthousethat has been restricted by a judge. Thus,the person who holds that valid OregonConcealed Handgun License can go intoan FFL dealer and purchase a handgunwithout undergoing the waiting period.The paperwork must still be filled outand processed as previously described,including thumbprints from thepurchaser. However, the handgun dealercan give that concealed handgun license-holder the firearm at the time of the sale,and the 15-day waiting period does notapply.

Obviously, Oregon is going to have toshift gears here and comply with theBrady Law. At the very least, concealedhandgun license-holders in Oregon mayhave to wait the 5 days, as mandated bythe Federal law. On the other hand,Oregon may possibly fall within that partof the Brady Bill that exempts permit-holders from the waiting period. In thatcase, we may still be able to continue aswe have.

Penalties, disqualificationsOregon’s penalty for violating the

firearms waiting period law is verysimilar to penalties under the Brady Law:We classify it as a “C” felony, which hasa penalty of 5 years and/or a $100,000fine.

Regarding purchase disqualifications,persons under age 18 are not allowed topurchase firearms in Oregon. Obviously,Federal law sets it at age 21. We docomply with Federal law requiring the

firearm seller to be age 21. Handgundealers in Oregon are put in a badposition, in that Oregon law allows themto sell handguns to persons 18 and older,while the Federal law restricts the sale topersons aged 21 and over.

Other obvious disqualifications are ifthe person has been convicted of afelony; found guilty (except for insanity)of a felony; has any outstanding felonyarrest warrants; and is free on any formof pre-trial release from a felony, and soforth. (These disqualifications include afelony citation. That is important becausefelony citations are issued quite often inOregon, to the point where a lot ofpeople are not taken into full-custodyarrest for the lower-grade felonies.)

If a person was committed to theMental Health and DevelopmentalDisabilities Services Division and wasfound to be mentally ill and subject to anorder by a court, the person is prohibitedfrom purchasing or possessing a firearmas a result of that mental illness. And,when these court orders are issued, theyare sent to the Department of State PoliceLaw Enforcement Data System, and weput those orders into the computersystem so we can track them.

Other disqualifiers under the Oregonfirearm statute are if a person has beenconvicted of a misdemeanor involvingviolence, or found guilty (except forinsanity) of a misdemeanor involvingviolence within the previous 4 years.Oregon law describes those violentmisdemeanors as follows: assault in thefourth degree (normally domesticsituations where people are beating upeach other); menacing (where theperpetrator threatens physical force);recklessly endangering another person;assaulting a public safety officer; orintimidation in the second degree (basedupon a person’s race, color, religion,national origin or sexual orientation).

As mentioned, Oregon uses atriplicate form to record handgun sales.Oregon uses many of the same questionsused by the Federal government,although we put an “Oregon” twist onthem. For example, we allow multiplehandgun sales (that is, we do not restrict

how many handguns can be purchased inany given period of time).

On the back side of the triplicate formthat is sent to the State Police, there is anarea for the thumbprints and for the plainimpressions. Oregon State law requiresonly the thumbprints on the handgunsales form; it does not require all 10impressions. However, we do encouragethe gun dealers to put the simultaneousor plain impressions on the handgunsales form anyway. It does help us bemore efficient. This reduces the numberof rejects that we will get in. If we get inthe triplicate, and a thumbprint is of sucha poor quality that we cannot make anAFIS search, then we reject the handgunsales form, notify the law enforcementagency getting the duplicate, and nullifythe handgun sale. Then, the applicant hasto start the process all over again. If thishappens on the 14th day of the waitingperiod, it really upsets the gun dealers.Thus, it is very important that thethumbprint quality is high. To theircredit, the gun dealers in Oregon aredoing a pretty good job of getting goodquality thumbprints and fingerprints onthe form.

Workload levelsFigure 1 is a bar chart that depicts our

monthly workload since the Oregonfirearms sales check law was enactedover 4 years ago. We averaged about3,500 inquiries up until January 1993,when the Brady Bill was discussed veryactively. By looking at this chart, Iwonder if anyone can tell when theBrady Bill was enacted into law. Thegrowth in January 1994 is the same asthat of December 1993. We are hopingthis is just a “feeding-frenzy” situationand that people will relax soon. Wecannot sustain this level of service andhope to survive using our currenttechnology.

Figure 2 is another chart thatdemonstrates our workload. The handgunsales just keep climbing year by year, aswell as the issuance of concealedhandgun licenses. In 1990, the Oregonlaw affecting concealed handgun licenseswas changed. The licenses were good for2 years, after which they were


renewable. That is why there is a dip in1991. One would expect the licenseissuance level to be high again in 1992,and to dip down again in 1993. However,the level of issuing concealed handgunlicenses has not decreased, and so thelaw was once again amended to make thelicenses good for 4 years. Despite this,the level of license issuances continuesto go up. This is very similar to whatIllinois has experienced. Even thoughthere is a concealed handgun license, theperson is checked out quite thoroughly atboth the State and national level beforebeing issued this license.

The chart in Figure 3 shows theimpact of the workload. This only speaksto the total gross number of fingerprintcards the Oregon State Police receives.Handgun sales are 28 percent of ourworkload, the concealed handgun licenseissuances are nearly 12 percent, and thecriminal work is 56.4 percent. Ourworkload previously was much greater inthe criminal area; however, it is shiftingmore toward regulatory work quiterapidly.

The chart in Figure 4 depicts onlythose fingerprint cards that have gonethrough the name and date of birth searchand that actually make it to the AFIS fora search. This is where our workloaddramatically changes. Because of therecidivism rate of criminals, most of theirrecords are found with a simplename/DOB check, with a quickconfirmation on the prints. But with thehandgun sales, the majority of theapplicants need to be searched all theway through to the AFIS because theyhave no prior record. The same applieswith the concealed handgun licenses.Now the workload shifts to where 34percent of the AFIS workload isallocated to handgun sales and almost 21percent to concealed handgun licensing.

During the 1993 legislative session,Oregon passed a law that gives the Stateand private child care facilities theauthority to make criminal history recordinquiries at both the State and nationallevels. We project that the regulatoryimpact of what we call the “Teachers’and Children’s Bill” (House Bill 1078) isgoing to take 33 percent of our resources

(Figure 5). Combined with the handgunsales at 22.8 percent, the criminal workpercentage is lowered to 23 percent. Thisgives an idea of who our customers willbe in the future, and what the impact ison the Oregon State Police.

In Oregon, we are trying to firmlyremind our policymakers that without thecriminal segment of our workload,without the appropriate dispositionsbeing recorded, the concealed handgunlicensing and other regulatory work is ofno value. Right now, in fact, I am beingimpacted by being required to do theregulatory work in a mandated timeframe, while we do not have similarrequirements for the criminal work. It isvery easy to build criminal history recordinformation backlogs while your agencyis trying to address other problems.


The California system: Access to other databases,name searches and the waiting period

EDWARD J. (JACK) SCHEIDEGGERChief, Bureau of Criminal Identification and Information

California Department of Justice

To provide some perspective of whatthe California Department of Justice(DOJ) is dealing with in terms of itsfirearms transactions, last year weprocessed about 642,000 Dealers’Record of Sale transactions in our State.1

One of the interesting statistics we havefrom the Federal Bureau of Alcohol,Tobacco and Firearms is that Californiais in the reverse position of the rest of theNation: we process about two-thirdshandgun purchases and one-third longgun and shotgun purchases. This isexactly the reverse of the rest of theStates.

We experienced about a 19 percentincrease in our transactions from 1992 to1993, and 1992 had about a 31 percentincrease over 1991. So like my friend inOregon, our business is booming.

Firearms transactionsBasically, our firearms transaction

process starts with a form. We have twodifferent forms: one for revolver andpistol transactions, the other for long gunand shotgun transactions. Each formconsists of four parts, and we sellsupplies of these forms to firearmsdealers in the State.

Following a revolver or pistoltransaction, the firearms dealer sends onecopy of the form to the local lawenforcement agency, sends two copies tothe California DOJ, and keeps one. Inaddition, the dealer sends in a $14processing fee for each form. Thisprocess is also required for privatetransactions. If I want to sell a weapon toa friend, I have to go to a dealer,

1 California’s firearms transaction statute isP.C. 12071.

surrender the weapon, and go through therecords check process.

When the California DOJ receivesthese firearms forms, it conducts therecords check process; microfiches theinformation; and enters the informationinto an Automated Firearms System. Ourturn-around time to complete theserecords checks is statutorily required tobe 15 days.

In 1991, the California Legislatureadded long guns and shotguns to ourprocessing requirements. Following thetransaction, one copy of the sales form issent to the local law enforcement agency,two to the California DOJ, and the dealerkeeps one. These transactions alsorequire a $14 processing fee. Unlike thepistol/revolver form, however, Statestatute requires that we destroy theseforms within 5 days after the request topurchase is processed. The form isdestroyed, and the registrationinformation is not recorded into anysystem.

Name checks, other databasesCalifornia’s records check process is

all name-based. We start with a check ofour State and national criminal historyfiles and our wanted-persons system, andwe also check restraining order andmental health files.

Performing checks in these otherareas, specifically the restraining orderfile, started in 1993. It is predicated upona victim securing a restraining orderfrom a court. (For example, it could be arestraining order someone gets basedupon domestic violence.) After thesubject secures a restraining order, thesubject must place a request with a locallaw enforcement agency that the


restraining order information be enteredinto California’s wanted-persons system.Then, when we do an inquiry into ourwanted-persons system as part of thename-check process, we can find out notonly if the prospective firearmspurchaser is a fugitive but also if arestraining order has been issued againstthe individual.

In 1993, in the first year of operatingthe restraining order file, we enteredabout 34,000 orders. These are retainedfor 3 years. There is an interesting sidebenefit that occurs here. Because therestraining order is in our wanted-persons system, if an officer in the fieldshould conduct an inquiry, thatinformation is available immediately.That is a good tool for a police officerwho may be responding to a domesticviolence call.

On the mental health side, we havehad about 410 denials based on mentalhealth reasons. This is about two-thirdsof the mental health denials noted for theState of Illinois. In any event, mentalhealth information is reported to us bycertified California Department ofMental Health facilities. The criteria areas follows: (1) the individual must beevaluated by either a certified psychiatrictechnician or a physician; (2) theindividual must be judged a “5150,” adanger to themselves or others, or havetold a psychiatrist that he or she iscontemplating killing someone; and (3)the individual must be admitted into amental health facility. If these criteria aremet, the Department of Mental Healthfacilities are required by law to reportthat information to the California DOJ.This information is placed in a separatefile which is not accessible to anyoneelse but us. Interestingly enough, we thenpay the facilities $5 for each report theygive us. Right now, there are about300,000 notations in this file, which arepurged after 5 years.

Waiting periodIf there is no hit on any of our name-

based checks, the California DOJ doesnot provide any notice to the dealer. Thatis it. If you purchase a firearm inCalifornia, you fill out the form, the form

is submitted, the 15 days elapse, and thenyou return to pick up the firearm.However, you are not allowed to pick upthe weapon before the 15-day waitingperiod has elapsed. It is a joint “coolingoff” period, as well as time for us toprocess the background checks. Even ifthe California DOJ manages to clear thepurchase in 2 days, the buyer cannot pickup the weapon from the dealer until afterthe 15 days have passed.

Handgun purchase information isentered into the Automated FirearmsSystem. This has a tremendous value tolaw enforcement agencies. The serializedinformation on the weapons is logged inthere, so if a crime is committed using aparticular weapon, we are able to trackthe registration of that weapon. If a cacheof stolen property including weapons isdiscovered, we are able to link theweapons to the original owner, and ithelps in solving crimes. Interestinglyenough, this does a lot of good for ourinvestigators in terms of the “personorientation.” In other words, if you areassigned to investigate an individual inCalifornia, one of the first things youmight do is run a fingerprint check, anddetermine if the individual has anyregistered weapons. (If it is a long gun,none of that occurs. As I mentionedearlier, the information is destroyedimmediately, or within 5 days, whichevercomes first.)

Purchase denialsA record hit occurs in about 1 percent

to 1.5 percent of the cases. Last year wehad a little over 6,500 denials in theState. We do our best to determine thatthe hit is actually on the applicantwithout having to resort to fingerprintidentification. Many times, of course,doing this plus securing additionaldisposition information is labor-intensive. We then notify the dealer, viatelephone, that we have a hit, and he hasa prohibited status on that purchase andmay not release that weapon. Thattelephone conversation is tape-recorded.We then follow that up by notifying thedealer, the local law enforcement agencyand the Bureau of Alcohol, Tobacco and

Firearms in writing of the purchasedenial.

In some cases, we discover thatsomeone who was sold a firearm afterthe 15-day waiting period had elapsed isactually in a precluded class. In that case,we notify the local law enforcementagency and ask them to have the joyfulexperience of finding the firearm ownerand securing the weapon.

There is an interesting point thatcoincides with this. Prior to the passageof the Brady Law, California’sLegislature determined that we shouldspeed up our firearms-check process. By1996, our turn-around time on rifle andshotgun inquiries will be 10 days. Ofcourse, we are looking at possiblyimplementing various models — such asan instant-check system — as well asdesigning a positive identificationimaging process, which I hope we willbe doing within the next couple of years.


Existing systems

Role of the courts: PanelDisposition reporting:

The perspective from the courtsSally T. Hillsman, Ph.D.

Collecting and accessing court dispositioninformation for the criminal history record

James F. Shea


Disposition reporting: The perspective from the courts

SALLY T. HILLSMAN, Ph.D.Vice President, Research

National Center for State Courts

Complete and accurate criminalhistory records have long been animportant issue for the criminal justicesystem. Increasingly, however, the focushas expanded to include an emphasis onboth the timeliness of their delivery (thatis, real time access) and an expansion ofour understanding of who key users ofthis information are and should be.Clearly, both the Brady Law and theNational Child Protection Act reflect thisexpanded focus, and provide both afurther impetus to and opportunity forrealizing these criminal history recordobjectives. The courts have also longbeen a key user of criminal historyrecords and, like the newer users targetedby Brady and the Child Protection Act,they need the information rapidly,especially for the tens of thousands ofpretrial release decisions that courtsacross the country make daily with theirsignificant implications for public safety.

Achieving data quality goalsSince the 1970s we have made

considerable progress in realizing thegoals of complete, accurate and timelycriminal history records. As the researchby SEARCH and the Bureau of JusticeStatistics (BJS) indicates, however, ourefforts have been uneven, and this is aserious issue for meeting the needs ofState law enforcement and court users, aswell as for realizing a national instantcriminal background check system.There is great disparity across and withinStates with regard to dispositionreporting. In the past, there have beensignificant technical barriers toimprovement. Yet in the last decade, theremarkable progress in the developmentof information and telecommunicationstechnologies has reduced the number and

scope of these technical issues. Thegreater impediments to progress havebeen — and remain — organizationaland structural ones that are deeply rootedin the decentralized nature of ourgovernmental structure, not justState/Federal and State/local, but alsointerbranch and interagency.

I was reminded of this forcefullyyesterday when a leading State courtadministrator reminded me that his Statehad long had a fully integrated criminaljustice information system from whichthey obtained very little usefulinformation. Why? Because althoughthere were four or five pockets of verygood quality, up-to-date information,there were no effective linkages amongthem because the key parties had neversat down at the same table to make ithappen.

Partly because the issue of criminalhistory records has too long been viewedas primarily a law enforcement effort, wehave tended to overlook the fundamentalneed for serious cross-branch, cross-organization collaboration in planning,resource allocation and implementationas a tool (much as technology is a tool)to achieve our goals. This lack of equalpartnership has not only significantlyimpeded progress in the last 25 years, butit will also continue to do so in the futureif it remains unaddressed as we seek toimprove criminal history records in thecontext of implementing the mandates ofBrady and the Child Protection Act.

Criminal history data principlesThere are two principles that I would

like to focus on today. These principleshave not changed much over the last 25years and, if taken seriously, they willsignificantly enhance our efforts over the


next 5 years to improve criminal historyrecords and disposition reporting.

The first is that, with respect tocomplete and accurate criminal historyrecords, the judicial branch is the sole,direct provider of a key sourcedocument: the case disposition. As aresult, any serious effort to improvedisposition reporting, and to makecriminal history records electronicallyavailable real time, must include thejudicial branch as an equal partner indevelopment, problem-solving andmaintenance.

To realize this partnership, however,the second principle must also beacknowledged: the courts want tocollaborate because they are, and need tobe, a major user of an electronic, realtime criminal history recordcommunication system. The courts wantthe repositories to succeed, but toaccomplish this, the repositories mustrecognize the courts as a central clientfor their criminal history record services.

Let me go back to the first principlefor a moment — the patently obvious,yet often overlooked, notion that thejudicial branch is a key partner insuccessful change because the courtshold essential information. While thisobservation is not only obvious but alsosimple, it has not often been acted upon.While some States have taken thiscollaborative approach, it was not until1990 that, at the national level, the courtscame together with the other key actorsfrom State and local law enforcement,the State repositories and others in ahighly productive effort at commondialogue.

Common dialogue ondisposition reporting

Under the auspices of SEARCH, BJSand the National Center for State Courts,and chaired by the Honorable Robert C.Murphy, Chief Judge of the MarylandCourt of Appeals, the National TaskForce on Criminal History RecordDisposition Reporting began meeting in1990. It placed on the table, clearly andin great detail, the positions, needs andoperating realities of all the institutionalparties at the State and local level.

As singular as it was, what wasparticularly remarkable was not themeetings themselves, but how surprisedthe parties were at what they learnedabout the real facts of life for the otherparties in the disposition reporting anddissemination process. Clearly, for most,this cross-branch, cross-agency dialogueto improve criminal history records hadnot been going on (or at least noteffectively) at the State and local levelsin many, although not all, jurisdictions.

One of the surprising realities forsome members of the DispositionReporting Task Force was that, for thecourts, the relationship between policearrests (that is, individual fingerprintdocuments) and dispositions (that is,court case records) is very complex, andthat this can make the matching processvery difficult for courts. For example:• Some arrests (with fingerprint

records) never result in a court case;• Other fingerprint records do not arrive

at a court until after the defendant’scase has been bound over to anothercourt’s jurisdiction;

• Still other court cases have no arrest(or fingerprints), or at least not untilmid-case or until its end; and

• Some court cases have multiplearrests, and some none at all.A second reality that was surprising to

some Task Force participants is that fewcourt cases follow the ratherstraightforward, linear model of caseprocessing upon which much criminalhistory disposition reporting is built.Instead of sequential processes, courtsare organized on multiple subprocessingroutines that can happen many times, inany order, or not at all. Equally asimportant is the fact that courts deal withmany other case types besides criminaland, for both criminal and noncriminalcases, the court must communicate —like the hub on a wheel — with manyofficial partners in the public and privatesectors, at the local, State and Federallevels. Criminal history reporting is onlyone of many important, often mandatory,communications that courts must carryout and, therefore, the court’s keycommunications functions must be built

to accommodate all the official demandsfor information.

Courts as major usersof criminal history records

That said, we should return to theequally important reality mentionedearlier, one that was even moresurprising to many of the members of theDisposition Reporting Task Force: Thecourts are, need to be, and want to betreated as a major user of electronic realtime transmissions of criminal historyrecord data. This reality, while notalways easy to achieve, is a significantbenefit for collaborative efforts toimprove criminal history records. This isbecause a key principle in automation isthat when the provider of data wants andneeds to use it, there is a strong incentiveto produce accurate and timelyinformation. In many States, however,courts have not been viewed as a majorclient or user of the system, and thecontent, format and timeliness ofcriminal history records is rarelydesigned to be adequate for the court’spurposes.

To make all the decisions LarryGreenfeld identified this morning, courts,as criminal history users, need historicaldata on all dispositions, not just feloniesand gross misdemeanors, and they needinformation on failures to appear, violentbehavior and other incidents. For pretrialrelease decisions, the courts need thisinformation within 24 hours of arrest.

As the criminal history reportingsystems of States begin to expand theirroles to serve the courts better and torespond to the interstate needs of theBrady Law and the National ChildProtection Act, a full partnership with thejudicial branch is not only necessary andpossible, it will also be effective.

The Disposition Reporting Task Forcereport is well worth studying because itoutlines what a productive equalpartnership at the State level can andshould be built upon.1 Brady and the

1 U.S. Department of Justice, Office ofJustice Programs, Bureau of Justice Statistics,Report of the National Task Force onCriminal History Record Disposition


Child Protection Act make thiscollaboration imperative. The reportrecommends first that the highest levelcourt and executive branch officials ineach State establish a high-level taskforce representing all components of thecriminal justice system. This interbranchState task force should identify all usersof the criminal history recordinformation, and address the issue ofhow best to link the State repositorydatabase to the data maintained by thecourts, as well as how to provide timelyand effective access to criminal historyrecord information by the courts.

The report also recommends thatfunding improvements in dispositionreporting must be a priority, and itemphasizes that funding must beapportioned in a manner that iscommensurate with the responsibilitiesthat each component of the criminaljustice system assumes in establishingand maintaining complete and accuratedata. The Task Force report recognizesthat in most States the central repositorywill receive a substantial percentage ofavailable funds, but that such acollaborative approach will also meanthat courts will receive significantresource support. As the Task Forcereport notes, “The courts’ problems arethe repositories’ problems, and therepositories’ problems are the courts’problems.”

Reporting , Criminal Justice InformationPolicy series, by SEARCH Group, Inc.(Washington, D.C.: Government PrintingOffice, June 1992).

I would also like to add that weshould consider the wisdom of reservingat least a small slice of Federal dollarsavailable under Brady to experiment withtechnologies that could revolutionize thecriminal history reporting process for the21st century, focusing on technologiesthat can begin to do so within the next 5years. For example:• What if a court equipped with a

scanner could send electronic printsand/or mug shots to the repositoryalong with the disposition? Thiswould mean no more matching!

• What if the justice system adopteduniversal standards forcommunication (that is, fortransmission)? This is not fantasy —the beginnings of an electronic dataand document interchange project forthe courts is on the launch pad as wespeak, and we will be ready shortlyfor liftoff.Our criminal history reporting system

is not good enough yet, but withcollaboration, a focus on all its users andtransformational technology, it can be —and sooner than we think.


Collecting and accessing court dispositioninformation for the criminal history record

JAMES F. SHEAAssistant Director

Integrated Systems DevelopmentNew York State Division of Criminal Justice Services

With the passage of the Brady Bill,attention has turned to the availabilityand quality of criminal justice records tobe used as part of the background checkrequired before a person can purchase ahandgun. Of particular interest is theautomation of these records for use in anational instant criminal backgroundcheck system.

Improving automated courtdisposition reporting

Over the past 8 years, New York Statehas dedicated considerable resources toimprove and expand the level ofautomated disposition reporting by thecourts to the central criminal historyrepository at the New York StateDivision of Criminal Justice Services(DCJS). The largest effort to date is thedevelopment and implementation of theCriminal Records InformationManagement System (CRIMS) by theOffice of Court Administration (OCA).

— CRIMSCRIMS is an automated case

management system used by courts withhigh case volumes and by select courts ofcriminal jurisdiction. CRIMS is morethan a simple mechanism for automateddisposition reporting. It handles allstages of case-related recordkeeping,from case initiation through finaldisposition and appeal, as well as courtcalendaring.

CRIMS is a mainframe-based systemthat has been operational since July1989. It was initially installed in the fivecriminal courts of New York City andlater expanded to include a total of 21sites. (Figure 1 illustrates the data

transmission between CRIMS, variouscourts, DCJS and OCA.) CRIMScurrently processes approximately 60percent of all dispositions in the State.

CRIMS was designed to provideadditional and more specific dispositioninformation than the automatedOffender-Based Tracking System(OBTS) that it replaced. It was alsointended to provide disposition data tothe criminal history system in a moretimely manner. Within OBTS,transmission was limited to the reportingof docket numbers, warrants issued andreturned, and final charges anddispositions. The transmission ofdisposition data occurred only after acase was completed in court and all courtpaperwork was finished. This approachresulted in the lapse of weeks, and insome cases many months, beforedispositions were updated in a batchmode to the criminal history system.

A wider range of data (as seen inFigure 2) was made available to thecriminal history system through CRIMS.Unlike OBTS, CRIMS transmitsinformation to the criminal historyrepository on-line, in real time. Datatransmission occurs at intermediateprocessing stages at the same time that itis entered into the court’s own database.For example, the disposition related tothe most serious charge will betransmitted to the criminal history systembefore more detailed records areavailable. This preliminary transmissionof the most significant case-relatedinformation has resulted in timely accessto partial disposition data for hundreds ofthousands of cases.


CRIMS also supports the OCA’spaper-based criminal dispositionreporting process. Under this system, theremaining courts in the State submitdisposition reporting forms to data entryunits for posting to CRIMS and theautomated criminal history file. Theseforms, which are generated by 119upstate city and county courts from a PC-based case tracking system, are shippedto a data entry unit within OCA.Approximately 25 percent of the State’sdispositions are processed through thesecourts. Over 2,000 town and villagecourts submit the same forms to DCJSfor data entry. Although a handful ofthese courts possess PC-based systemscapable of generating the dispositionreporting form, most of them submitmanually prepared forms.

— Impact of automated reportingI believe that the positive impact of

automated disposition reporting, in termsof more timely and completedispositions, is quite clear. (Figure 3illustrates a distribution of dispositiondelivery times in days for the uppercourts that process felony cases andreport to CRIMS. The dispositiondelivery time is the period between thedate when the disposition occurred andwhen it was posted to the criminalhistory file at DCJS.) In New York City,two of the five counties transmit over 90percent of disposition cases within a day.None of the counties transmits less than92 percent of their cases within 5 days.Within the upper courts of upstate NewYork, five of the eight courts transmitbetter than 90 percent of felonydispositions within the 6- to 10-dayrange.

By contrast, the nonautomatedcriminal disposition reporting system isexperiencing data entry backlogs. Thereis an approximately 1-month backlog atDCJS where the data entry ofdispositions for town and village courtsare performed. Likewise, the unit atOCA, which is responsible for the dataentry of the upstate city and countycourts, is experiencing a 2-month dataentry backlog. Furthermore, thesebacklogs do not factor in the time period

required to generate the paper dispositionreporting form or mail the form to thedata entry site.

In terms of missing dispositions,automated reporting sites handilyoutstrip the performance ofnonautomated courts. Statistics for thepast 15 years indicate that on-line,automated sites report a missingdisposition level of approximately 8percent. For the same period, the level ofmissing dispositions for city and countycourts — those that are automated butwhich report computer-generateddisposition reporting forms to the OCA— stands at 17 percent. For town andvillage courts, where little automationexists, the level of missing dispositionshovers around 26 percent.

— Additional automation benefitsGiven the benefits of automated

disposition reporting, the New YorkState strategy calls for more automation.The OCA is considering the distributionof a scaled-down version of CRIMS toother city and county courts in the State.The system would operate in a personalcomputer environment and probablyhave dial-up capability to the CRIMSmainframe system.

At the town and village court level,OCA is working with private softwarevendors that have developed court casemanagement and tracking systems forsmall courts. The OCA has recentlypublished a Request For Proposalinviting vendors that meet specificationsdefined by both DCJS and OCA staff todemonstrate their systems. Thosesystems that are capable of meeting datastandard requirements, and generatingdisposition information that passesCRIMS edits, will be recommended byOCA to town and village courts.

To further support this effort, NewYork State expects to award $230,000 toapproximately 50 town and villagejustice courts for personal computers andsoftware using Bureau of JusticeAssistance (BJA) funds earmarked forthe improvement of criminal justicerecords.

In addition to CRIMS, there are otherautomated efforts to improve disposition

completeness using Federal funds fromBJA and the Bureau of Justice Statistics.DCJS is creating an automated PC-basedsystem to enable remote updating of thecriminal history file. The first phase ofthis project provides dispositioncontributors in the field with a method toupdate missing dispositions. This systemwill provide probation departments withthe capability to transmit missingdispositions, collected during the pre-sentence process, to the criminal historysystem. It will also provide town andvillage courts without vendor systems amechanism to report dispositions on-lineto the criminal history system.

Another initiative designed toimprove disposition reporting is the on-line transmission of decline-to-prosecuteinformation from prosecutors to thecriminal history repository. Using BJAfunds, DCJS is negotiating a plan toimplement this project with the NewYork County and Kings County DistrictAttorney’s Offices. This effort isexpected to result in the capture ofseveral thousand declinations toprosecute each year, accelerate thereceipt of this information by thecriminal history system, and improve thequality of the data by eliminating a layerof data entry. If these pilot projects provesuccessful, the initiative may be exportedto other prosecution offices.

Reporting dispositions to the FBIThus far I have described the current

and future automated processes forreceipt of dispositions at New York’scriminal history repository. The secondpart of the disposition reporting equationis the means by which we remit thisinformation to the FBI. This mechanismis of particular interest to those Statesthat do not participate in the InterstateIdentification Index (III) and whichaccess disposition information directlyfrom the FBI system rather than from thecontributing State. For nearly 3 years wehave been sending tapes of dispositionsto the FBI on a weekly basis. Onaverage, each tape includes roughly4,000 dispositions.

The revamping of this process is agood example of the efficiencies realized


through automation. (See Figure 4 for anillustration of this process.) Under theprevious process, DCJS mailed criminalhistory rap sheets to the FBI which theythen used to manually key dispositioninformation into their system. At the timethat the new tape process was initiated,the FBI had an approximate 3-yearbacklog of dispositions to enter. The newprocess has eliminated the need for dataentry at the FBI and the backlog ofdisposition information no longer exists.

Process and practiceinfrastructure

For even more significantimprovement in the area of dispositionreporting, New York State needs toharness its existing technicalinfrastructure of automation andcommunications capabilities with aninfrastructure of “standard processes andpractices” capable of coordinating theflow and linkage of criminal justiceinformation reported to the State criminalhistory repository.

This infrastructure development issueposes a major challenge to a State likeNew York, which operates in a highlydecentralized criminal justice system.Past studies of the New York Statecriminal justice system have underscoredthe poor fit between the process andstructure of criminal justice as a keyobstacle to system coordination andintegration. While criminal justice is asingle process that begins with an arrestand ends with release from custody orsupervision, the system’s administrativestructure is very decentralized. Over3,000 criminal justice agencies operatingat the State, county, city, town andvillage levels of government in NewYork are responsible for theadministration of justice. Within thistype of administrative landscape, it isinevitable that variations in processes,practices and mechanisms for reportingdispositions will evolve.

Over the past year, DCJS staff, fundedby a BJA grant to improve criminaljustice records, have visited criminaljustice agencies in five counties toexamine how those agencies collect,

transfer and report criminal historyinformation.

— Practices which interferewith disposition reporting

Here are a few examples of what wefound to provide an idea of the variedpractices that interfere with dispositionprocessing.

For example, variations in agencydata collection procedures can lead toincomplete or inaccurate dispositioninformation. (One scenario is illustratedin Figure 5.) During our study, two lawenforcement agencies interviewedindicated that they typically issuedappearance tickets for fingerprintablecrimes. In these jurisdictions, the arrestedparty is not fingerprinted until after thefirst court appearance. The agenciesfollow this practice, which is permissibleunder New York State law, to savepolice officers the time of taking theseindividuals into custody and transportingthem to the station house forfingerprinting. However, as thoseagencies admitted, this practice makes itmore likely that individuals will not befingerprinted if they do not return for thefirst court appearance. Without an arrestfingerprint card, a subsequently reporteddisposition cannot be effectively reportedon the criminal history system.

Another scenario is illustrated inFigure 6. Often, police agencies withauthority in multiple court jurisdictionsarrest persons who have committedoffenses in several of these jurisdictions.Sometimes all of the offenses are postedto a single fingerprint card. Under thisscenario, only one of the courts willreceive the single fingerprint stub, whichincludes the court control number, whichis used to link the disposition with thearrest event posted on the criminalhistory system.

Our field work also found examplesof how inadequate communicationsamong criminal justice agenciescontributed to incomplete or inaccuratedisposition reporting. This scenario isillustrated in Figure 7. This problemoccurred most often in reportingdispositions where multiple arrests ormultiple incidents spanning several

courts were involved. The districtattorney’s office was frequently involvedin closing out these cases by presenting aplea bargain in one court to coveroutstanding charges in other courts. In atleast one county visited, the districtattorney did not notify the other courtsinvolved when multiple incidents wereclosed out in a single court. Thus, thesecourts were unable to report a dispositionfor that case, leaving the appearance of amissing disposition on the criminalhistory record.

— Solving weaknessesin the infrastructure

The data quality problems that I havementioned reflect weaknesses in thecriminal history informationinfrastructure. While additionalautomation may increase reporting andreduce the amount of inaccurate orincomplete disposition information, thefull potential of this technology will notbe realized unless an infrastructure ofstandard processes and practices isdeveloped. To that end, a major BJA-funded project for New York State is thedevelopment of a Standard Practicesmanual. Working with State and localcriminal justice agencies, DCJS plans topromulgate a manual organized by typeof criminal justice agency. For eachagency, the manual would specify thetypes of criminal history processingfunctions performed. For each function,the manual would provide:(1) An overview of the significance

and importance of the function tocriminal history processing and tothe operations of that agency andother criminal justice agencies.

(2) The answers to what, when andhow information, required by anagency to carry out its processingand reporting functions, should bereceived.

(3) Answers to when and how anagency should collect informationfor which it is the original source.

(4) What steps the agency should taketo process criminal historyinformation in order to addresstimeliness, completeness, accuracyand quality control concerns.


(5) How, what and when the agencyshould transfer information to localcriminal justice agencies.

(6) How, what and when the agencyshould report criminal historyinformation to the repository andother State criminal justiceagencies.

The manual will include examples toillustrate how processing should occur. Isee the manual’s development as anopportunity to review and revise, oroverhaul, existing practices though adialogue between the repository andreporting criminal justice agencies. Thisexercise should allow us to re-engineersome aspects of the process and makesubstantial improvements in criminalhistory availability and quality.

System costI would like to briefly touch upon two

of the big questions raised by the BradyAct — how long will it take and howmuch will it cost to automate criminalhistory records?

On a State-by-State basis, the answersobviously will vary according to theState size and the technical level onwhich it currently operates. In New YorkState, the development andimplementation of the CRIMS automateddisposition reporting system and the on-line interface to the automated criminalhistory file at DCJS has taken 8 years todate and other system features are still indevelopment. In terms of cost, here aresome ballpark figures. The OCAestimates that the development ofCRIMS to date has cost approximately$10 million, which includes the cost ofequipment and programming. Theyestimate the annual maintenance budgetto run in the area of $1.6 million. Interms of developing the CRIMS interfacewith the criminal history system, DCJSestimates its manpower costs atapproximately $1 million fordevelopment and an annual maintenancecost of approximately $125,000.

So as not to overstate costs, I shouldreiterate that CRIMS is much more thana disposition reporting system. It is acomprehensive case-tracking and courtcalendaring system as well. On the other

hand, to avoid understating costs, thesefigures only reflect the cost of reportingdispositions for 60 percent of the States’cases and do not factor in the cost ofdeveloping and maintaining the criminalhistory system and existingcommunications infrastructure or thecost of an existing knowledge base.

In closing, I hope that I have imparteda sense of the magnitude of current andfuture effort, as well as the cost, ofimproving disposition reporting in NewYork State.


CRIMSAdditional Data Elements

Arraignment Date

Arraignment Charges

Added Charges

Charge Reductions

Jury Trial Indicator

Release Status

Attorney Type

Attorney Name & Address

OCA Personal Demographics

Conditions of Discharge

License Suspension Time

Drug Type

Judge’s Name

Figure 2: Additional data elements in CRIMS


Arrest Scenario

Appearance Tickets

Court Appearances

Fingerprints (often not done)

Dispositions

Without a fingerprint card, an arrest event is notposted to the criminal history file. Therefore, there isno event to which to attach the dispositions.

Figure 5: Arrest scenario #1


Day two opening addressLaurie O. Robinson

Keynote addressJanet Reno


Day two opening address

LAURIE O. ROBINSONActing Assistant Attorney General

Office of Justice ProgramsU.S. Department of Justice

It has been almost exactly a year sincePresident Clinton announced hisintention to nominate Janet Reno as hisAttorney General. When he made thatannouncement, the President said hisnominee would bring a sense of pride,integrity and new energy to the JusticeDepartment, and that she would be aninnovator for law enforcement in thiscountry. I think you will agree with methat the Attorney General has done all ofthat, and more.

In the 6 months that I have been at theJustice Department, I have had theopportunity to see up close howcommitted she is to doing somethingabout the violence in this Nation and, inher words, to “put people first.” Whenyou look at her background, it is notsurprising that Janet Reno has done anenormous amount in a short period oftime to help focus the Nation’s attentionon the proliferation of guns in oursociety, problems with child abuse, thescourge of domestic violence, and thecrisis of violence in our streets.

As the State’s Attorney for DadeCounty, Florida, for 15 years, she wasbold in implementing innovativeprograms on domestic violence, victim-witness assistance, child support andjuvenile justice. They have becomemodels for her State and for the Nation.At the Office of Justice Programs, we aretrying to replicate many of those sameprograms today around the country.

She spearheaded the establishment ofa Children’s Assessment Center to assistchild victims of sexual and physicalabuse. She established a Drug Court,now so famous that it has become theforerunner of many similar programsaround the country which we hope,

through Crime Bill funding andprograms, to see spread across thisNation.

In Washington, Janet Reno has builton her Florida experiences to translatebroad policy objectives into practice,finding practical solutions to theproblems faced by communities acrossthe country. She has worked hard tobring everyone to the table in this effort:Federal, State and local criminal justiceagencies, human services officials,community groups, schools, publichealth and law enforcement.

As the Attorney General said in herfirst address to Justice Departmentemployees, we must use our limitedresources to build real partnerships withState and local governments —partnerships that are built on mutualregard and respect. Because of her ownbackground at the State and local level,she has a unique understanding of thefrustrations which State and localofficials face in dealing with the Federalgovernment. She often says that as alocal official, she has sat “across thetable” in dealing with the Federalgovernment. For that reason, she ispledged to make this Justice Departmentmore responsive and user-friendly tothose of you on the State and local side. Ihope we are making steps in thatdirection. Obviously, one of the mainreasons for holding this conference is tobring us all together as we look at newchallenges with the implementation ofthe Brady Act and the National ChildProtection Act.

We know all too well the problemscaused by the proliferation of illegallyobtained firearms. Our National Instituteof Justice and Office of Juvenile Justice


and Delinquency Prevention recentlycompleted a study which found thathandguns of all types — even military-style rifles — are readily available, evento young people. More than one out offive male high school students surveyedin crime-ridden urban neighborhoods infour States reported owning a gun. Asimilar survey of male juveniles behindbars in those same States found that 83percent said they had at least one gun athome. The Attorney General hasgrappled with these tough issuesthroughout her career as State’sAttorney, when she worked on revisingthe State’s criminal code for the FloridaSenate Criminal Justice Committee, andas Staff Director of the JudiciaryCommittee of the Florida House ofRepresentatives.

Before I present her to you, let meturn to something more personal. I amoften asked by friends or familymembers to describe what Janet Reno isreally like. In every sense, she has apresence that is larger than life.

She is also determined, wanting topress forward on a project wheneveryone else in the room may secretlywant to give up and go home. That kindof commitment and determination is avirtue when it comes to getting thingsdone.

She also is one of the moststraightforward people I have ever met.She does not mince words. Many yearsago, a Florida friend of hers told me thatJanet Reno always speaks her mind. Isaw that side of her in the 1980s in barassociation work, when she neverhesitated to state her views — even ifthey were unpopular ones.

She is also deeply committed. It isthat commitment that has been amainstay for her throughout her career,and which characterizes her approach asshe tackles the tough problems all of usface today.

I have also seen how much she caresabout people. I have seen that in thepersonal notes she sends to families ofslain police officers, in the time she takesto visit children in inner-city publicschools to read to them, and in the factthat she does not want to be an Attorney

General who is isolated behind a desk;she would rather be someone who getsout, talks with the employees at theDepartment, visits U.S. AttorneysOffices, and talks with people who aredoing something about crime in theirown neighborhoods. That caring attitudetouches everything she does.

I hope you will join me now inwelcoming Janet Reno, the AttorneyGeneral of the United States.


Keynote address

UNITED STATES ATTORNEY GENERAL JANET RENO

Thank you very much, Laurie. I spoketo the State Supreme Court ChiefJustices yesterday and as I explained tothem and as I will explain to you, I am aproduct of a local system — of a Statecourt system. I am now here at theFederal government, and I do not want toforget where I came from and howdifficult it is to deal with the issues oftechnology, of constitutional issues, ofpolicing on the streets of America. Localand State law enforcement have thehardest single job of anybody in lawenforcement, and they do an incrediblejob considering all the Federalregulations that we impose and all theunfunded Federal mandates that are oftenimposed on local government. I want todo everything I can to work with you onthe issues that we discussed today, andon the issues of the future, to make surethat there is a real partnership so that theFederal government does not come totown to say, “Hey, we know better,” butthat “We understand the difficultproblems that you face, and we will workwith you to use whatever Federalresources are available to solve them.”

There are scores of legitimate reasonsfor needing to know whether a certainindividual has ever committed a crimeand, if so, what crime? Yet, as I willdiscuss today, our current ability to dothat is distressingly inadequate. I thinkabout my own experience of trying todevelop a career criminal program andtrying to get sound and immediate priorrecords to prove what we were doing andto focus our priorities on the true careercriminal. I think in terms of trying to getinformation to court for pre-sentenceinvestigations. Every time I turnedaround, criminal records were keyed toeverything we were doing and the issuesinvolved were very, very difficult. But Ialso had a sense of hope. I used to sitthere in Miami, as I struggled with the

Metro-Dade Police Department’sidentification and records section, andtried to understand what the issues were.To think, in 10 years, I am going to belooking at this and thinking, “We didwhat? We were able to provide thatmuch information with that kind oftechnology?” I am convinced that if wework together and use technology in theright way — if we avoid duplication andif we all go in the same directiondeveloping the best we can with theresources we have — criminal historyinformations are going to be easilyaccessible and law enforcement’s effortswill be far enhanced by that effort.

It is all too easy to forget how oftenwe need to know about a person’scriminal history. For example, whenbond is set in a criminal case, how manyof you have stood before a bond judgesaying, “Well, we really don’t knowabout the defendant’s criminal history.”How many of you have picked up thepaper a day after a bond hearing to findthat a man whom you let out because youthought he had no priors, had killedsomebody? I have been there, and ithurts. A defendant’s criminal historymay indicate whether there is a seriousrisk of flight when a judge prepares tosentence an individual convicted of acrime. The judge is entitled to know thepast criminal behavior of the personstanding before the bench. When ourgovernment is trying to decide whetheran individual can be trusted to haveaccess to our Nation’s military secrets, ahistory of criminal behavior also mayshed light on that question.

Yet the legitimate uses for criminalhistory background information go wellbeyond the needs of criminal justice andother agencies. In various States,criminal background checks are donebefore individuals may be hired as banktellers, day-care workers, retirement


home aides and school bus drivers. Iknow how difficult it is to balance therights of individuals to work in day-carecenters with the desperate need to makesure that people who work with ourchildren can be trusted enough to do so.Checks are done before licenses areissued to sell insurance, run an auction,or serve food to the general public. Insome States, we check backgroundsbefore people can take leadership roleswith public organizations. Now theBrady Law provides that we shouldcheck for a criminal history before wesell someone a gun. And we must makesure that the National Child ProtectionAct is implemented. We need to haveaccurate criminal history recordinformation to do so.

The business of criminal histories is atricky one. Our society believes thatpeople can make mistakes and that thosemistakes should not necessarily be heldagainst them forever. Our society alsobelieves that we should respect people’sprivacy. Our society also understandswhat happens to a person when they getunfairly labeled with inaccurateinformation and how disastrous that canbe in this era of automation. Thatinaccuracy can follow a person throughone credit check or background checkafter another, and it sometimes takes anact of God to erase it from the automatedsystem.

Our society has learned that we musttake steps to protect ourselves from thosewho have not just made a mistake, butwho have broken the law repeatedly orwith malice, those who by their actionshave demonstrated that they aredangerous. It is, unfortunately, becauseof these people — those who havedemonstrated that they cannot be trusted— that we must check the backgroundsof all people who wish to engage inoccupations or activities in which onlythe people that society trusts should beallowed to engage. But we must makesure the information is accurate and well-maintained, and we must do so consistentwith due process.

Given the new miracles of technologywhich emerge every day, our currentability to conduct reliable background

checks is abysmal. (Figures 1 and 2 helpto illustrate the current state of affairs.)Figure 1 shows records held by Statesand the FBI in 1992. Referring to thischart, which uses the best data availablefrom 1992, we can see that, at that time,there were just over 53 million criminalhistory records scattered throughout thecountry. This chart shows that of those53 million, just 17.5 million of them, or33 percent, were available through theInterstate Identification Index (III), theonly real multi-State database of criminalrecords. Thus, in 1992, a computersearch would not even have had access totwo-thirds of the criminal history recordsin the country. But it gets worse.

Of the 17.5 million records availablein III, only about 9 million of them hadinformation about the ultimatedisposition of the case. How manycriminal histories have you looked atwhere there is an arrest for a very seriouscrime and no disposition? The judge isabout to sentence the defendant or placethe defendant on probation. You aregrappling with the hard issue that thejudge will not give you a continuance,and you just wish you had thedispositions there. What is the result?This means that for about 8 million ofthose 17.5 million records available inIII, we can see that an arrest is made, butwe do not know what happened. We donot know if the person was convicted,acquitted, had the charges dropped, orpleaded guilty to a lesser offense. Forpurposes of evaluating a person’sbackground, almost half the recordsavailable in III do not tell us what weneed to know.

So where does that leave us? It leavesus with only 9.2 million records in IIIwith case dispositions out of a total of 53million records — just 17 percent. Just17 percent of the criminal records in thiscountry are complete enough andaccessible enough to be instantaneouslyuseful to our law enforcementcommunity and the rest of society. And17 percent is so far away from a passinggrade — let alone the A-plus qualitywork to which Americans are entitled —that we must make improvements in this

area on a national, State and local basis,and as a priority.

To be fair, there has beenconsiderable improvement in recentyears. I think back to 1978 when I tookoffice as State’s Attorney, and see adistinct difference.

Figure 2 shows the percent of criminalrecords accessible through the III.Federal and State funds have beeninvested in the effort to improve criminalhistories. Some have started to recognizethe critical nature of improvement in thearea. Thus, the percent of criminalrecords accessible through III has risenslowly, but steadily, through the first halfof this decade. We are now up to 39percent of all criminal records includedin III. Twenty-six States now participatein III and by the end of 1994, between 30to 35 States will be participating in III.And disposition reporting has beenimproved, too. Through tremendousefforts on your part, we are makingprogress, but we still have a very longway to go. I recognize that it is anextraordinarily difficult task to automateall of the those records that are stillmanual, to link the data that arecontained in different automatedsystems, and to make those recordsimmediately available. Nonetheless, theAmerican people expect no less of us,and we cannot let them down.

Fortunately, when the Congresspassed the Brady Bill, it understood thatwe were not ready to rely on an instant-check system starting at the end ofFebruary 1994. There was a recognitionthat computerized records with casedispositions were not sufficientlycomplete to prevent sales to prohibitedbuyers. That is why the Congress gaveall of us involved in conductingbackground checks 5 working days tocomplete the checks.

Because of the current state ofcomputerized records, the backgroundcheck burden will fall even more heavilyon local law enforcement. When thecomputer shows an arrest without adisposition, you will have a few days tofind out what happened in that case.When there is a question about which“John Smith” is seeking to buy a gun —


and whether it is the same John Smithconvicted of aggravated battery last year— you will have a few days to find out.

Without the 5 working days whichlaw enforcement agencies have beengranted to conduct background checks,you would be forced to rely exclusivelyon that computer system that is so faraway from a passing grade right now.The 5-day waiting period is a critical toolfor law enforcement officials. That givesyou at least some of the time you need toconduct a reliable background check.

At the end of 5 years, we must beready to conduct background checks, notin 5 days, but instantaneously. That, too,will be a substantial challenge. I believethat working together, we can meet thatchallenge. And I look forward to tryingto do everything I can to support yourefforts and to use the Federalgovernment in ways that can be mosthelpful to you.

Those of you here today are on thefront line. You maintain the records. Youuse the records. You have prosecutorshollering at you. You have judges tellingyou to be in court 5 minutes before youare supposed to be over there. I havebeen there. I have been calleddownstairs, from the sixth floor to thefourth floor, and asked why I did nothave the criminal history records of thedefendant. I understand. You are courtadministrators, probation officials, policeofficers and judges. You work fororganizations concerned with crimevictims, child abuse and sensible gunlaws. When I talk about the importanceof criminal background checks to thepeople assembled here today, I think,“You know it better than anybody else.”And it falls on those of us whounderstand the problem to make it apriority for our Federal, State and localgovernments.

The politicians love to build jails, andat times they love to provide operatingexpenses for jails. But when we considerthe difficult issues of technology,technology that can make lawenforcement so much more effective, itbecomes incumbent upon those of uswho understand how important it is toappear before county commissions, State

legislators and governors’ cabinets and tolet them know how critical thisinformation is, and what we can do witha relatively small investment to makelaw enforcement so much more effective.We can explain it to them in these terms:“Technology is a wave of the future; ifyou make this investment now, you aregoing to save us dollars in re-arrests thathave to be made because a dangerousoffender was let out of prisonprematurely because we didn’t havecriminal records.” You are going to beable to explain to them that we could puta career criminal away, and keep himaway, because we had the up-to-datedisposition information, rather thanseeing the offender released onprobation, only to be recycled back intothe system — both a tragic injury to avictim and a considerable expense toarresting and prosecuting authorities.

We can make a difference. We mustremind the public of the uses for whichthey expect criminal history records to beavailable, and we must be honest withthem about how far we have to go beforewe can have a really reliable check todetermine someone’s criminal history.Furthermore, the Federal governmentmust do its part to assist you in this effortin every way we can. I am pleased thatPresident Clinton’s budget submitted tothe Congress on February 7, 1994,requested $100 million for theimprovement of State criminal historyrecord quality and accessibility. Thismoney, if appropriated by the Congress,will be distributed in grants based on thepriorities established in the Brady Lawand the timetables established by theJustice Department, in consultation witheach State. The Justice Department doesnot decide these priorities; we will setthese priorities working jointly with theStates. In addition to providing funding,the Justice Department and the FBI willcontinue our partnership with all of youto make sure that we have a nationalrecords system that works — one thatprovides the type of complete, accurate,timely information we and the criminaljustice community need. With yourdedicated efforts and with these criticalFederal funds, I have no doubt that

working together, we can make realprogress toward improving all of thecriminal history databases in thiscountry.

We have the Brady Law. And we nowhave the National Child Protection Act,or the “Oprah Winfrey Bill,” which willimprove the quality of our data regardingthose who commit crimes against thesechildren. But these laws are only a smallpart of the mosaic of uses for criminalhistories.

The President has called for anenactment of the “Three Strikes AndYou’re Out Law,” and we are working todefine it carefully so that we go after thetruly violent offenders — the people whoI have long said should be put away andkept away. But I understand, as I havementioned, what it is like to try to provethat somebody is a career criminal — totry to prove that somebody had “threestrikes.” How can such a sensible lawwork if we do not know which peoplehave committed violent crimes in thepast? Right now, the computer can onlygive us reliable information, in thatregard, for less than 25 percent of thecriminal histories in our country. For“Three Strikes and You’re Out” to keepviolence off the streets, for the BradyLaw to keep handguns out of the reach ofthose who should not have them, for theNational Child Protection Act to keepour children safer from child abuse andneglect, we must improve the quality ofcriminal history databases, and we mustdo it quickly.

I thank you all for your dedication tolaw enforcement, whether it be in theissue of criminal histories, communitypolicing, support that we can give youfor technology, or technical and expertinformation that we can share with you.We want to develop a mechanism fortruly sharing.

There is an interesting “face” to lawenforcement in the Federal governmentnow. We have, as Director of the FBI, aman who was an FBI agent, who was aFederal prosecutor, who was a Federaljudge. For the United States Marshal, wehave a man who was Deputy Director ofthe Metro-Dade Police Department andChief of Police in Tampa, Florida, a man


who came up through the ranks fromPatrolman to become the Director of theUnited States Marshals Service. As theleader of the Drug EnforcementAdministration, we have a man whoworked his way up through the ranks inNew York to become Commissioner ofthe State of New York, who understandsthe aspect of law enforcement from aState perspective. And you have a localprosecutor hanging around, too. Neverhas there been, I think, such a chance forcooperation. There is now a splendideffort underway between the Federalagencies and the Justice Department. TheDEA and the FBI have announced aresolution of the intelligence sharingaspect of their two agencies that, I think,brings unparalleled efforts of cooperationand coordination and an end to turfbattles.

More importantly, I think we nowhave the chance to share with you as realpartners. You are the people on the frontline. You are also the people who are onthe front line of probably the greatestburst of knowledge in all of humanhistory. You have to take what that streetofficer knows and what that scientistknows and marry them together so thatwe can form an effort where lawenforcement is going to be ahead of thesophisticated crooks, where lawenforcement is going to have up-to-dateinformation so that it can respondimmediately. We look forward toworking with you in that partnership.

Thank you.

Records held by States and the FBI, 1992

Total records

In III

In III withdispositions

53.3

17.5

9.2

million

million

million

100%

33%

17%

0 20 40 60

Millions

Estimates were derived from FBI data on Interstate Identification Index (III) participation and a survey of State record holdings by SEARCH Group, Inc.

Figure 1: Criminal History records held by States and the FBI, 1992

Percent of criminal records accessiblethrough Interstate Identification Index ( III )

40%

30%

20%

10%

0%

Estimates are based on surveys of State record holdingsby SEARCH Group, Inc. and data provided by the FBI.

30% 31%33% 36% 39%

1990 1991 1992 1993 1994

Figure 2: Percent of criminal records accessible through III


National Child Protection Act of 1993

Requirements and systems of theNational Child Protection Act: Panel

Requirements of the National Child Protection ActJames X. Dempsey

Authorized record checks for screeningchild-care and youth-service workers

Noy S. Davis

Report on national study of existing screeningpractices by child-care organizations

Kimberly Dennis

Current child abuse crime reporting:A State experience

David Eberdt


Requirements of the National Child Protection Act

JAMES X. DEMPSEYAssistant Counsel

Judiciary Subcommittee on Civil and Constitutional RightsU.S. House of Representatives

I want to take a few seconds toacknowledge our gratitude to SEARCHGroup, the organizer of this conference.SEARCH is a tremendously usefulresource, one that our Subcommitteerelies on heavily. Gary Cooper, theExecutive Director, is alwaysimmediately available to consult with usover the telephone, to explain the likelyimpact of particular proposals or to putthings in perspective for us. Bob Belair,the General Counsel, is one of theleading experts in Washington, D.C. onprivacy matters and records informationpolicy. He is always very helpful andavailable to provide advice on issuesboth large and small. Over the years, Ihave had the pleasure to work with theformer Chairman, Gary McAlvey, whohas visited our office in Washington anumber of times and walked us throughimportant issues in the area of recordspolicy. Jim Martin, a SEARCH BoardMember, is someone I have talked to ona number of occasions at the NationalCrime Information Center AdvisoryPolicy Board (NCIC APB) meetings andwho has always been very helpful. P.J.Doyle, Chairman of the NCIC APB anda former SEARCH Member, is anotherperson we listen to and rely upon.Congressman Don Edwards, theChairman of our Subcommittee, alwaysdescribes SEARCH as an importantfriend of the Subcommittee.

Federal mandates requiringcriminal history records checks

We know that State and local criminaljustice practitioners are the ones whohave to implement the mandates thatcome down from Washington. We knowthat they are being pulled in hundreds of

directions at once. At the Federal level,there are also a host of interests to bebalanced in trying to draft a piece oflegislation on any issue. I think thisconference is part of a continuingdialogue that we need to have as we tryto work through these issues. The fact is,the use of criminal history records forbackground screening purposes in theemployment and licensing areas is atrend that is going to continue in anunabated manner.

We continue to see proposalsdemanding that Federal legislation eitherrequire or authorize criminal historybackground checks in a host of areas. Asthe Attorney General pointed out, and asour Subcommittee recognizes, theserecords are currently very limited as areliable screening device. The numberone problem, of course, is the lack ofdisposition data. This is a problem thatwe are increasingly trying to deal with inlegislation. Both the Brady Act and theNational Child Protection Act addressthis issue head-on.1 In the course of that,they impose significant responsibilitieson State and local officials who managethese record systems.

When the Subcommittee approaches apiece of legislation like the NationalChild Protection Act, one of our primarygoals is to try to ensure that thelegislation fits into the existing system.All too often, we see proposals put forthwhich mandate criminal historybackground checks for a particular area.

1 Brady Handgun Violence Prevention Act,Pub. L. No. 103-159 (November 30, 1993);National Child Protection Act of 1993, Pub.L. No. 103-209 (December 20, 1993). Thetext of both Acts are included in this report asAppendixes 1 and 10, respectively.


The proponents often are unaware thatthere is an existing, working,decentralized State-based system withthe FBI as the national focal point. Thelegislation often proposes setting up anew system (such as one that only checksday-care workers or some other sector).Our goal, at the very least, is to try tobring that legislation within the existingsystem and to avoid reinventing thewheel.

As I said, the pressure for use ofcriminal history records as a screeningdevice is not going to end any time soon.There is a bill pending in the House rightnow which would require the States toconduct criminal history backgroundchecks for all private security officers,both those who carry weapons and thevast majority who do not.2 Of course,this is a sector that vastly exceeds swornlaw enforcement officers in numbers.

One interesting thing in that bill —and it is another issue we will seeincreasingly — is a desire to bypass theState repository in conducting therecords checks in favor of going directlyto the FBI. That is born from a concernthat State criminal history records checksare taking too much time. There is alsoan obvious significant delay at theFederal level. But the proponents ofthese checks argue, “Sure there is a delayat the Federal level, but why should wealso face a 6-week or longer delay at theState level? Let us just jump right overthe State check and send the card straightto the FBI without a local check.” That isthe argument about fingerprint-basedbackground checks that is going to bemade increasingly, given the time framesinvolved.

National Child Protection ActIn terms of the National Child

Protection Act, I am going to reviewwhat I think are the ways in which itconforms to the existing system and thenhighlight some of the differences. Whatare the main elements of the Act?

2 H.R. 34, introduced by Rep. MatthewMartinez (D-California).

— State law authorizing checksThe first element of the Act says that

each State that wants to conduct nationalcriminal history record checks of childcare or youth service workers must passa law. (It is important to note that the Acttries to say that there is an existingbackground check system, and that manyStates already have some form of lawrequiring a criminal history record checkon certain individuals having contactwith children.)

The main section of the Act, Section3, is not self-activating: a State wouldhave to pass a law before the Act’sprovisions can be enforced. Thus, if theStates receive telephone calls, inquiriesor fingerprint cards from child careproviders and there is no State lawallowing the checks, the providerscannot cite this Federal legislation asauthority for conducting those checks. Ifthe FBI receives fingerprint cards, Ibelieve they will turn those cards backunless there is a State law defining whatcategories of jobs or positions requirethe background check.

In that context, we left it very wideopen to the States as to how broadly toextend the coverage of such a law intheir particular State. We always try toremain sensitive to the Federalism issueand the question of how much we tell theStates to do as opposed to how much wesimply suggest to the States. (Such asoutlining goals or parameters for theStates to operate in, leaving the finaldecisions as to how the laws will look tothe States.) At the Federal level, I do notthink we could specify for every State acategory of occupations (both paid andvolunteer) that would require abackground check. We left that decisionto the States. Therefore, just as thesystem has always operated prior to theChild Protection Act, there still must be aState law that allows FBI criminalhistory background checks of child careproviders.

— Fingerprint-based searchesThe second element of the Act

stipulates that the criminal records searchmust be based upon fingerprints. On theemployment side, there is tremendous

pressure to move toward name-checks orto have name-checks followed up byfingerprint checks. Again, this is bornlargely from the frustration with thewaiting periods that are entailed withfingerprint checks. But this Act makes itclear that there must be a fingerprintaccompanying each request for acriminal history background check.

— Searches processed through aState agency

The third element of the Act is thatthe fingerprint-based search request mustbe submitted by, and the results are to bereturned to, a State agency. Again, anobjective of the Act was to keep the Stateagencies involved in the process and nothave a situation where employers arebypassing State agencies and goingstraight to the Federal government.

— Entire record sent to StatesFourth, the Act intends that the entire

record, including arrests withoutdispositions, would be made available tothe State agency. That is, once thefingerprint card or the fingerprint imagesare forwarded to the FBI, the entirerecord goes back to the State agency.

— States determine disqualifyingoffenses

Fifth, the State agency which hasresponsibility for regulating child care inthat State must make a determination asto whether the individual has beenconvicted of a crime which wouldnegatively affect the person’s suitabilityfor contact with children.

Again, the Subcommittee tried to givethe States maximum latitude here. Whenthis legislation was originally introduced,there was a list of so-called “backgroundcheck crimes,” the conviction of whichwould render a person disqualified fromemployment related to child care. As theAct now stands, however, there is noconcept of what is considered abackground check crime and the Actdoes not provide a specific list ofoffenses which are disqualifying.Ultimately, it is impossible to draw upsuch a list: first, it is easy to forget toinclude a particular crime; second,


subsequent statutes may be passed whichhave a direct bearing on the list ofdisqualifying crimes. There is always aproblem in compiling a list like that.

Instead, the Act uses a general termthat was drawn from an earlier Federalstatute on background checks: “…convicted of a crime that bears upon anindividual’s fitness to have responsibilityfor the safety and well-being ofchildren.” We try to keep that as broad aspossible and to give the State regulatoryagencies, either by statute, regulation orpractice, the ability to determine whatwould be a conviction that woulddisqualify a person from havingresponsibility for children. This approachalso saved us from dealing with thoseparticular cases where, for example, anagency might want to hire someone whohas a drug conviction to work as a drugcounselor in a youth program. For us tosay that a person with a prior drug recordis, per se, disqualified, would put astraitjacket on some of those programs.Thus, we leave some flexibility to theStates.

— Right to challengeThe sixth major element in the Act is

that an individual who is affected by thecriminal history record check has a rightto see the record and to challenge theaccuracy or completeness of any of theinformation.

— Prohibition againstredissemination

Finally, the Act includes a catch-allreference to Public Law 92-544, theFederal law that governs State access tothe FBI’s identification records foremployment and licensing purposes.

New elements in the ActWhat is new in the National Child

Protection Act? There are some newelements in this law that go beyondcurrent practice and do impose somemandates on the States.

— Mandatory reporting of childabuse crimes

First, Section 2 of the Act requires thereporting of child abuse crime

information to the national criminalhistory system maintained by the FBI. Tomy knowledge, this is the first time thatCongress has mandated the reporting ofcriminal history records to the FBI. Upuntil now — although there has beenwidespread participation by the States fordecades — that technically has been avoluntary system.

The Act singles out a narrow categoryof records called “child abuse crimerecords” for reporting. The law is a clearindication by the Congress that it isimportant to have a single system bywhich we can conduct 50-State checkson individuals seeking to work withchildren. In a sense, we have taken onecategory of employee, one category ofrisk, and elevated it by requiring that theStates must submit those records to theFederal government so that there is acentralized location to conduct a 50-Statecheck.

The Act, in referring to thismandatory reporting requirement, saysthe States shall report or index theirrecords with the national system. Thereference to indexing was specificallyintended to anticipate the ultimate fulldecentralization of State criminal recordssystems through the InterstateIdentification Index (III).3 Until the III isfully implemented and until there issome way to resolve the conflicting Statelaws that involve access to these records,in most instances, most States willcontinue to forward their full records tothe FBI. But in anticipation of adecentralized system and in an effort topromote the III, the Act says that Statesmust report or index child abuse criminalrecords to the Federal government.

The Judiciary Committee Reportaccompanying the legislation providessome background information and mayhelp resolve some individual issues that

3 When the issues involving noncriminaljustice access to the criminal history recordinformation retained in III can be resolved,the Federal and State governments will fullyimplement the III system, in which the Statesmaintain the full criminal history records andthe FBI retains an index “pointing” to theState which holds the actual records.

come up under the legislation.4 Thereport makes it clear that neither theStates nor the FBI are required, underthis legislation, to create new databases.We are not proposing, and I do not thinkthat the Act should be read as such, torequire States to establish separatedatabases or files on child abuseoffenders. The purpose was to tell theStates that within their overall repositorysystem, they must put greater emphasison ensuring that arrests and convictionsin the area of child abuse crimes arereported to or indexed with the Federalsystem so that those records will beavailable for a 50-State check.

— Disposition reportingSecond, the law sets an 80 percent

disposition reporting goal. It says thatStates must, within 3 years from the dateof the law’s enactment, have an 80percent disposition reporting rate forrecords in which there has been activitywithin the preceding 5 years. Althoughthis is a goal, it is also an effort byCongress to say that disposition reportinglevels hamper the usefulness of theserecords. We cannot continue legislatingthe use of these records, we cannotcontinue passing laws offering peoplesome promise of security through the useof these records, when we recognize (butsometimes not publicly) that theserecords are often not useful because ofthe lack of disposition data.

I think the Brady Law doesacknowledge that problem as well. Iknow that all of you have acknowledgedit for many years. People who do notwork with these records systems tend toforget the fact of so many of theserecords lack dispositions. We just couldnot move forward with legislation likethe National Child Protection Actwithout having some very explicitrecognition that there is a problem withdata quality, and that it is something thathas to be dealt with. As we are going tosee continuing efforts to use these

4 House Report 103-393, Report of theHouse Judiciary Committee to accompanyH.R. 1237, the National Child Protection Actof 1993.


records for more and more purposes, thedata quality issue must be addressed.

— 15-day response timeThird, the Act set a goal of 15

business days for responding to recordrequests, and there is language in the lawthat refers to “reasonable efforts” or“best efforts” to meet the 15-dayturnaround time. We recognize that inmany jurisdictions that is unattainable. Itis a goal, and it is a recognition of thefact that businesses and governmentagencies are being adversely affected byhaving to wait months, in many cases, toget a response to a criminal historyrecord check.

— Tracking down dispositionsFourth, the law specifically states that

the regulatory agency receiving back anaked arrest5 on a record must makeefforts to complete that record. Thisinvolves making telephone calls, sendingout written inquiries or doing any follow-up necessary to complete thatinformation instead of just ignoring it,particularly where the record raises somequestions (such as where there are aseries of drunk-driving arrests or wherethere is a single arrest for a violentcrime).

— FeesFifth, a very difficult issue for the

Subcommittee was the question ofimposing background check fees onvolunteer organizations, such as the BoyScouts, Girl Scouts, camp groups andothers that work with children anddepend upon volunteers to do their work.One of the things that worried them themost was the question of a $50 fee beingimposed upon the volunteer ororganization for a background check.

The law tries to strike a balance hereby stipulating that fees for conductingbackground checks on volunteers belimited to the actual cost of doing thecheck. This will, I believe, require someStates to establish a two-tier feestructure, particularly in those States thatare currently charging an increment that

5 An arrest record that has no disposition.

pays automation costs or goes to otherpurposes not directly related to the costof the check. The FBI has long had asegregated fee system and they knowwhat the cut-off figure is. I assume theStates do, as well. An actual-cost feemay still be significant, but we tried toprovide some relief to volunteers.

Although there was significantpressure on us to allow free criminalhistory checks for volunteers, we did notfeel that we could do that. In effect, thatwould force the business-users tosubsidize the volunteer organizations.The legislation does, however, contain arecommendation to the States that theytry to get that fee even lower, if they can,in order not to discourage volunteersfrom participating in child welfareprograms.


Authorized record checks for screening child care andyouth service workers

NOY S. DAVISProject Manager/Attorney

American Bar Association Center on Children and the Law

When the American Bar Association(ABA) first began the study on theeffective screening of child care andyouth service workers, the publicationsof SEARCH and the Bureau of JusticeStatistics were tremendously important.The lengthy review of the literature thatwe did last year includes numerouscitations from both organizations.

I am the Project Manager on a studyby the ABA Center on Children and theLaw titled “The Effective Screening ofChild Care and Youth ServiceWorkers.”1 In an effort to further anunderstanding of the impact of theNational Child Protection Act, mycolleague Kim Dennis and I will besharing information from the studyregarding several topics.

I will review the extent to whichcriminal record checks are currentlyauthorized for the screening of child careand youth service workers. Ms. Denniswill discuss some of the major issuesraised in literature regarding criminalrecord checks, as well as the extent towhich checks are currently used byorganizations and agencies that providecare and other services to children.

ABA study backgroundFirst, I would like to provide more

information about the study. The 2-yearproject is funded by the JusticeDepartment’s Office of Juvenile Justiceand Delinquency Prevention and will be

1 The study was scheduled to be completedand a final report issued in July 1994. Amemorandum from the ABA Center onChildren and the Law summarizing theprovisions of the National Child ProtectionAct of 1993 is enclosed as Appendix 11.

completed in summer 1994. The ProjectDirector is Dr. Susan Wells. The maingoals of the project are: (1) to provide acomprehensive overview and evaluationof the effectiveness of current practicesused to identify potentially abusiveindividuals, including the use of criminalrecord checks, and (2) to makerecommendations regarding a nationalapproach to screening.

To accomplish these goals, we haveundertaken a number of specific tasks.They include:• Developing population estimates as to

the number of people in youth-servingprofessions, as well as the number ofchildren served in those professions.These estimates will assist inidentifying the potential universe ofthose who work with children and inanalyzing the degree of risk tochildren.

• Conducting a nationwide survey ofyouth-serving organizations regardingtypes, costs and the perceivedeffectiveness of their screeningpractices. Ms. Dennis will providesome preliminary findings from thisnational survey.

• Working with the U.S. Department ofDefense to evaluate its screeningpractices. The department is one ofthe largest providers of services toyouth and is subject to a 1990 lawrequiring criminal record checks to bedone on all employees in federallyoperated or federally contracted childcare facilities. To date, no formaldocumentation exists evaluating theimplementation or effectiveness ofthis law in screening out potentialoffenders.


• Reviewing the laws impacting the useof certain screening practices,including criminal record checks.

State statutes authorizingchild care records checks

I will now review the laws thatauthorize access to State or Federalcriminal records to screen individualswho work with kids.

Under the National Child ProtectionAct, Federal criminal background checkscontinue to be available to child- andyouth-serving organizations, providedthere is a State statute approved by theAttorney General authorizing the Federalchecks. I want to clarify this last point,because I have received numerous calls,and I continue to receive calls, fromchild care providers who think that theyare required or entitled to get criminalbackground checks under the Act. TheAct simply does not do this. To obtain aFederal criminal check on a person whoworks with children, there still must be aState statute that authorizes the Federalcheck.

Our State law research, to date,reveals that almost all States now havestatutes that authorize either a State or aFederal criminal record check, or both,for at least some category of person whoworks with kids. The scope and reach ofthese statutes is tremendously different,however, on a number of points, asshown in Figure 1.

— Type of check, work settingsState criminal record check statutes

differ by the type of check authorized(Federal, State or both), with about 60percent of the States currentlyauthorizing Federal checks for some kindof child care or youth service workers.

Figure 2 lists some of the mostfrequently authorized work settings forcriminal record checks. Day care is thesetting for which checks are mostfrequently mandated: About 80 percentof the States require some type ofcriminal record check for at least somecategories of day care workers.

The next setting for which checks arefrequently authorized is foster oradoptive homes. About 60 percent of theStates authorize criminal record checks

for foster or adoptive parents.Approximately half of the States requirechecks for school personnel, and about40 percent authorize record checks forsocial service or social welfare agencies.Roughly one-third of the States’authorized criminal record checks are forschool bus services and another one-thirdare for juvenile-detention or youth-residential facilities. In addition, aboutone-quarter of the States have enactedwhat can be fairly broad provisions thatauthorize criminal record checks forpersons having supervisory ordisciplinary power over a child.

Other settings that are sometimescovered by State record check statutesinclude youth camps, youthorganizations, public recreation or youthprograms. And one State specificallyauthorizes State criminal checks for in-home babysitters.

— Type of workersWithin each of the work settings, the

types of workers to be screened differsand, in some cases, may be quite limited.In most States, statutes include all paidemployees who have contact withchildren, and often include the licensedoperator, owner or administrator.Volunteers, however, are not alwaysincluded. Approximately one-third of theStates that authorize checks for aparticular work setting do not includevolunteers. And a few States authorizechecks only on the licensed operator,owner or administrator of a facility ororganization. Thus, checks for some ofthe people who may actually be workingwith the children are not included.

— Required or permitted checkAnother point of difference regarding

the checks is whether the check isrequired or permitted. Of the States thatallow criminal record checks, mostrequire the checks for some settings andpermit them in others. For example, oneState requires checks for school busdrivers and family day care workers, butpermits them for licensed day careworkers and for prospective adoptiveparents and youth workers.

— Types of crimeThe statutes also differ in the types of

crimes that the check is to focus on.About one-third of the States focus onviolent crimes and/or sex offenses, and anumber of States include child abuse orneglect crimes, while some add drugoffenses. About one-half of the Stateslook at all crimes.

— Effect on employmentAnother point of variance is whether

the statutes require that the existence of acriminal record bars employment. About40 percent provide that whetheremployment is barred depends upon thetype of crime involved and the positionwhich the person is seeking. Another 30percent state that the criminal record is tobe a factor. Less than one-quarter statethat a criminal record is an outright barto employment.

— Fingerprint submissionsThe last point of variance is whether

fingerprints are required to be submitted.As you know, Federal checks require thesubject’s fingerprints. For State checks,there is a fairly even split as to whetheror not fingerprints are required.

ConclusionsGiven the lack of uniformity to the

laws, there can be few overallconclusions. Because many of thecriminal record check laws are of fairlyrecent vintage, there clearly is a trendtoward authorizing these checks. Giventhe numerous ways in which the lawsvary, it is also clear that States havemade, and may continue to make, verydifferent judgments as to when and aboutwhom these checks must, or may bemade.

In determining whether to permit orrequire criminal record checks,competing policy considerations oftencome into play — the tremendous desireto protect children from out-of-homechild abuse, the desire to enableconvicted persons to rehabilitatethemselves, and privacy considerations.


CRIMINAL RECORD CHECK STATUTES:SOME POINTS OF VARIANCE

1. State and/or Federal Check

2. Work Settings

3. Types of Workers

4. Criminal Check Required or Permitted

5. Types of Crimes of Interest

6. If/When Criminal Record is a Bar to Employment

7. Fingerprints Required?

Figure 1: Points of variance in criminal record check statuteswhich allow screening of child care workers

CRIMINAL RECORD CHECK STATUTES:FREQUENTLY COVERED WORK SETTINGS

1. Day Care

2. Foster and Adoptive Homes

3. Schools

4. Social Service/Welfare Agencies

5. School Bus/Transportation Services

6. Juvenile Detention/Residential Facilities

7. Supervisory/Disciplinary Power Over Child

Other Settings: youth organizations, youth camps,public recreation or youth programs

Figure 2: Frequently covered work settings in criminal record check statuteswhich allow screening of child care workers


Report on national study of existing screening practicesby child care organizations

KIMBERLY DENNISResearch Associate

American Bar Association Center on Children and the Law

My presentation switches thediscussion from the legislative nature ofthe National Child Protection Act to itspractical application and focuses oncurrent screening practices, as indicatedby the preliminary findings from anational survey conducted by theAmerican Bar Association Center onChildren and the Law.1

Before I discuss this study, I thoughtit might be useful to first provide ageneral overview of some of the majorissues concerning criminal recordchecks, and then follow with a discussionof the preliminary findings as they relateto some of these broader issues.

Record check issuesAs evidenced by the passage of the

National Child Protection Act and solidturnout here today, there is currently astrong movement toward an interest inusing criminal record checks as part ofthe hiring and selection process foremployees and volunteers who workwith children.

The use of criminal record checks isnot without limitations, and it is fromthis vantage point that I would like tobegin. While the Act seeks to rectify anumber of the major problems andcriticisms that have been identified withrecord checks, I think it is useful tobriefly address these, keeping in mindhow these problems are going to affectchild- and youth-serving organizations inparticular.

I want to very quickly run through theproblems of criminal record checks for

1 A final report containing the results of thesurvey was scheduled to be issued in July1994.

employment or volunteer screeningpurposes: their relevance and usefulness(the likelihood of obtaining a “hit”); dataquality issues; timeliness; and cost.

— EffectivenessFirst, how effective are criminal

record checks in identifying individualsunsuitable to work with children?Although there are over 53 millionrecords on file with the FBI and theStates, the likelihood that one of thoserecords belongs to a child abuser is slim.In fact, the likelihood of obtaining arecord hit of any kind on any individualis often less than 1 percent andsometimes is just above 5 percent.

The important thing to keep in mindwhen you are contemplating hit rates isthat even if a hit does come back, theprobability that the criminal historyrecord is going to contain a child abuseor child-specific offense is very rare .Overall, low hit rates can be attributed tothe fact that child abusers are hardly everdetected to begin with. If they aredetected, they are not necessarilyarrested. And if tried, convictions areoften difficult to come by, or theindividual may plead to a lesser,unrelated offense.

— Data qualityThe second commonly cited problem

has to do with the quality of criminalhistory data. As was discussed earlier atthis conference, less than optimal qualityis due to the lack of final dispositioninformation. It is important to realize thatthis also extends to the problem ofbacklogs in simply entering records intothe computer systems, both at the Stateand Federal levels.


— TimelinessThird is timeliness. The lengthy

turnaround time in receiving criminalhistory information is especiallyproblematic with FBI and Statefingerprint checks, the results of whichmay take 6 to 8 weeks to reachorganizations. State name-based andlocal police checks are often muchquicker, ranging from several days to aslong as 2 to 3 weeks. Timeliness withrespect to child care and youth-servingorganizations is of special concern,because they often have an immediateneed for staff, or a high volume ofseasonal or part-time employees. Take,for example, a youth summer camp: Thecamp may have a hundred counselors onwhich it needs to do the checks veryquickly, yet it is not going to do muchgood if the summer is already halfwayover when the FBI results come back.One other concern for the child care andyouth-serving organizations is that theyoften have a high turnover rate amongtheir employees — as high as 40 to 50percent in some fields.

— FeesThe fourth common problem relates

to the fees. It now costs $24 to do an FBIcheck, and State checks may range fromno-cost to about $27, depending onwhether it is name- or fingerprint-based.

I want to put this cost issue inperspective. Figure 1 provides selectedestimates of the number of adults thatcome into contact with children invarious settings. By no means is this listexhaustive. I picked a couple of thesettings where we know there are a largenumber of adults. There are almost 35million employees and volunteers in justthese settings alone. If you take theextreme and assume that you are doingan FBI check at $24 a shot, it is going tocost about $840 million to conductchecks on all these individuals. I knowthat is an extreme case, but it is reallypresented just to provide an idea of howthe costs can add up. These numbers alsoprovide an indication of potential

demand on the States and at the Federallevel.

Policy issuesAs with any issue, there are

advantages and disadvantages to weighwhen implementing policy. I am going tobegin with some of the disadvantages ofcriminal record checks, which areoutlined in Figure 2.

— Disadvantages of record checksFirst and foremost, critics say that

criminal record checks create a falsesense of security; that is, they oftenfoster complacency and over-confidencein the selection of adults who work withchildren. By creating this false sense ofsecurity, organizations may neglect toconduct additional, perhaps moreilluminating, screening, such asextensive interviews of persons orreference checks.

The second criticism involvesadministrative and proceduralcomplaints, which can range fromincreased bureaucracy and red tape, tosecuring adequate financial and humanresources to conduct the checks.

The third critique extends to issues offairness and privacy. Our society has aninherent belief that individuals deserve asecond chance or that they can berehabilitated. Unfortunately, this is oftenin direct conflict with our desire toprotect children. Some opponents ofrecord dissemination seek to blockaccess to these records because they fearthat employers will not use theinformation appropriately, resulting indiscrimination. In fact, many argue thatcriminal record checks have an adverseimpact on low-income persons, African-Americans or other minorities whoaccount for a disproportionate share ofthose with criminal records.

— Advantages of record checksWhy conduct criminal record checks?

There are two primary advantages, asshown in Figure 2. First, identifying evenone offender may save hundreds ofchildren, given the repetitive nature ofchild abuse. Second, by conductingchecks, we are deterring individuals from

applying to positions where they cangain access to children. The one problemwith the latter argument is that it assumesthere is, in fact, a record to be found.

The one additional advantage I wantto point out is that conducting suchrecord checks sends a message toindividuals that the organization will nottolerate abusive behavior and that it is, infact, taking an active stand to preventabuse within the organization.

Preliminary survey findingsI want to turn now to the national

survey of screening practices that we areconducting. First, I want to provide somegeneral information about the survey,and then share some of the preliminaryfindings as they relate to some of theissues that I have just discussed.

Today we have been talking aboutscreening — primarily under the guise ofcriminal record checks. While that is, infact, the focus of this conference, thereare a host of other screening practicesthat can be used by child care and youthserving organizations. Figure 3 illustratesthe existing screening mechanisms. Theyrange from the basic screening ofreference checks and interviews, to thecriminal record checks, and to othermethods such as drug or psychologicaltesting.

Our survey was sent out toapproximately 3,800 various youthserving organizations, and we coveredcategories such as day care centers,youth development organizations, publicschool districts, private schools, fostercare agencies, juvenile-detention andcorrectional facilities, and hospitals andpsychiatric facilities that serve childrenand youth. Our overall response rate wasapproximately 46 percent, with widefluctuation among groups. At least 60percent of youth developmentorganizations and juvenile facilitiesresponded, while only about one-third ofhospitals and private schools chose toanswer. Sample selection was designedto be as representative of the nationalpicture as possible and proportionate tothe number of children served.

The survey instrument inquired notonly about the types of screening used,


but also about how they may differbetween employees and volunteers, andhow effective organizations considersuch practices in weeding out unsuitableapplicants. We also inquired about thecost and time associated with screening,and whether the organizationexperienced any allegations of abuseinvolving employees and volunteers.

— Frequency of screeningOur respondents were asked about the

frequency with which they used some ofthe various screening practices. Asshown in the graph in Figure 4, just lessthan one-half (45 percent) choose toconduct State criminal record checks onemployees, while approximately one-fourth conduct State checks onvolunteers. The numbers drop off for thelocal criminal record checks, and thendecline even further for the FBI checks,where 26 percent of respondents say thatthey use them on employees and 11percent conduct them on volunteers.

I added one additional screeningpractice for your information. Over one-third (35 percent) will check employeesagainst the State Central Child AbuseRegistry, which contains the civil — notcriminal — cases of child abuse.

In breaking down the use of criminalrecord checks by type of youth-servingorganization, at least 50 percent or moreof all the groups, with the exception ofprivate schools, say that they conductrecord checks on potential and/or currentemployees. Juvenile detention andcorrectional facilities are at the high end— overall, 97 percent said they usecriminal record checks on employees.

— Employee/volunteer screeningFigure 5 provides a breakdown

between the employees and thevolunteers. For certain types oforganizations, the differences aresignificant. For example, about two-thirds of day care centers will conductthe checks on employees, but less thanone-half of those surveyed subjectvolunteers to such checks. Foster care ispretty consistent between the employeesand providers, and then it dropssomewhat for their volunteers.

This is a continuation with the othersettings. Figure 6 shows that the disparitybetween employees and volunteers iseven greater for public school districtsand private schools. You can see thatabout 30 percent less will conduct checkson volunteers versus employees. Andwhile three-fourths of hospitals use acriminal record check on employees,only 28 percent do so for volunteers.

— Record check problemsWe asked our respondents to tell us

about any of the problems that theyexperienced as a result of their efforts toscreen using criminal record checks. Thegood news is that many indicated thatthey experienced few problems at all.However, timeliness, both in conductingthe criminal record screening process asa whole and in receiving the actualinformation, were cited as the primarydifficulties. Certain types oforganizations — public school districts,youth development organizations andfoster care agencies — did reportexperiencing more problems than others.

As Figure 7 indicates, over half (51percent) said that information is notprovided on a timely basis. According toour respondents, their average wait for anFBI check was about 49 days, which ispretty consistent with what the literaturesays and what we know. Their averagewait for State checks ranged from 27 to29 days, and for local checks it was ninedays.

The second problem cited by 45percent of our respondents — and alsorelated to the first — is that the process istoo time-consuming, often creatingdelays in hiring for these organizations.And while, overall, less than one-third(30 percent) noted that information isinadequate to make a decision, meaningthat it is either sometimes incomplete orit lacks detail for them to make ajudgment, the majority of hospitals,youth development organizations andfoster care agencies indicated this was aproblem.

On a more positive note, a strongmajority (82 percent) did not experienceproblems with unsuitable applicants notbeing identified (see Figure 8). And no

more than a quarter indicated that costsor personnel time associated withconducting the checks was a problem. Infact, aside from the processing fees, onlyabout 10 percent indicated that theyincurred any additional expensesassociated with criminal record checks.This would include hiring special staff orproviding training or workshops toinstruct people how to do checks.

— Effectiveness, usefulnessOur respondents were also asked that

of those screening mechanisms theyused, what do they perceive to be themost effective in identifying individualswho are unsuitable to work with childrenand youth (see Figure 9). A full 85percent of our respondents — whetherthey use criminal record checks or not —selected reference checks with pastemployers as their most useful practice,while 74 percent pointed to the personalinterviews. State records checks werecited by just under half, 47 percent,followed by personal reference checksand on-the-job observation (both 44percent).

What is it the organizations feelwould help them to more effectivelyscreen employees and volunteers? Weprovided a list of 16 items and askedrespondents to select their top fiverecommendations:(1) Over half (58 percent)

recommended the development of anational registry of child-abusers,specifically for employment andvolunteer-screening purposes.

(2) Fifty-five percent would liketraining on what backgroundscreening techniques are availableand how to properly use them.

(3) Forty-nine percent would welcometraining on how to identifypotentially abusive staff.

(4) Forty-four percent would like to seeimplementation of a morecentralized way to conduct criminalrecord checks.

(5) Forty percent recommendedincreased access to criminal historyand other relevant information.

Finally, when we asked how useful itwould be to access a National Registry of


Child Abusers for screening purposes,less than half (46 percent) felt that accessto such a registry would be very useful,while 30 percent indicated that such aregistry would only be somewhat usefulfor their screening purposes.

At this point, I want to reiterate thatthese are preliminary findings, and so Icaution anyone against making definitiveconclusions using these numbers. Asalready mentioned, our final report willbe out this summer, which will provide amore detailed analysis.

In conclusion, we hope this discussionhas been informative and has helped toplaced the use of criminal record checksfor child care and youth servingorganizations in the larger context of themany screening practices that areavailable to help keep children safe.


Current child abuse crime reporting: A State experience

DAVID EBERDTDirector

Arkansas Crime Information Center

My remarks will be in the area ofchild care facility licensing legislation,specifically an overview of the Arkansaslaw that requires fingerprint-basedbackground checks for licensed childcare facilities, their owners, operatorsand employees.1 My discussion focusesspecifically on child care facilities, noton any other area like the Boy Scouts,Girl Scouts or teachers.

In Arkansas, my agency is responsiblefor the automated criminal history file.We are the National Crime InformationCenter control terminal agency, theprimary contact in Arkansas with theInterstate Identification Index. Becauseof that, the staff of the Arkansas ChildCare Facility Licensing Board came to usa couple of years ago and asked whatthey needed to do in order to conductnational criminal history checks onemployees and owners of child carefacilities. We outlined, generally, ourunderstanding of what was required then:that it would take a State law to authorizethe checks, that the checks would need tobe fingerprint-based, and that the lawwould have to be approved by the U.S.Attorney General.

Following that meeting, we did nothear from them for almost 2 years. Thenlast spring, near the end of the 1993session of our legislature, we were askedto look at and comment upon a bill thatthis licensing board had introduced. Welooked at it, made a few comments, andsent a copy to the FBI attorneys for anunofficial review. They also made a fewcomments. With those, a few minoramendments were put on the bill, and it

1 The text of this law, Arkansas CodeAnnotated §§20-78-601 to 604 (1993), isincluded in this report as Appendix 12.

was approved by the State Legislatureand signed into law in April 1993.

Arkansas child carerecords checks law

The law requires “each applicant for alicense to operate a child care facility”and “anyone seeking employment in achild care facility” to be checked throughthe State Identification Bureau and havea national check conducted through theFBI. The check must be based onfingerprints, and the results of the checkwill be forwarded back to the Child CareFacilities Review Board, a State agency.The operators of the child care facilitiesare required to maintain evidence that thechecks were made, and the fingerprintcards are to be destroyed by the StateIdentification Bureau following thecheck.

The bill sets out 17 specific criminaloffenses, and a conviction on any ofthose disqualifies the person from beingan owner, operator or employee in achild care facility. After the bill wassigned into law, we submitted a copy tothe FBI; it was approved subsequently bythe U.S. Attorney General to enable us toaccess the national system in order toconduct these checks.

Soon after the bill was signed, astatewide newspaper ran a story on it,and the phone calls and questions beganto flood in. Initially, there were a lot ofquestions regarding the fee because, upuntil that point, the checks that had beendone (not based on any Staterequirement) were done at no charge bythe Identification Bureau. But underanother law approved during the 1993session, a fee was authorized fornoncriminal justice record checks.Because of that, there were rumors it was


going to cost $100 for every check,including the FBI check.

Since our legislature had alreadyadjourned, a legislative interimcommittee called a hearing to look intothis law that they had just passed. A lotof misinformation about it was corrected,and the question of the fee ($15 for theState check and $24 for the FBI check)was a little more palatable. Still, therewas a lot of concern as to who was goingto pay it — the facility owners or theapplicant employees.

The legislation was somewhat unclearin several areas, and some questionswere submitted to our State AttorneyGeneral for opinion. Here are just a fewof them:• Who has to be checked when a license

is renewed each 2 years, if the ownerof the facility is a corporation, aschool or a church?

• Must these licensees be checked every2 years when they renew theirlicense?

• Who must be checked “when seekingemployment” (the words in the bill)— all applicants or only thesuccessful applicants?

• Are volunteer employees required tobe checked? What about bus drivers,nurses, janitorial personnel, and soforth?

• Are existing employees to be checked,since the language in the bill specifiedonly those seeking employment?

Attorney General opinionThe State Attorney General, Winston

Bryant, released an opinion in November1993 pointing out that the Child CareFacilities Review Board had authority toissue regulations, and those regulationscould deal with a lot of these questions.2

Those regulations should indicate who isto be checked when the licensed owner isa corporation, a school or a church. TheAttorney General also said backgroundchecks must be done every time a licenseis issued (every 2 years) because it isactually a reapplication , not a renewal.

On the question about whichapplicants must be checked, the Attorney

2 Opinion No. 93-324.

General said “seeking employment”means receiving a conditional offer ofemployment, subject to the check, anddoes not refer to everyone who appliesfor a position.

On the question of unpaid employees,there is extensive wording in the opinionregarding volunteers. The AttorneyGeneral’s opinion states, “The fact thatthey [the volunteers] are ‘not paid’ doesnot mean that they are not employees”within the intent of the legislation.Rather, it is more determined by thedegree of control that the employer hasover the activities of the unpaid workers.The opinion then discussed the amountof contact and control that volunteersmay have over the children. But theconclusion was that the regulations couldrequire background checks for unpaidworkers.

Finally, the Attorney Generalindicated that current or existingemployees in child care facilities are notrequired to submit to background checks,since the wording in the law specificallystates that the checks are to be done onthose seeking employment.

For various reasons, including thedelay by the legislative committees andwaiting for the Attorney General’sopinion, the regulations have not yetbeen issued by this licensing board.Criminal history checks are being madein many cases, but not in all cases.

Remaining issuesA number of issues remain, including

where and when and by whomfingerprints are to be taken, and so forth.I thought it was interesting (andsomewhat of a surprise to me) that thereare over 2,000 licensed child carefacilities in our relatively small State, sothe numbers nationally, I am sure, aregoing to be staggering.

Ours is certainly not a complex pieceof legislation, but it turned out to be a lotmore involved than anyone thought whenit was proposed. There are plans toamend the bill in January 1995, and I amsure that parts of it will be changed. I donot think that the main thrust will bechanged that much, but certainly thereare questions about it right now (such as

whether existing employees should bechecked, and whether it is a good idea tohave a specific list of offenses thatdisqualify people).

It is important to point out that if yourState does not already have such a lawand you want one, or you will be draftingone, or you will be involved in any wayin the input — it will require a Statestatute. It will have to be (or should be) afingerprint-based check, and the lawmust be approved by the U.S. AttorneyGeneral. Other than that, the particularswill be unique to the various States.


Grant agency perspective

Grant agency perspective on implementation of theBrady and National Child Protection Acts

Lawrence A. Greenfeld


Grant agency perspective on implementation of theBrady and National Child Protection Acts

LAWRENCE A. GREENFELDActing Director, Bureau of Justice Statistics


On behalf of the staff at the Bureau ofJustice Statistics (BJS), I am delighted tobe here to both sponsor and participate inthis conference, which focused on theimplementation of the Brady andNational Child Protection Acts and onimproving criminal history records.Improving the quality and usefulness ofrecords has been a principal goal of BJSfor the last 20 years. This is the sixthmajor national conference we havesponsored over the course of the years,and we have sponsored numeroustraining meetings on every topic fromauditing records to privacy concerns.Over these two decades, BJS hasgenerated literally dozens of reports andmaterials to help move the improvementof criminal history records to become amore prominent and visible concern toeveryone, regardless of whether theywork in the criminal justice system.

No one should ever doubt theimportance of our concern aboutcomplete, accurate and accessiblerecords. For example:• In a BJS follow-up study of a sample

representing 109,000 offendersreleased from prisons in 11 States, welearned how mobile criminals couldbe. About 31 percent had arrests inStates other than the States in whichthey had served time. Together, these109,000 offenders compiled 1.6million fingerprintable arrest chargesboth before their imprisonment andwithin 3 years afterward.

• A BJS survey carried out in Stateprisons nationwide revealed that about4 percent of the U.S. prisonpopulation were non-U.S. citizens andthat nearly 80 percent of these aliens

were serving time for violent or drugcrimes.1

• That same BJS prisoner surveyrevealed that one in five prisonersserving time for violence hadcommitted their crime against a child,and that nearly eight in 10 of theseoffenders had raped or sexuallyassaulted the child-victim.

• About 43 percent of prisoners saidthey had owned or possessed afirearm; of these, three out of fourowned or possessed a handgun andone in five had owned or possessed amilitary weapon such as an Uzi, AK-47, AR-15 or M-16. While about onein six prisoners admitted to carrying afirearm during the crime theycommitted, for 82 percent of thesearmed offenders, the weapon was ahandgun and, for more than one-quarter of them, the handgun wasobtained from a retail outlet such as agun shop, pawn shop, flea market orgun show. About one-quarter of allprisoners said that in the past, beforethe current offense which broughtthem to prison, they had used a gun tocommit a crime.

Handguns and murderOne useful way to look at the

importance of the criminal history recordand a record check at the time of ahandgun purchase is by looking atimprisoned murderers and theirdescription of their offense and the

1 U.S. Department of Justice, Office ofJustice Programs, Bureau of Justice Statistics,Survey of State Prison Inmates, 1991, byAllen Beck, et. al. (Washington, D.C.:Government Printing Office) March 1993.


source for their weapons. In 1991, BJSinterviewed a nationally representativesample of State prisoners drawn torepresent those offenders who had beenconvicted of murder or non-negligentmanslaughter.2 Here is what we found:• About 44 percent of these murderers

said they had used a handgun duringthe commission of the murder.

• About 52 percent of the handgunmurderers had a prior adult record ofconvictions for crimes.

• About 17 percent of the handgunmurderers said they had purchased thehandguns at a retail outlet.Combining these characteristics,

about 6 percent of murderers interviewedwere recidivist offenders who purchasedthe handgun which they used in theircrime at a retail outlet. About the samenumber — 6 percent — were first-timeoffenders who purchased their handgunsat a retail outlet. In other words, about athird of those murderers who usedhandguns acquired their weapons in aretail outlet and half of these had a prioradult record of convictions.

Today there are about 89,000 Stateprisoners currently serving time formurder. Of these, about 11,000purchased their handgun in a retail outletand an estimated 5,500-6,000 had anadult criminal conviction record at thetime of the handgun purchase. Sinceabout 15 percent of murderers reportedtwo or more victims, the number ofmurdered and injured victims issomewhat higher than the number ofoffenders.

We may be able to “guesstimate” thatthe current cohort of murderers (thosewho are repeat offenders and who used ahandgun which they had purchased at aretail outlet) may account for about 6,000or more victims. It is somewhat moredifficult to estimate the size of the victimpool affected by the other 302,000violent offenders currently in Stateprisons. What is amazing, however, isthat about half of those offenders whocarried a handgun during their crimereport that they discharged the firearm

2 Ibid, pp. 18-19.

during the offense.3 (This includes allcrimes whether they were violent or not.)Researchers with the VirginiaDepartment of Criminal Justice Servicesachieved nearly identical estimates in asurvey they recently conducted amongState prisoners — half of the prisonerswho carried a gun during their crimefired their weapon during the crime.

Data from the FBI Uniform CrimeReports indicate that the number offirearms crimes is growing. In 1987,there were an estimated 366,000murders, robberies and aggravatedassaults with firearms.4 In 1992, the FBIdata indicate a 55 percent increase in thenumber of these crimes involvingfirearms, reaching about 566,000incidents reported to law enforcementagencies.5 In 1991, The National CrimeVictimization Survey showed that about600,000 violent incidents occurred thatyear involving handguns.6

Improving criminal history recordsBJS is very excited about the Brady

and National Child Protection Acts. Bothgive new and important visibility to whatis among the most important challengesfacing the infrastructure of the criminaljustice system — how to keep accurateand timely records of criminal justicetransactions and make those recordsavailable for not only justice systempurposes but also for noncriminal justicepurposes as well.

3 Thirteen percent of all prisoners reportedcarrying a handgun during the commission oftheir crime; of these, 6 percent report thatthey discharged the handgun. Ibid, p. 19.4 U.S. Department of Justice, FederalBureau of Investigation, Crime in the UnitedStates, 1987, Uniform Crime Reports,(Washington, D.C.: Government PrintingOffice, July 10, 1988).5 U.S. Department of Justice, FederalBureau of Investigation, Crime in the UnitedStates, 1992, Uniform Crime Reports,(Washington, D.C.: Government PrintingOffice, October 3, 1993).6 U.S. Department of Justice, Office ofJustice Programs, Bureau of Justice Statistics,National Crime Victimization Survey, 1991,(Washington, D.C.: Government PrintingOffice, 1992).

As most of you probably know, BJShas undertaken two major efforts inrecent years: the Criminal HistoryRecord Improvement Program, a 3-year,$27 million program to fund Stateprojects to improve the quality ofcriminal history records; and in 1992, anationwide survey of State criminalhistory record repositories to assess thequality of their criminal history recordinformation, to determine theaccessibility of the information, and toexamine the extent and frequency of dataquality audit activity.7

— Timetable surveyWe are about to undertake a new

survey of State criminal history recordsystems to estimate the time required foreach State to fully implement theNational Instant Criminal BackgroundCheck System required under the BradyAct and for each State to meet the recordquality expectations of the NationalChild Protection Act. It is highly likelythat when Congress completes theappropriations for the new assistanceprograms to continue the upgrading ofcriminal history records, it will be thesingle largest Federal shot-in-the-armever for records. The grant programswhich accompany the Brady andNational Child Protection Acts will helpmove us along toward better linkage ofarrests and dispositions and will fostergreater shareability of records throughthe Interstate Identification Index (III)program.

As mentioned, the first stage of thiseffort and one which we are in theprocess of funding and fielding is asurvey of the steps needed in each Stateto ensure participation in III and morecomplete disposition reporting and theability to detect child-victim crimes.Both Acts stipulate that those Stateswhich have less-developed records

7 This survey was published in 1993. U.S.Department of Justice, Office of JusticePrograms, Bureau of Justice Statistics, Surveyof Criminal History Information Systems,1992, by Sheila J. Barton, SEARCH Group,Inc. (Washington, D.C.: Government PrintingOffice, November 1993).


systems will receive the most immediatefunding priority. The accurate and timelycompletion of this timetable survey istherefore a critical element toestablishing the foundation for thesubsequent assistance programs. Wehave asked SEARCH to conduct thesurvey and we are currently in the finalstages of working through the conceptswhich will underlie a full grantapplication.

— 1992 survey findingsThe previous State survey, conducted

in 1992, will serve as the basis for muchof the new survey. That survey revealedthat although three out of four criminalhistory records are now automated, thereis still a long way to go in terms ofobtaining disposition information andmaking records available through III.8

Some of the most important pointsfound in the 1992 survey were:• Forty-eight States have a Master

Name Index and most of these (40)are automated.

• The Nation’s repositories hold 47.3million criminal history records andan estimated 77 percent (36.4 million)are in automated form.

• The number of records is growing byan average of 2 million annually.

• Sixteen States could not report thepercentage of arrests withdispositions.

• Only 33 States could report thenumber of arrest dispositions receivedin 1992.

• Eleven States reported that at least 80percent of the arrests in the preceding5 years contained dispositioninformation; 12 States reported 60percent-79 percent completeness; 11reported that 40 percent-59 percent ofrecords were complete; and 19 Statesreported lower levels of completenessor that they did not know howcomplete their records were.

• Twenty-three States do not requirenotification to the repository if anarrestee is not subsequently charged.

• Only 12 States systematically notifythe repository of prosecutor

8 Ibid.

declinations and most do not know orreport low percentages of cases inwhich nonconvictions followingsummonses are reported to therepository.

• Only 15 States routinely receiveprobation admissions and releases and21 received parole admissions andreleases for entry into the criminalhistory record.

• States reported wide disparities in thetime required to receive and postentries to records ranging up to 2 to 3years and many do not know howlong the process requires.

• About half the States have audited thequality and completeness of theirrecord-holdings in the past 5 years.

• Only nine of 24 States make at least80 percent of their criminal historyfiles available to the III, which will bethe primary vehicle for sharing suchrecords across jurisdictions.

• Nineteen States report firearmspresale records checks and 15 Statespermit the sharing of such informationwith firearms dealers.With respect to the Child Protection

Act, we have little data that tell us howmany jurisdictions could identify aperson with prior convictions forviolence against children. Identifyingthose who have such histories may bedifficult, if not impossible, in mostcurrent record systems. Practicallyspeaking, however, it is unlikely that achild-care job applicant who has ahistory of rape convictions or convictionsfor other violent acts would be clearedfor the job, regardless of whether the ageof the prior victims was known. Thisdoes not mean that flagging the recordsof violent predators who prey onvulnerable victims can be avoided. In thecoming years, we will probably seeincreasing interest among legislativebodies at all levels of government tobroaden the range of record checks. Mostimportantly, the Child Protection Actdefines a quality standard for recordswhich commonsensibly helps State andlocal records administrators argue formore and better resources.

Grant programsThe grant programs which accompany

the Brady and National Child ProtectionActs will do much to strengthen theinformation base of justice systemdecisionmakers. It is disturbing howoften important public safety decisionsare made without apparently adequateinformation. A recent BJS study ofpretrial release practices in the 75 largestcounties nationwide illustrates whatsurely must be a reflection of inadequateinformation: among felony defendantsreleased pending trial, about 20 percentwere rearrested while on release and, ofthese, two-thirds were re-released.9

The recent $27 million CriminalHistory Record Improvement Programreveals the types of activities of highestpriority: 41 States placed an emphasis onimproving disposition reporting, 25States emphasized identifying felons byflagging records, 18 States directed theFederal funds to III participation, and 15States wanted to reduce backlogs andlessen the time required to posttransactions to records. I would expectthat the new grant programs in fiscal1995 will build on these activities withan additional emphasis, due to theNational Child Protection Act, onimproved and more rapid and efficientfingerprint-based record checks. Somejurisdictions may seek to use the Federalfunds to leverage their entry intoAutomated Fingerprint IdentificationSystem (AFIS) technology, for example.

The new grant program, for which theAdministration is requesting $100million, will build on the goals andobjectives of the earlier Criminal HistoryRecord Improvement Program. Anobvious priority of the program will be tofocus Federal funding assistance on thosearrest and other transactions which are ofthe most recent vintage, say the last 5

9 U.S. Department of Justice, Office ofJustice Programs, Bureau of Justice Statistics,National Pretrial Reporting Program,Pretrial Release of Felony Defendants, 1990,Bureau of Justice Statistics Bulletin Series(Washington, D.C.: Government PrintingOffice, November 1992) p. 2.


years, with much less priority given torecords which have not had transactionsin many years. In addition, priorityprobably will be given to thoseapplications which involve reducingsubstantial backlogs of new records orposting new transactions to old recordsor implementing procedures to avoidfuture backlogs.

— Eligible funding activitiesAmong the types of activities which

would be eligible for funding presumablywill be:• Efforts to flag felony and child-victim

convictions in criminal historyrecords;

• Efforts to improve reporting to thecentral repository of all arrests,dispositions and other relevantinformation;

• Initiating, automating or expandingMaster Name Indexes;

• Automating records, particularlyrecords with recent arrest transactions,and reducing the time required to postall transactions to records;

• Designing, developing orimplementing procedures to ensureparticipation in III;

• Developing or acquiring technologiesto permit the electronic interchange ofdata (for example, from courts to theState repository);

• Implementing procedures or softwareto monitor missing arrests anddispositions, missing fingerprintcards, and so on, and to notifyjurisdictions of their need to submitmissing information and for lettingthem know exactly what is missing;

• Efforts to move toward the expandeduse of AFIS technologies that areconsistent with FBI technologies; and

• Efforts to link National Incident-Based Reporting System data withcriminal history record informationusing a unique, fingerprint-supportednumber.The types of activities which would

probably not be eligible to receivefunding would be wholesale replacementof hardware and software or systemscurrently in use, extensive planning, orconversion of old manual records to a

machine-readable format. If you had topin me down, the three most importantthings to do would be (1) to gainparticipation in III, (2) to improve thecoverage of disposition reporting and thelinkage to arrest transactions, and (3) toput in place a set of procedures toimprove timeliness in posting entries tothe records and ensuring that missingdata are monitored, identified, soughtand recorded.

Other recordkeeping activitiesThere are other recordkeeping needs

which we will need to devote greaterattention to in the future and which couldperhaps be pushed along with Federalfunds. Accessible databases on illegalaliens, persons with histories ofcommitments for mental problems ordrug addiction, and the other prohibitedcategories of firearms purchasers underthe 1968 Gun Control Act will need to bedeveloped, but these are probably lowerpriorities at the moment.

One area that has always been of greatconcern to me as a former probationofficer who used rap sheets to preparepresentence reports, is that the rap sheetis simply a record of criminal justicetransactions — it is not a record of thepublic safety consequences of a person’scriminal conduct. For example, rapsheets tell us nothing about the numberof victims injured over a criminal careeror whether and what types of firearmsmay have been used in crimes, the valueof property stolen or damaged, the ageand vulnerabilities of victims, and soforth. The FBI’s National Incident-BasedReporting System, which I expect willcover 40 percent of the U.S. populationby the end of 1994 and which willeventually replace aggregate UniformCrime Reporting statistics, offers apotentially golden opportunity to cross-walk between a criminal record and anincident record with perhaps a change assimple as the addition of the Stateidentification number of the arrestee tothe incident record. It would permit thecriminal record to grow into a record ofcommunity victimization.

I look forward to working with eachand every State as we move forward

toward this new program during thecoming fiscal year. The timetable surveywhich we will be implementing shortly isdependent upon State involvement inorder to measure what needs to be doneand how the available resources are to beallocated. I am sorry to say that it willrequire a rather short turn-around but Iam hopeful that it will not be excessivelyburdensome.

I believe that the 20-year record ofBJS financial and technical assistance,the FBI’s strong commitment to thedevelopment of a national system ofaccurate and shareable records, and theskill and devotion of State and localinformation managers represents apartnership that benefits every citizen.The Brady Act and the National ChildProtection Act enable this partnership togain the kind of visibility and importancethat all of us have known for many yearswas sorely needed. These fresh newresources, when they become available,will create new opportunities to expandand strengthen the partnership.

Contributors’ biographies


Contributors’ Biographies

Robert R. BelairMr. Belair, SEARCH General

Counsel, is a partner with theWashington, D.C. law firm ofMullenholz, Brimsek and Belair. Theprincipal emphasis of Mr. Belair’spractice is privacy and information lawinvolving administrative, legislative andlitigation activity. His practice includescounseling in all aspects of privacy andinformation law; defamation; intellectualproperty, including software copyright;constitutional law; and criminal justiceadministration.

As General Counsel, Mr. Belair hasparticipated in SEARCH’s security andprivacy programs and has authored manystudies in the area of criminal justiceinformation law and policy. He wasactively involved in the development ofSEARCH’s revised standards of criminalhistory record information, TechnicalReport No. 13: Standards for theSecurity and Privacy of Criminal HistoryRecord Information (Third Edition).

Mr. Belair has served as consultant tonumerous Federal agencies andcommissions on information policy andlaw. He is former Deputy GeneralCounsel and Acting General Counsel ofthe Domestic Council Committee on theRight of Privacy, Office of the President.

Mr. Belair is a graduate of KalamazooCollege and the Columbia UniversitySchool of Law.

Robert J. CreightonMr. Creighton was recently appointed

to serve as the National Brady LawCoordinator for the Bureau of Alcohol,Tobacco and Firearms (ATF), U.S.Department of the Treasury. Prior to thisappointment, Mr. Creighton was SpecialAgent in Charge of the ATF FloridaField Division. In that position, hedirected the management of ATF’s lawenforcement activities in the State ofFlorida.

Mr. Creighton joined the ATF as aSpecial Agent in 1967 and has served inNew York, Boston, and New Haven and

Hartford, Connecticut. From 1977-80, hewas Resident Agent in Charge inHartford. In 1980, Mr. Creighton joinedthe staff of the Assistant Director of LawEnforcement as an Operations Officer inthe Explosives Enforcement Branch,coordinating the reorganization anddevelopment of ATF’s NationalResponse Teams. From 1981 to February1983, he served as Special Agent inCharge of ATF’s ExplosivesEnforcement Branch. In this position, hewas responsible for managing theNational Explosives and ArsonEnforcement Programs. He coordinatedATF’s role in training programs in theDepartments of Justice and Treasury, andin State and local law enforcementagencies.

Mr. Creighton serves on the Board ofDirectors of Youth Crime Watch ofAmerica, the Metro-Dade ChiefsAssociation and the Florida AdvisoryCommittee for Arson Prevention. He isalso a member of the InternationalAssociation of Chiefs of Police, theFlorida State Chiefs of PoliceAssociation, the InternationalAssociation of Bomb Technicians andInvestigators, and the InternationalAssociation of Arson Investigators.

A graduate of the University ofConnecticut, Mr. Creighton also hasattended graduate school at theUniversity of California, Berkeley, andthe University of New Mexico.

Lt. Clifford W. DaimlerLt. Daimler has been Director of the

Oregon State Police, IdentificationServices Section since 1991. Prior to thisassignment, he served as AssistantDirector for 7 years. He also served inthe Criminal Division for 8 years and inthe Patrol Division for 2 years.

Under the direction of Lt. Daimler,the Identification Services Section isresponsible for the following: the Statecomputerized criminal history file,firearms regulations, automatedfingerprint identification system,

regulatory background checks, forensiclatent print laboratory, questioneddocument examination and forensicphotography laboratory. Lt. Daimler wasinstrumental in implementing Oregon’shandgun regulation laws that went intoeffect in 1990.

Lt. Daimler is a Central Site Memberof the Western Identification Networkand is the Chair of its Policy andProcedure Committee. He also isinvolved in numerous State and Federalcriminal justice organizations.

Noy S. DavisMs. Davis is a Project

Manager/Attorney at the American BarAssociation (ABA) Center on Childrenand the Law. She is currently working ontwo projects: the Effective Screening ofChild Care and Youth Service Workers,and the Program to IncreaseUnderstanding of Child SexualExploitation.

Ms. Davis received her JurisDoctorate from the University ofCalifornia Hastings College of Law in1984 and served as law clerk to the Hon.Howard Turrentine, U.S. District Courtfor the Southern District of California.Prior to working at the ABA Center onChildren and the Law, Ms. Davisrepresented children and their families incivil child abuse and neglect cases in theDistrict of Columbia. Since 1990, Ms.Davis has chaired the Child Advocacyand Protection Committee of the YoungLawyers Section of the Bar Associationof the District of Columbia. In 1992, shereceived the association’s Marvin E.Preis Award for outstanding committeechair of the year.

In addition to her J.D., Ms. Davis hasa B.A. in political science from theUniversity of California, Davis.

James X. DempseyMr. Dempsey is Assistant Counsel to

the U.S. House of Representatives’Judiciary Committee’s Subcommittee onCivil and Constitutional Rights, chaired


by Rep. Don Edwards (D-California).Mr. Dempsey’s areas of responsibilityinclude FBI oversight, privacy, and othercivil liberties and constitutional lawissues.

Prior to joining the Subcommitteestaff, Mr. Dempsey practiced with a lawfirm in Washington, D.C.

Kimberly DennisMs. Dennis is a Research Associate at

the American Bar Association (ABA)Center on Children and the Law. Shereceived her Master of PublicAdministration from the ColumbiaUniversity School of International andPublic Affairs in 1992.

Before joining the ABA, Ms. Dennishad extensive experience as a ResearchAssistant and Program Analyst on issuesincluding homelessness and substanceabuse. Her background includesmanaging a project to survey publicpolicy experts in New York Cityregarding necessary policy andmanagement changes for the City, aswell as conducting other significant fieldwork, data analysis, policy analysis andwriting for several nonprofitorganizations.

In addition to her M.P.A., Ms. Dennisholds a B.A. in sociology from theUniversity of California, Berkeley.

David EberdtMr. Eberdt is Director of the Arkansas

Crime Information Center (ACIC), aposition he has held since ACIC wasestablished in 1972. Under his direction,this State agency administers thecomputerized criminal justiceinformation system in Arkansas.

Mr. Eberdt is active in numerous Stateand national criminal justiceorganizations. He is currently serving hissecond term as President of the NationalLaw Enforcement TelecommunicationsSystem and is the Arkansas governor-appointee to SEARCH.

Before becoming Director of ACIC,Mr. Eberdt was a Circuit Court Reporterfrom 1962-71. Mr. Eberdt has abachelor’s degree in businessadministration from the University ofArkansas, Monticello.

Lawrence A. GreenfeldMr. Greenfeld is Acting Director of

the Bureau of Justice Statistics (BJS),U.S. Department of Justice. He hasserved in this position since early 1993.

Mr. Greenfeld previously served asthe agency’s Deputy Associate Directorand Chief of Correctional StatisticsPrograms. He also has served as aStatistician with BJS, a Social ScienceAnalyst with the National Institute ofJustice, a member of the technical staffof MITRE Corporation, a PlanningCoordinator for the MarylandGovernor’s Commission on LawEnforcement and the Administration ofJustice, and a probation officer.

Mr. Greenfeld has authored or co-authored more than 50 statisticalpublications and analyses coveringprobation, jails, prisons, parole, deathrow populations and juveniles incustody. He also has supervised thedevelopment and publication ofnumerous reports by BJS CorrectionsUnit staff and BJS statisticians. He hasauthored several chapters of books andserved as a reviewer for the Journal ofQuantitative Criminology. Mr. Greenfeldalso has overall responsibility forplanning, scheduling and editing thepublications produced annually by BJSin all areas of crime and criminal justice.

Mr. Greenfeld has spoken atnumerous conferences and meetings oncorrections and criminal justice. InJanuary 1993, he received the Peter P.Lejins Award for Research from theAmerican Correctional Association.

Mr. Greenfeld has a B.A. from theUniversity of Maryland with aspecialization in criminology. He alsoholds an M.S. degree from AmericanUniversity with a specialization incorrectional administration.

Rebecca L. HedlundMs. Hedlund is the Legislative Policy

Advisor to the Assistant Secretary of theTreasury for Enforcement, Ronald K.Noble. The Office of Enforcement at theTreasury Department oversees theCustoms Service; the Bureau of Alcohol,Tobacco and Firearms; the Secret

Service; the Financial CrimesEnforcement Network; the Federal LawEnforcement Training Center; and theOffice of Foreign Assets Control. Inaddition to being responsible for theOffice of Enforcement’s legislativepolicy, Ms. Hedlund is the key point ofcontact in the Office on firearms issues,including Brady Act implementation.

Prior to joining the TreasuryDepartment in October 1993, Ms.Hedlund worked on Capitol Hill for 11years. She was a professional staffmember of the now-defunct House SelectCommittee on Narcotics Abuse andControl. Her work at the Committeefocused on the international aspect of thedrug problem in source and transitcountries, including production,alternative development, moneylaundering, interdiction, intelligence,organized crime, gun smuggling anddrug abuse prevention.

Dr. Sally T. HillsmanIn October 1991, Dr. Hillsman

became the Vice President of Researchand Technical Services for the NationalCenter for State Courts (NCSC). Sheoversees all NCSC Federal grantproposals and national scope projects.Among other issues, these nationalinitiatives deal with caseflowmanagement for general civil, domesticrelations, felony, misdemeanor, drug,traffic, small claims and appellate cases;differentiated case management; and trialdelay and decisions. NCSC’s nationalprojects also focus on court applicationsof technology, including statewide andtrial court automation, as well as suchtopics as trial court accountability andperformance standards, humanmanagement, and racial and ethnic bias.

From 1979-91, Dr. Hillsman was theAssociate Director of the Vera Instituteof Justice in New York City and itsDirector of Research. She conductedresearch using experimental andnonexperimental designs in a wide rangeof criminal justice areas, includingintermediate sanctions, case processing,prosecution and court delay, pretrialdiversion and policing. Her past workincluded research on narcotics law


enforcement in New York City, theprovision of criminal defense services inthe New York criminal courts, and finingpractices in criminal cases in the UnitedStates and Western Europe.

Dr. Hillsman holds a Ph.D. insociology from Columbia University.

Kent MarkusMr. Markus is Counsel to the Deputy

Attorney General of the United States.His primary responsibility is tocoordinate all U.S. Department of Justice(DOJ) activity with respect to thelogistical, educational, technical, policyand communications aspects ofimplementing the Brady Act. In additionto coordinating internal DOJ activity,Mr. Markus also acts as the primary DOJliaison with other Federal agencies andwith the States with respect to Brady Actimplementation.

Prior to his service at the JusticeDepartment, Mr. Markus was the Chiefof Staff at the Democratic NationalCommittee and, before that, the Chief ofStaff for Ohio Attorney General LeeFisher. In each capacity, he had overallmanagement responsibility for thebudget, staff and operations of theinstitution.

Earlier in his career, Mr. Markusworked at law firms in Australia, Alaskaand Washington, D.C. before returningto Ohio to practice law and teach at theCleveland State Law School. On CapitolHill, Mr. Markus also worked for U.S.House Speakers Carl Albert and ThomasP. (Tip) O’Neill and House RulesCommittee Chairman Richard Bolling.

Mr. Markus is a graduate ofNorthwestern University and HarvardLaw School. He is also a graduate of theKennedy School of Government’sProgram for Senior Executives in Stateand Local Government.

Maj. James V. MartinMaj. Martin is Director of the

Criminal Justice Information andCommunications System, South CarolinaLaw Enforcement Division, which is theState’s central repository for criminalhistory records. It also consists of theUniform Crime Reporting unit and the

Criminal Justice Data Center andIntrastate Network.

Maj. Martin currently serves on theNational Crime Information CenterAdvisory Policy Board and on the boardof the FBI’s National Law EnforcementTelecommunications System. He also isa member of the Board of Directors ofSEARCH and chairs its Law and PolicyProgram Advisory Committee.

Maj. Martin received hisundergraduate degree in industrialmanagement at Charleston SouthUniversity. He received an M.B.A. fromthe University of South Carolina.

Insp. Gary D. McAlveyInsp. McAlvey currently serves as

Special Assistant to the Deputy Directorof the Illinois State Police Division ofAdministration and as Advisor to theState Armed Felon Enforcement TaskForce of the Illinois State Police. From1977-93, he held the position of Chief ofthe Bureau of Identification, IllinoisState Police. Prior to serving as Chief,Insp. McAlvey worked in variouspositions within the Illinois State Policeand for the Pittsburgh and AlleghenyCounty Crime Laboratory, Pittsburgh,Pennsylvania.

Insp. McAlvey has served as anEditor of the Journal of Criminal Law,Criminology and Police Science and theJournal of Police Science andAdministration. He also has served as aninstructor and lecturer at the Universityof Louisville, Southern Police Instituteand Waubonsee Community College,Aurora, Illinois. He is a member ofseveral professional organizations.

Insp. McAlvey is the most seniormember of the SEARCH MembershipGroup, having been appointed in 1970.He has served a total of five terms asChairman of SEARCH and in 1986 wasawarded its Board of Directors Awardfor Meritorious Service.

Insp. McAlvey holds a B.S. in PoliceAdministration (Forensic Science) fromMichigan State University.

Janet RenoThe Honorable Ms. Reno was

appointed Attorney General of theUnited States by President Clinton onMarch 12, 1993. From 1978 until thetime of her appointment, Ms. Renoserved as the State’s Attorney in Miami,Florida. She was initially appointed tothat position by the Governor of Floridaand was subsequently elected to thatoffice five times.

Ms. Reno was a partner in the Miami-based law firm of Steel, Hector andDavis from 1976-78. Before that, sheserved as an Assistant State’s Attorneyand as Staff Director of the FloridaHouse of Representatives’ JudiciaryCommittee, after starting her legal careerin private practice.

Ms. Reno received her A.B. inchemistry from Cornell University andher LL.B. from Harvard Law School.

Thomas F. RichMr. Rich is a Senior Analyst at

Queues Enforth Development (QED),Inc., a Cambridge, Massachusetts-basedcriminal justice consulting and softwarecompany. He has been at QED since1982 and has participated in a variety ofcriminal justice studies, primarily for theU.S. Department of Justice and forvarious New York City agencies. Hiswork at QED also includes developinggeographic information systems forpublic safety agencies.

Mr. Rich is co-author of the JusticeDepartment publication, IdentifyingPersons, Other than Felons, Ineligible toPurchase Firearms: A Feasibility Study.He is currently Project Manager of theCriminal History Records Improvementproject, funded by the Bureau of JusticeAssistance, U.S. Department of Justice.

Mr. Rich holds an A.B. inmathematics from Cornell Universityand an M.S. in engineering-economicsystems from Stanford University.


Laurie O. RobinsonMs. Robinson was named Acting

Assistant Attorney General of the U.S.Department of Justice’s Office of JusticePrograms on August 23, 1993. Ms.Robinson also serves as an AssociateDeputy Attorney General.

Prior to joining the JusticeDepartment, Ms. Robinson was Directorof the American Bar Association’s(ABA) Criminal Justice Section since1979. In that position, she wasresponsible for special projects, policydevelopment and liaison with othercriminal justice and public interestorganizations in furthering the policygoals of the ABA. During her tenure,from 1986-93, Ms. Robinson also headedthe ABA’s Professional ServicesDivision, which included the Taxation,International Law, Criminal Justice andIndividual Rights sections; the Center onChildren and the Law; the StandingCommittee on National Security; theCentral and East European Law Initiative(CEELI); and the Commission onHomelessness and Poverty.

From 1972-79, Ms. Robinson servedas Assistant Staff Director of the ABACriminal Justice Section. She alsoworked as a reporter and editor for aNew York City Ford Foundation-fundedeffort to provide better news coveragefor the city’s African-American andPuerto Rican communities.

Ms. Robinson served as Chair of theNational Forum on Criminal Justice from1991-93, and was a member of the Boardof Regents of the National College ofDistrict Attorneys and the NationalCommittee on Community Corrections.She also has sat on the Boards ofDirectors for the National Association ofWomen in Criminal Justice and theVictim Assistance Legal Organization.She currently serves on the AdvisoryBoard of the Federal SentencingReporter.

Ms. Robinson graduated fromPembroke College in Brown Universitywith a degree in political science.

Stephen R. RubensteinMr. Rubenstein is Senior Counsel of

the Firearms and Explosives Unit in theOffice of the Chief Counsel, Bureau ofAlcohol, Tobacco and Firearms (ATF),U.S. Department of the Treasury. Amonghis primary duties in this position areacting as legal counsel to ATF on allmatters arising in the administration andenforcement of the Federal firearms andexplosives laws; drafting legal opinionsconcerning firearms and explosives lawsand regulations; providing technicalassistance to Congressional committeesin legislative drafting sessions relating tofirearms and explosives; and providinglegal advice and assistance to otherFederal, State and local agencies,including United States Attorneys andU.S. Justice Department officials in theprosecution of ATF cases related tofirearms and explosives matters. Mr.Rubenstein also teaches law enforcementclasses at the Federal Law EnforcementTraining Center in Glynco, Georgia.

Mr. Rubenstein received his J.D. fromBoston College Law School and his B.A.from Boston University.

Edward J. (Jack) ScheideggerMr. Scheidegger has been Chief of the

Bureau of Criminal Identification andInformation (BCII) in the CaliforniaDepartment of Justice (DOJ) since 1991.He is responsible for administeringcriminal identification and informationservices to local and national criminaljustice systems from a complexorganization consisting of approximately1,000 positions with a $47 million annualbudget.

Previous to his appointment as BCIIChief, Mr. Scheidegger held thefollowing positions in the CaliforniaDOJ: Chief, Bureau of ForensicServices; Director, Bureau of Medi-CalFraud and Patient Abuse; ChiefInvestigator, Bureau of Medi-Cal Fraud;Legislative Advocate, AttorneyGeneral’s Office; Program Manager,Statistical Analysis Center, Bureau ofCriminal Statistics; Manager, AutomatedLatent Print System, Bureau of ForensicServices; and Chief, Special ServicesBureau, Investigative Services Branch.

Mr. Scheidegger’s 25 years ofexperience in the law enforcement fieldalso has included serving as Chair of theAttorney General’s Advisory Committeeon Identification and Information, amember of the Los Angeles PoliceDepartment Hillside Strangler TaskForce, and as a legislative advocate forlaw enforcement. He is the Californiagovernor-appointee to SEARCH andcurrently serves on the SEARCH Boardof Directors. Mr. Scheidegger also chairsthe Bureau of Justice Statistics/SEARCHNational Task Force on Improving theUtility of the Criminal History Record,which is reviewing the content of rapsheets nationwide and will makerecommendations for improvements.

Mr. Scheidegger received a B.A.degree in public administration fromCalifornia State University, Sacramento,and an M.P.A. from the University ofSouthern California. He has alsocompleted the Executive ManagementProgram at the University of California,Davis.

James F. SheaMr. Shea is Assistant Director of

Integrated Systems Development (ISD)at the New York State Division ofCriminal Justice Services. In addition tocoordinating the statewide criminaljustice data standardization project, ISDstaff is developing standard software andforms for local law enforcement,prosecution, jails and courts. The unit isalso funded by two Federal grants thatsupport efforts to improve the dataquality of criminal justice records. ISDstaff is completing an assessment of dataquality within the criminal justice systemin New York State.

Mr. Shea has over 20 years ofexperience in the criminal justice field.He holds a B.A. from Holy CrossCollege and an M.B.A. from UnionCollege.


Capt. R. Lewis VassCapt. Vass is the Records

Management Officer of the RecordsManagement Division, VirginiaDepartment of State Police. Hisresponsibilities include overseeing theVirginia Automated FingerprintIdentification System (AFIS), VirginiaCentral Criminal Records Exchange,Virginia Firearms Transaction Program(VFTP), Virginia Criminal InformationNetwork, Virginia Missing ChildrenInformation Clearinghouse and theUniform Crime Reporting Section. He isa representative on the National CrimeInformation Center Southern RegionWorking Group and the National LawEnforcement TelecommunicationsSystem, and is the Control TerminalOfficer for the State of Virginia. Capt.Vass was instrumental in designing anddeveloping the VFTP, the first instantcheck point-of-sale approval system inthe Nation for firearms sales, as well asthe design and implementation of theMultiple Handgun Application/Certificate Program.

Capt. Vass served as a member of theFelon Identification in Firearms Sales AdHoc Task Force for the U.S. Departmentof Justice, and as a member of thesteering committee to assist the Bureauof Justice Assistance in the design of amethodology to evaluate criminal historyrecords programs. He currently serves onthe Bureau of Justice Statistics/SEARCHNational Task Force on Increasing theUtility of the Criminal History Record; isa member of the AFIS Internet; andserves as a coordinator of legislativeliaisons to the Virginia GeneralAssembly for the State Police.

Capt. Vass graduated from theVirginia State Police Academy in 1967.During his 26-year service with the StatePolice, he has received specializedtraining in many areas of lawenforcement, including the handling ofexplosive devices, terrorist activities andcivil disorders. He is a graduate ofNorthwestern University TrafficInstitute, and is currently a student atVirginia State University.

Virgil L. Young Jr.Mr. Young is currently the Section

Chief, Programs Development Section,Criminal Justice Information ServicesDivision, Federal Bureau ofInvestigation. In 1991, he was alsodesignated as an Inspector-in-Place.

Mr. Young began his FBI career as aSpecial Agent in 1970 and was assignedto the Detroit Field Office. He was laterassigned to the San Francisco FieldOffice to attend the Defense LanguageInstitute in Monterey, California. In1972, he served as a “street agent” andlater a Squad Supervisor in the NewYork Office.

Mr. Young has held various otherpositions with the Bureau, includingsupervisory duties in the CriminalInvestigative Division at FBIheadquarters; Unit Chief; Inspector’sAide; Assistant Section Chief; andSection Chief in the IdentificationDivision. He also served in theRichmond, Virginia Field Office asAssistant Special Agent in Charge.

Mr. Young earned a B.A. degree inpolitical science from the University ofKansas. Upon graduation, he wascommissioned a second lieutenant in theU.S. Marine Corps, where he spent 4years as an infantry officer, including 1year in Vietnam. He later earned amaster’s degree in professional studiesfrom Long Island University.

Appendix 1

Public Law 103-159:Brady Handgun Violence Prevention Act

Appendix 2

Bureau of Alcohol, Tobacco and Firearms:Preliminary list of States subject to the

Federal five-day waiting period orStates having alternative systems

as defined in the law

Appendix 3

Bureau of Alcohol, Tobacco and Firearms:Open letter to all Federal firearms licensees

subject to the waiting period provisionsof the Brady Law

Appendix 4

Bureau of Alcohol, Tobacco and Firearms:Open letter to all Federal firearms licenseesnot subject to the waiting period provisions

of the Brady Law

Appendix 5

Bureau of Alcohol, Tobacco and FirearmsForm 5300.35:

Statement of intent to obtain a handgun(s)

Appendix 6

Bureau of Alcohol, Tobacco and Firearms:Open letter to State and local

law enforcement officials

Appendix 7

Bureau of Alcohol, Tobacco and Firearms:Brady Handgun Violence Prevention Act

Questions and Answers

Appendix 8

Queues Enforth Development, Inc.:Executive summary to Identifying Persons, Other

Than Felons, Ineligible to Purchase Firearms:A Feasibility Study

Appendix 9

State of OregonDealer’s Record of Sale of Handgun

Appendix 10

Public Law 103-209:National Child Protection Act of 1993

Appendix 11

American Bar AssociationCenter on Children and the Law

memorandum on theNational Child Protection Act of 1993

Appendix 12

Arkansas Code Annotated§§20-78-601 to 604:

Background checks of child carefacility licensees and employees

Electronic Editor’s Note: An electronic version of this section is not available.

Criminal History Records

Documents

Transcript of Criminal History Records