Improving Access to and Integrity of Criminal History Records

Bureau of Justice Statistics

U.S. Department of Justice

Office of Justice Programs

Improving Access to and

Integrity of Criminal

History Records

Achievements of the National Criminal

History Improvement Program

Missing dispositions in criminal history

records

Opportunities for improving background

checks

U.S. Department of Justice

Office of Justice Programs

810 Seventh Street, N.W.

Washington, D.C. 20531

Alberto R. Gonzales

Attorney General

Office of Justice Programs

Partnerships for Safer Communities

Regina B. Schofield

Assistant Attorney General

World Wide Web site:

http//www.ojp.usdoj.gov

Bureau of Justice Statistics

Lawrence A. Greenfeld

Director

World Wide Web site:

http://www.ojp.usdoj.gov/bjs

For information contact

National Criminal Justice Reference Service

1-800-851-3420

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Statistics

Improving Access to

and Integrity of Criminal

History Records

Peter M. Brien

Bureau of Justice Statistics

July 2005, NCJ 200581

U.S. Department of Justice

Office of Justice Programs

Bureau of Justice Statistics

Lawrence A. Greenfeld

Director

Peter M. Brien, Statistical Policy Advisor, BJS, wrote this

report. Todd D. Minton, BJS Statistician, verified the

findings. Tina Dorsey produced the report, and Tom Hester

edited it.

Office of Justice Programs

Partnerships for Safer Communities

Contents

Achievements of the National Criminal History

Improvement Program 1

Missing dispositions in criminal history records 9

Opportunities for improving background checks 19

Appendix I. Identifying prohibited purchasers:

The mentally ill 25

Appendix II. Identifying prohibited purchasers:

Domestic violence misdemeanants and subjects

of restraining orders 33

Appendix III. BJS surveys in the aftermath

of September 11, 2001 39

Improving Access to and Integrity of Criminal History Records

NCHIP overview

The National Criminal History Improve-

ment Program (NCHIP) represents a

close collaboration among the Bureau

of Justice Statistics (BJS), State crimi-

nal justice agencies, and the Federal

Bureau of Investigation (FBI). Since

1995, this collaboration has improved

the nation's public safety by enhancing

and upgrading the States' criminal

history records which are used for

background checks for firearms

purchases, pre-employment checks for

certain sensitive professions, criminal

sentencing decisions, and many other

purposes. The NCHIP program has

facilitated the development of a

national network of State criminal

records which is available to State and

federal law enforcement officials.

The program has provided direct finan-

cial and technical assistance to States

to develop and upgrade their criminal

record information systems — includ-

ing records of protection orders, sex

offender registries, and automated

fingerprint identification. NCHIP has

been instrumental in making these

records accessible on an interstate

basis through FBI administered

systems —

• the National Instant Criminal

Background Check System (NICS)

• the Interstate Identification Index (III)

• the National Protection Order File

• the National Sex Offender Registry

• the Integrated Automated Fingerprint

Identification System (IAFIS).

Since 1995 BJS has awarded nearly

$400 million to States and Territories.

During the period of funding the

number of criminal history records has

increased 29% nationwide, and the

number of automated records available

for immediate use by law enforcement

increased 35%.

As of December 31, 2001, there were

nearly 64.3 million subjects in State

criminal record files, and 89% of these

records were automated.

This highlights section presents an

overview of 11 performance measures

for NCHIP:

• Millions of background checks are

supported by the NICS

• The percentage of State criminal

history records which are automated

has improved

• The number of records that are

shareable through the FBI’s III has

increased

• The number of States participating in

III has increased

• More law enforcement agencies are

reporting arrest information

electronically

• The number of States participating in

the FBI’s IAFIS has increased

• More courts are transmitting

automated dispositions

• Criminal history information process-

ing has become more efficient

• The National Protection Order File

has significantly expanded

• The National Sex Offender Registry

has reached record levels

• NCHIP has established a framework

to assist in Homeland Security.

These measures summarize how

NCHIP has assisted States in improv-

ing criminal history record complete-

ness and automation.

The National Instant Criminal

Background Check System (NICS)

supports millions of background

checks

NCHIP funds have supported State

efforts to conduct rapid and efficient

checks under the NICS. In 2001, the

NICS supported nearly 8 million checks

at the presale stage of firearms

purchases.

Assisted by NCHIP funding, the State

NICS infrastructure made the transition

from an interim system to the current

permanent system. Under the interim

Brady system, the chief law enforce-

ment officer conducted checks.

Currently States operate background

check systems of their own (Point-of-

Contact States or POC States), rely

exclusively on the NICS, or do both.

From the inception of the Brady Act on

March 1, 1994, to December 31, 2001,

nearly 38 million applications for

firearm transfers were subject to

background checks.

Achievements of the National Criminal History Program

Improving Access to and Integrity of Criminal History Records

Data sources for measuring

access to and integrity of

criminal history records

Almost a decade before the incep-

tion of NCHIP in fiscal year 1995,

BJS formed a partnership with the

States and the FBI to improve the

accuracy and accessibility of criminal

history records. After passage

of the Brady Act, expanded use of

those records enlarged both BJS'

role as administrator of funds to

improve record systems and BJS'

role as statistical monitor to meas-

ure efficiency and completeness.

The following provided data for this

report:

• Since 1989 BJS has funded the

biennial Survey of Criminal History

Information Systems, conducted by

SEARCH, The National Consortium

for Justice Information and Statistics.

• In 2001 and 2002 BJS initiated

research with the Regional Justice

Information Service (REJIS) and

SEARCH. These collaborations

addressed issues related to the

completeness and accuracy of crimi-

nal history records, mental health

records, restraining orders, and

misdemeanor domestic violence

records.

• Upon passage of the Brady Act

and creation of NCHIP, BJS initiated

the Firearm Inquiry Statistics

program as part of NCHIP. The

program operates through a

cooperative agreement with REJIS.

Of the nearly 8 million checks

conducted in 2001, 98% of applicants

were approved whether the check was

conducted by the State or the FBI

(figure 1).

There are two principal ways to evalu-

ate the performance of the background

check system:

• Examine the percentage of appli-

cants for a firearm purchase who were

incorrectly prohibited (Error I)

• Examine the percentage of persons

who were allowed to purchase a

firearm who should have been prohib-

ited from doing so (Error II).

Error I can be measured by calculating

the ratio of successful appellants of a

rejection to the total number of appli-

cants to purchase a firearm. In 2002

there were 9,500 successful appeals of

rejections from among the 7,806,000

applicants that year. This translates

into an error rate of 0.1%.

Error II can be measured by calculating

the ratio of firearm retrievals by law

enforcement to the total number of

applicants to purchase a firearm. In

2002 there were 7,400 retrievals due to

an incorrect sale to a prohibited

purchaser against a total of 7,806,000

applicants. This also translates into an

error rate of approximately 0.1%.

Among the 136,000 applicants rejected

as prohibited purchasers during 2002,

8 in 10 did not appeal the rejection.

Among those who filed an appeal,

almost 6 in 10 rejection decisions were

sustained.

Levels of State criminal record

automation have increased

There have been notable improve-

ments in the automation of State crimi-

nal history records since 1995 (figure

2). As the number of criminal records

has increased in recent years, the

NCHIP program has helped the States

to ensure that levels of automation

remain high. In 2001, 30 States had at

least 90% of their criminal history

records automated, compared to 22

States in 1995.

The number of States with relatively

low levels of automation (defined as

having less than 70% of records

automated) declined from 13 States in

1995 to 6 States in 2001.

2001 represents the first year in which

more than half of the States (27)

indicated that 100% of their criminal

history records were automated. In

1999, 21 States reported having 100%

automation, as did 18 States in 1995.

Improving Access to and Integrity of Criminal History Records

Checks conducted

by NICS

4,248,900

Number of denials

reversed

6,300

Number of denials

appealed

13,500 (18%)

Number of denials

not appealed

61,800 (82%)

Number denied

for purchase

75,200 (2.1%)

Number approved

for purchase

3,481,700 (97.9%)

Number of denials

reversed

3,200

Number of denials

appealed

10,400 (17%)

Number of denials

not appealed

50,300 (83%)

Retrievals due to

erroneous sale

3,400

Retrievals due to

erroneous sale

4,000

Number of firearm

purchase applicants

7,806,000

Checks conducted

by POC's

3,556,900

Number denied

for purchase

60,700 (1.4%)

Number approved

for purchase

4,188,200 (98.6%)

Figure 1

Sources: BJS; Bureau of Alcohol, Tobacco, Firearms and Explosives; and the NICS Program Office of the FBI

This 2% rejection rate is consistent with the

rejection rates from 2001, 2000, 1999, and 1998

and during the interim Brady period from 1994 to

1998.

Number of records shareable

through the FBI's Interstate

Identification Index (III) has

increased

The number of Interstate Identification

Index (III) records maintained by the

States as compared to the records

maintained by the FBI is an important

measure of the decentralized nature of

the background check system. To

ensure that criminal history records are

compatible across all States, record

improvements funded by BJS under

NCHIP are required to conform to FBI

standards for III participation. BJS has

designated State participation in the III

as one of the highest priorities of the

NCHIP program.

From yearend 1993 to April 2003, the

number of State records available for

sharing under the FBI's III nearly

doubled from 25.5 million to 48.5

million. Since 1993 the number of

records available for III has been

increasing at a much faster rate than

the overall number of criminal records.

In 1993 half of all criminal history

records were III accessible, and 70%

were in 2001. It is projected that in

2005, more than three-fourths of all

criminal history records will be accessi-

ble through the III.

At yearend 2001, 22 States had at least

75% of their records accessible

through III, and 15 States had 50% to

74% of their records III accessible

(table above).

Number of States participating

in III has increased

As part of NCHIP's commitment to

achieving full State participation in the

FBI's III system, BJS has used the

NCHIP program to encourage all

States to make their records available

to the FBI and other States. In 1989,

20 States were members of the III

system. The number of participating

States grew to 26 in 1993. As of May

2003, 45 States were participating in III.

The application for NCHIP funds

requires nonparticipating States to

include a discussion of their III status

and a plan for future III participation.

Improving Access to and Integrity of Criminal History Records

Figure 2

(less than 70%)

(70-89%)

(90-100%)

1995 1997 1999 2001

Low

Med

High

Number of States

States with high, medium, and low levels

of criminal record automation, 1995-2001

High: 90-100% of criminal records automated

Medium: 70-89% of criminal records automated

Low: Less than 70% of criminal records automated

Wyoming

West Virginia

Virginia

South Dakota

South Carolina

North Carolina

Nevada

WisconsinNew Mexico

VermontWashingtonNew Jersey

TexasUtahNebraska

Rhode IslandTennesseeMontana

North DakotaPennsylvaniaMississippi

New HampshireOregonMinnesota

MassachusettsOklahomaMichigan

MaineOhioMaryland

LouisianaNew YorkIowa

KentuckyMissouriIdaho

KansasIndianaGeorgia

HawaiiIllinoisFlorida

District of ColumbiaDelawareColorado

ConnecticutArkansasCalifornia

AlabamaAlaskaArizona

States with less than 50%

of records III-accessible

States with 50-74%

of records III-accessible

States with at least 75%

of records III-accessible

Percentage of criminal history records accessible through the

Interstate Identification Index (III), by State, December 2001

More law enforcement agencies are

reporting arrest information

automatically

State law enforcement agencies have

frequently relied on the NCHIP

program to help them transition from

ink-based fingerprinting systems to

electronic systems. From 1999 to

2003 NCHIP has provided States with

approximately $31 million for Livescan

systems and their participation in the

FBI's automated fingerprint system.

These systems allow fingerprints to be

scanned and instantly transmitted

electronically to criminal justice

agencies throughout the State or

Nation.

Among the 37 States reporting

complete data, the number of arresting

agencies that electronically transmit

arrest information and fingerprints

increased by more than 2,000 from

1997 to 2001 (figure 3). Nationwide,

2,594 agencies electronically submitted

arrest information in 2001, a substantial

increase from 493 agencies in 1997.

An increasing number of States

participate in the FBI's Integrated

Automated Fingerprint Identification

System (IAFIS)

NCHIP funds are available to all States

for the conversion to IAFIS. As of

March 2003, 43 States, the District of

Columbia, and 3 Territories participated

in IAFIS. In fiscal year 2002 NCHIP

distributed over $3.8 million to 19

States and the District of Columbia to

purchase equipment for the automatic

capture and transfer of fingerprint

images.

More courts are transmitting

automated dispositions

Whether the States can maintain

complete and accurate criminal history

records depends heavily on the ability

of the courts to report final dispositions

automatically to the criminal history

repository or court administrator’s

office. For several years NCHIP has

been committed to supporting the

record and case management systems

of State and local courts.

From 1997 to 2001 NCHIP funds

assisted nearly 725 courts to develop

the ability to report final dispositions

automatically (figure 4). As of yearend

2001, over 2,000 courts were reporting

disposition information electronically,

based on 25 States reporting complete

data.

As part of NCHIP's support for capture

of judicial decisions for criminal history

records, participating courts across the

United States have developed the

ability to —

(1) electronically link fingerprints and

other biometric information to disposi-

tions and share this information with

corrections and law enforcement

agencies

(2) provide electronic protection

order/restraining order files that can be

accessed by law enforcement officers

in the field

(3) establish and maintain sex offender

registries

(4) convert juvenile records to the adult

case management system

(5) establish databases of offender-

based information.

Improving Access to and Integrity of Criminal History Records

Figure 4

Figure 3

1997 1999 2001

500

1,000

1,500

2,000

2,500

3,000

Number of agencies

Estimated number of arresting

agencies reporting dispositions

by automated means, 1997-2001

500

1,000

1,500

2,000

2,500

Number of courts

1997 1999

2001

Estimated number of courts

reporting dispositions by

automated means, 1997-2001

Processing criminal history

information becoming more efficient

Since 1995 NCHIP has assisted States

in developing and implementing

integrated criminal history record

systems. Through NCHIP support, new

information technologies have enabled

State criminal justice agencies to share

critical information more efficiently.

The average time required for agencies

to transmit arrest information, final

court dispositions, and prison admis-

sions to criminal history repositories

has declined significantly since 1995

(figure 5). In addition, these reposito-

ries are processing and posting this

information more quickly than in 1995.

From 1995 to 2001 the average time

between an arrest and the addition of

fingerprints and information about that

arrest to a criminal history record was

cut nearly in half from 45 days to 24

days. The average time required to

receive, process, and add final court

disposition information to a criminal

history record declined more than 30%,

from 68 days to 46 days. In 1995 infor-

mation about an individual's admission

to prison took an average of 94 days to

be received and then posted to a

record. By 2001 this information was

processed 3 times faster, in 31 days.

Despite progress from 1995 to 2001,

not all States have adopted integrated

or automated systems for transferring

criminal history information. In 2001

States were still more likely to transmit

information through the U.S. Postal

Service than by electronic or online

transmissions.

The National Protection Order File

has significantly expanded

A 1994 amendment of the Federal Gun

Control Act made illegal the sale of

firearms to persons subject to a qualify-

ing protection order. A qualifying

protection order meets conditions that

refer to domestic violence. NCHIP has

placed special emphasis on ensuring

that domestic violence-related offenses

and protection orders are included in

criminal records. Funds have been

specifically awarded for development of

State protection order files that are

compatible with the FBI's national file,

NCIC National Protection Order File, to

permit interstate enforcement of

protection orders.

The National Protection Order File, the

fastest growing national set of criminal

history records maintained by the FBI,

has tripled in size since 2000 (figure 6).

On February 3, 2003, the National

Protection Order File held over 750,000

protection orders from 43 States.

Improving Access to and Integrity of Criminal History Records

1995 1997 1999 2001

100

Average number of days for repositories

Prison admission

Court disposition

Arrest information

to receive and process criminal history data

Average number of days required for repositories to receive

and process information, 1995-2001

Figure 5

Figure 6

Number of records

2000 2001 2002 2003

Jan Apr Jul Oct Jan Apr Jul Oct

Jan

Apr Jul Oct Jan

200,000

400,000

600,000

800,000

Number of files in the National Protection Order File, 2000-03

The National Sex Offender Registry

has reached record levels

Since 1998, the NCHIP program has

assisted States in establishing sex

offender registries which interface with

the FBI's National Sex Offender Regis-

try. This assistance has enabled State

sex offender registry information to be

obtained and tracked from one jurisdic-

tion to another.

The National Sex Offender Registry

has seen dramatic growth in recent

years, from nearly 50,000 records in

2000 to over 280,000 records in 2003

(figure 7). On February 3, 2003, the

National Sex Offender Registry

contained records from every State, the

District of Columbia, and 3 Territories.

NCHIP helped to create tools for

accomplishing the work of

Homeland Security

A signal contribution of NCHIP has

been to assist the States and the FBI in

construction of a nationwide network of

criminal history and fingerprint

archives. The contents can be

examined for both criminal justice

purposes (for example, presale

firearms checks) and noncriminal

justice purposes, such as employment

security clearances.

In 1992 State repositories held 36.4

million automated criminal history

records, and 4 States relied completely

on paper records. Since 1995 NCHIP

has assisted the States' transition

toward automation, so that in 2001

State repositories held 57.4 million

automated criminal history records.

As of March 1, 2003, there were 48.5

million criminal records that were

shareable through III.

Improving Access to and Integrity of Criminal History Records

Jan Apr Jul Oct Jan Apr Jul Oct Jan Apr Jul Oct Jan

50,000

100,000

150,000

200,000

250,000

300,000

Number of records

2000 2001 2002 2003

Number of records in the National Sex Offender Registry, 2000-03

Figure 7

Future challenges for NCHIP

With a history of success, the role of

NCHIP has evolved to support the

States in pursuing emerging technolo-

gies and new criminal justice priorities

as identified by Federal and Sate

policymakers.

According to the administrators of

NCHIP, there exist areas of opportunity

where Federal resources will continue

to be needed. Discussed in greater

detail in the following pages, these

future challenges for NCHIP include:

Updating relevant mental health

records — BJS has conducted

surveys to examine the status of

mental health records among the

States. Analysis of responses can help

to determine how NCHIP can further

enable States to make the information

in mental health records available for

background checks.

Improving access to records for

domestic violence misdemeanor

convictions — Since 1996, when

Congress added conviction for a

domestic violence misdemeanor to the

list of Federal firearm prohibitors,

NCHIP has worked with the States to

improve access to these records;

however, significant challenges remain.

Recent BJS surveys examined the

persistent impediments to accessing

these criminal records.

Ensuring that court disposition

reporting systems are automated —

All court disposition information should

be transmitted electronically using

established technologies. The automa-

tion of court dispositions will provide

complete and accurate information

electronically to Federal and State

criminal justice officials.

Encouraging prosecutors to

complete criminal history records

by reporting their declinations to

prosecute — When prosecutors

decline to prosecute arrestees,

frequently the declinations are not

added to the criminal records. Checks

of these records require significant

effort to discover whether the arrested

individual was prosecuted.

Converting older paper records into

an electronic format — Many State

criminal history record holdings contain

older records on paper. Full automation

awaits the entering of these records

into the system.

Linking criminal history transactions

with NIBRS incident reports — This

linkage allows criminal history records

to reflect a wealth of detailed informa-

tion concerning the nature and charac-

teristics of criminal incidents. Incident-

based information allows for better

informed decisions regarding criminal

punishment, crime control strategies,

and policy analysis.

Developing a uniform national crimi-

nal history format for RAP sheets —

Because of variation in criminal history

record formats among the States, the

interstate exchange and interpretation

of criminal history information are

unnecessarily complicated. The devel-

opment and adoption of a uniform

format for RAP sheets will make crimi-

nal history information more easily

understood across jurisdictions.

Continuing to address privacy and

confidentiality issues as they relate

to non-criminal justice background

checks — The Prosecutorial

Remedies and Other Tools to end the

Exploitation of Children Today Act of

2003 or PROTECT Act contains provi-

sions that will make it easier for private

organizations that work with children,

the elderly, or the disabled to conduct

background checks on volunteers.

The PROTECT Act established a pilot

program that permits volunteer organi-

zations to submit 100,000 requests for

background checks to Federal authori-

ties. States will want to ensure that

privacy and confidentiality protections

are respected as non-criminal justice

background checks become more

prevalent.

Improving Access to and Integrity of Criminal History Records

NCHIP goals

NCHIP remains committed to its

responsibility to provide Federal assis-

tance to State criminal justice record

systems. That bedrock commitment

remains as the program addresses

these challenges:

• Identify how NCHIP can be more

effective in promoting the use of State

mental health records during

background checks

• Create initiatives to remove impedi-

ments to the availability of conviction

records for domestic violence

misdemeanors

• Continue NCHIP efforts to introduce

technology into all courtrooms so that

disposition records will be transmitted

electronically to criminal history record

repositories

• Develop procedures to encourage

prosecutors to promptly report declina-

tions to the repositories

• Continue NCHIP's encouragement

of States to remove backlogs of paper

records

• Support the development and

adoption of a uniform RAP sheet

• Work with States to ensure that

privacy and confidentiality protections

are respected as background checks

for noncriminal justice purposes

become more prevalent.

In a 2001 survey, half the States

reported that from 10% to over 50% of

the arrests recorded in State databases

had no final disposition indicating how

the arrest was resolved. These arrests

that lack dispositions, known as “open”

or “naked” arrests, create substantial

problems for time-sensitive background

checks because conducting the neces-

sary research to complete the record is

often time consuming, labor intensive,

and costly.

BJS examined the scope of missing

dispositions as reported by the States

in a 2001 survey. Factors that contrib-

ute to missing dispositions include the

following:

• poor communication among the

courts, law enforcement, and correc-

tions agencies in providing final dispo-

sition information to the State reposi-

tory

• reliance on the mail and manual

research rather than on electronic

communication

• repository delays in posting disposi-

tion information to a criminal record

• persistent backlogs of criminal justice

records in criminal history repositories

• failure of States to audit their data-

bases to ensure record completeness

• varying definitions of “missing

dispositions” among States

• inconsistent procedures among

States for handling missing

dispositions.

Missing dispositions or “open

arrests” an extensive problem

In a 2001 survey, State repository

directors were asked what percentage

of arrests in their databases had final

dispositions recorded. Six States

reported that 90% or more of their

arrests had corresponding final disposi-

tions. Twenty-three States reported that

between 50% and 89% of arrests had

dispositions. In nine States less than

half of the arrests had final dispositions

recorded in the databases. Twelve

States and the District of Columbia

could not estimate the percentage of

arrests with dispositions.

The repository directors also reported

the percentage of arrests occurring

within the last 5 years (“recent arrests”)

that contained final dispositions. Eight

States reported that 90% or more of

their recent arrests had final disposi-

tions attached. Twenty States reported

that between 50% and 89% of recent

arrests had dispositions. In 12 States

less than half of the recent arrests in

their database had final dispositions

recorded. Ten States and the District

of Columbia could not estimate the

percentage of recent arrests with

dispositions.

Another measure of the missing dispo-

sition problem is the number of final

court dispositions in State files that can

not be linked to arrest or charging infor-

mation. In 2001, 14 States estimated

the number of unlinked court disposi-

tions. These States reported a total of

704,300 final court dispositions on file

that could not be linked to arrest or

charging information, an average of

over 50,000 unlinked dispositions per

State.

While 14 States estimated the

number

of unlinked final court dispositions, 16

States estimated the

percentage

final court dispositions in their files that

could not be linked to an arrest. Minne-

sota and Indiana reported that half of

their final court dispositions could not

be linked to arrest or charging informa-

tion. Wisconsin, Kansas, and Pennsyl-

vania reported that between 30% and

40% of their final court dispositions

were unlinked. In Michigan and

Nebraska a quarter of their final court

dispositions had no link to arrest or

charging information. The remaining

nine States (Georgia, Maryland,

Montana, Nevada, New York, South

Carolina, South Dakota, Utah, and

Virginia) reported that 10% or fewer of

their final court dispositions contained

no arrest or charging information.

Poor interagency communication

contributes to missing dispositions

Interagency communication can be

evaluated in three ways:

(1) by the number of days required for

the court, law enforcement agency, or

corrections agency to report disposition

information to the repository

(2) by the extent to which criminal

justice agencies rely on manual

systems rather than electronic systems

to transmit disposition information and

research missing dispositions

(3) by whether all criminal justice

agencies are fully aware of their report-

ing requirements.

Missing dispositions in criminal history records

Improving Access to and Integrity of Criminal History Records

Disposition data took over a week on

average to reach repositories

A leading reason why final dispositions

are not adequately linked to their

associated arrests is delay by the

courts, law enforcement, and correc-

tions agencies in reporting disposition

information to repositories (figure 8).

Another important reason, processing

delays by the repository, is described

more fully in a following section.

Court disposition information

required

3 weeks on average

On average in 2001, it took 21 days for

final court dispositions to reach the

State criminal history repository.

The

time required for repositories to receive

disposition information ranged from 1

day or less in six States to 80 days in

North Dakota. Repositories in most of

the reporting jurisdictions (21) received

final court disposition information within

15 days.

The average time required for final

court disposition information to reach

the repository steadily decreased from

36 days in 1997 and 33 days in 1999.

In 2001 final court dispositions reached

the repository 14 days faster on

average than they did in 1995; how-

ever, as six States have demonstrated,

the average time for submission could

be 1 day rather than 21 days.

Arrest information

required 11 days

on average

In 2001, as in 1999, arrest data and

fingerprints took 11 days on average to

be received by State repositories. The

time required to receive arrest informa-

tion ranged from 1 day or less in five

States and the District of Columbia to

169 days in Mississippi. In 22 States

and the District of Columbia, reposito-

ries received arrest information within 7

days.

In 1995 and 1997 transmission of

arrest information to the repository took

an average of 13 days and 14 days,

respectively.

Corrections information

required

9 days on average

In 2001 an average of 9 days elapsed

between a prison admission and the

receipt of that information by the State

repository. The time required for

repositories to receive prison admis-

sions ranged from 1 day or less in nine

States to 60 days in North Carolina.

Repositories in just over half of the

reporting jurisdictions (17) received

prison admission information in 7 days

or less.

In 2001 the average prison admission

reached the repository 5 times faster

than in 1995, when 45 days were

required. In 1997 and 1999 prison

admissions reached the repository

in 16 days on average.

Prosecutor declinations often did not

reach repositories

In 2001, 12 States were able to

estimate the number of prosecutor

declinations — decisions to drop or

modify charges — sent to the reposi-

tory in the prior year. Thirty-two States

indicated that State law or policy

required that prosecutorial declinations

be transmitted to criminal history

repositories.

Local prosecutors often fail to report

declinations to State record reposito-

ries. In 2001 five States indicated that

all prosecutorial declinations were

transmitted to the repository. In 1999

three States, and in 1997 six States,

reported that all prosecutors’ declina-

tions were transmitted to the

repository.

BJS, with the American Prosecutors

Research Institute, is scheduling a

survey to delineate more clearly the

processes by which disposition infor-

mation reaches or fails to reach a

repository. The study will examine the

following: whether statute, regulation,

office practice, or some other authority

Improving Access to and Integrity of Criminal History Records

Figure 8

1995 1997 1999 2001

Final court dispositions

Arrest information

Average number of days required for repositories

to receive criminal history information, 1995-2001

Number of days

Prison admissions

The average number of days for prison admis-

sion information to reach repositories was based

on 1995-2001 data from a cohort of 25 States.

The average number of days for arrest informa-

tion to reach repositories was based on 1995-

2001 data from a cohort of 40 States and the

District of Columbia.

The average number of days for final court

disposition information to reach the repository

was based on 1995-2001 data from a cohort of

28 States.

governs the transmission of declination

information by prosecutors; what

penalties (if any) exist for noncompli-

ance; the average time from declina-

tion to the notification of the repository;

and the impediments that exist in

reporting declinations promptly to the

repository.

Postal services used instead of

electronic communication

Trial courts provide most of the infor-

mation about final dispositions. Crimi-

nal history repositories in the 47 States

and the District of Columbia receive

final disposition information from trial

courts or the State court administra-

tor's office. Fifteen of those reposito-

ries receive all the information through

the Postal Service; 14 repositories

receive part of that information by mail.

Thirty-five States request final disposi-

tion information from prosecutors. In

16 States the repositories receive all

information from prosecutors by post;

in 12 States, part of that information.

Twenty-six States request law enforce-

ment agencies to report information on

final dispositions to the repository. In

13 States law enforcement agencies

rely entirely on the Postal Service; in

11 States, partially.

Repositories receive final disposition

information from appellate courts or

court administrators in 28 States. More

than half of these States (15) rely on

the Postal Service for delivery of all this

information; five rely on the Postal

Service for some of the information.

Manual systems used to research

missing dispositions

A 2001 BJS survey revealed that while

researching criminal records with

missing dispositions, agencies in 46

States rely on manual procedures.

Most of these States (34 of the 46) use

only manual systems to locate missing

final dispositions. Only Colorado,

Michigan, Pennsylvania, and South

Dakota fully utilize automated means

to obtain missing final dispositions.

Agencies unaware of their

reporting requirements

In certain States the criminal history

repository does not capture final dispo-

sition information because the

agencies responsible for providing this

information are not aware of all report-

ing requirements. Other States report

that courts and law enforcement

agencies are maintaining incomplete

or inaccurate statistics on final case

dispositions.

Arrest and corrections information

does not always reach repositories

The transmission of arrest and correc-

tions information to the repository is

not required by law or policy in all

States.

In 39 States and the District of Colum-

bia, there are policies to provide the

repository with data on the admission

or release of felons from State prison.

In 26 States and the District of Colum-

bia, there are policies to give the

repository information on the admis-

sion or release of a felon from a local

jail.

Thirty-one States and the District of

Columbia have policies to provide

probation information to the repository,

and 30 States and the District of

Columbia have policies to provide

parole information.

If an arrestee is not charged with a

crime after the fingerprints are submit-

ted to the repository, 19 States

indicated that State law does not

require that the repository be notified

of the failure to charge the arrestee.

Criminal history repositories face

challenges in processing records

Recent BJS surveys have suggested

that criminal history repositories are

encountering several problems includ-

ing significant backlogs, older records

that have no dispositions, and infre-

quent audits to ensure accuracy of

records.

The backlogs faced by criminal history

repositories can be measured in two

ways:

(1) by the length of time between the

repository’s receipt of information and

when that information is entered into a

record

(2) by the number of forms that await

entry into the record.

By both measures, State repositories

face significant challenges that must

be met to improve the NICS

background check process.

Improving Access to and Integrity of Criminal History Records

Overall average processing times by

repositories decreased

1995-2001

Separate from the issues whether the

repositories receive final court disposi-

tions, arrest information, or correctional

information, and whether the received

information is recent, is how well a

repository processes information it

does receive. Many State repositories

are unable to quickly process critical

information and include it in the record,

despite progress in recent years

(figure 9).

Final court dispositions

— Repositories

took an average of 25 days to process

final court disposition information and

post it to a criminal record in 2001.

The time required to post court disposi-

tion information ranged from 1 day or

less in 12 States to 330 days in

Washington. The majority of respond-

ing jurisdictions (23) entered these

data in 10 days or less.

Average processing time has

decreased since 1995 and 1997 when

repositories took 33 and 34 days,

respectively, to post final court disposi-

tions. In 1999 an average of 24 days

was required.

Prison admission information

— In

2001 an average of 22 days elapsed

between the repository’s receipt of

prison admission information and the

posting of that information to the

record. The time required to post

prison admission information ranged

from 1 day or less in nine States to 90

days in Illinois. The majority of

responding jurisdictions (21) enter

these data in 10 days or less.

The average number of days required

to post prison admission information

has declined significantly in recent

years. In 2001 repositories processed

and posted prison admission informa-

tion in nearly half the time required in

1999, when the process took an

average of 43 days. The average

processing time for prison admissions

in 2001 was considerably shorter than

in 1995 and 1997 when processing

took 49 days and 29 days,

respectively.

Arrest information

— Repositories took

an average of 13 days to post arrest

information to a criminal record in

2001. Eleven State repositories posted

arrest information in 1 day or less.

Oklahoma took 180 days — the

longest time period of any State. Most

States (27) posted arrest data in 7

days or less.

In 2001 repositories posted arrest

information to a criminal record in less

than half the time required in 1995,

when the process took an average of

32 days.

In 1997 and 1999 State

repositories took an average of 31

days and 28 days, respectively, to

process arrest information and post it

to a record.

Improving Access to and Integrity of Criminal History Records

Figure 9

1995 1997 1999 2001

Final court dispositions

Arrest information

Average number of days required for repositories

to post information to a record, 1995-2001

Number of days

Prison admissions

The average number of days required for

repositories to process and post final court

dispositions to a record was based on 1995-

2001 data from a cohort of 32 States and the

District of Columbia.

The average number of days required for

repositories to process and post prison admis-

sion information to a record was based on 1995-

2001 data from a cohort of 28 States.

The average number of days required for

repositories to process and post arrest infor-

mation to a record was based on 1995-2001

data from a cohort of 41 States and the District

of Columbia.

Repository backlogs exceed

2.5 million records

In 2001 most States reported that they

were encountering backlogs in entering

certain criminal history information into

State criminal databases. Twenty-six

States reported a backlog in entering

arrest and fingerprint information; 27

States had a backlog of court disposi-

tion forms; and 12 States had a

backlog of custody supervision reports.

Repositories in States that could

estimate the size of their backlogs in

2001 reported that 2.5 million records

of arrest, disposition, and custody

information were unprocessed or only

partially processed (figure 10). The

backlog comprised over 2 million court

disposition forms, 350,000 fingerprint

cards, and 130,000 custody supervi-

sion reports.

In 2001 State repository backlogs were

smaller in all three categories of infor-

mation than they were in 1995.

Compared to 1997, however, the total

backlog increased 50% in 2001. Most

of the increase after 1997 was

attributable to unprocessed court

disposition forms, increasing from

940,000 in 1997 to approximately 2

million in 2001. The number of unproc-

essed custody supervision reports

nearly tripled from 1997 to 2001 from

46,500 to 134,000. From 1997 to 2001,

the backlog of unprocessed fingerprint

cards was cut in half from 710,000 to

354,000.

The composition of State criminal

record backlogs remained unchanged

in recent years. Since 1995 court

disposition forms have comprised the

majority of State criminal record

backlogs, followed by arrest fingerprint

cards and custody supervision reports.

Because not all States can estimate

the size of their repository backlogs,

the true number of unprocessed or

partially processed criminal justice

records is likely to be higher than the

estimates reported here.

Older records on paper or microfilm

account for large portion of “open

arrests”

Many State criminal history records

contain arrests from several years ago

for which no final disposition was

reported. At the request of BJS, the

FBI drew a sample of NICS checks

that could not be completed instantly

due to the presence of “open arrests."

More than 75% of the arrests from this

sample were from 1984 or earlier.

Audits of criminal history records

remain infrequent

In 2001, 23 State criminal history

repository directors reported that their

databases had not been audited for

completeness in the prior 5 years. An

audit would have told them how

accurate and complete were the crimi-

nal histories in their holdings. Over half

of those States (13) reported that they

had not planned or scheduled a data

quality audit to occur within the next 3

years. Overall, 24 States did not plan

to perform a data quality audit within 3

years of the survey.

Of the 27 States with completed audits

after 1995, changes were made to

improve data quality as a result of 22

of these audits.

Improving Access to and Integrity of Criminal History Records

Figure 10

State repository backlog, by type of record, 1995-2001

1995 1997 1999 2001

500,000

1,000,000

1,500,000

2,000,000

2,500,000

Number of records

Custody supervision reports

Fingerprint cards

Court disposition forms

National standards can help assure

complete criminal history records

The problem of missing dispositions

in State criminal history records is

perpetuated in part because there is no

national consensus on how a missing

disposition is defined, measured, or

researched by State agencies.

Improvements in criminal history

records have fallen short of earlier BJS

efforts to establish voluntary reporting

standards.

The presence of a national

standard on the time required for final

court disposition information to reach

the repository would encourage better

performance by States that currently

process this information more slowly.

National standards are lacking on the

following five issues concerning crimi-

nal history record completeness.

States define "missing dispositions"

differently

States' definitions of an “open” arrest

or “missing disposition” vary. It is diffi-

cult to accurately identify missing

dispositions and obtain a national

estimate of the extent of the problem

because the term has different

meanings in different States.

Most States (34) and the District of

Columbia consider any arrest event or

charge without a disposition to be a

“missing disposition,” while 16 States

require a certain amount of time to

pass before an arrest event or charge

is officially considered a missing dispo-

sition.

Ten States reported that they define a

missing disposition as an arrest that is

not being actively prosecuted. These

10 States rely on a variety of methods

to determine that an arrest is not being

actively prosecuted, including notifica-

tion by the prosecutor or court, search-

ing court records, and regular audits of

records.

States are divided as to whether they

measure a missing final disposition by

using an arrest event or an arrest

charge. An event has one or more

charges. Twenty-one States measure

a final disposition by an arrest event;

17 States identify it by an arrest

charge; and 10 States and the District

of Columbia measure a missing final

disposition by both an arrest event and

an arrest charge.

There are also two exceptions to the

basic information used to determine

whether a disposition is missing.

Vermont uses arraignments rather

than arrests, and Pennsylvania does

not specify any particular event to

measure a missing disposition.

States require long delays before

designating a disposition as “missing

”

Sixteen State repositories require that

time elapse before a disposition is

officially considered to be missing.

If the subject of a background check

has been convicted of a disqualifying

offense and the conviction is not

included in the record, in certain States

months will pass before the record is

designated as having a missing dispo-

sition. During those months the subject

will not be prohibited from purchasing a

firearm because the NICS check will

not reveal the disqualifying conviction.

Of the 16 States that require a certain

amount of time to pass before an

arrest event or charge will be officially

considered to have a missing disposi-

tion. Two States require that more than

1 year must pass before a record

without a disposition is officially

declared to have a missing disposition

(Connecticut and Washington). In

seven States an entire year must

elapse before a disposition is consid-

ered missing (Alaska, Indiana, Kansas,

Michigan, Missouri, South Carolina,

and Virginia). In three States a disposi-

tion is not counted as missing until

more than 6 months have passed

(Arizona, Maine, and New York). The

remaining four States use another

time interval.

State procedures for handling missing

dispositions differ

When State repositories receive new

disposition information that cannot be

linked to an arrest charge or event,

States follow varying policies.

From July 1, 2000, to July 1, 2001,

45 States and the District of Columbia

reported receiving final court disposi-

tions that could not be linked to arrest

information in the criminal history

record. When final court dispositions

could not be linked to an arrest, 27

States did not enter the unlinked infor-

mation. Eight States created a

“dummy” arrest segment with the infor-

mation from the court disposition

record, and three States entered the

court information without any linkage to

a prior arrest segment. The remaining

12 States and the District of Columbia

followed other procedures.

In that same 1-year period, 34 State

repositories received information from

corrections agencies that could not be

linked to arrest information in the crimi-

nal history record. When States

received correctional information for

which there was no underlying court

information, 25 States imputed a

conviction for the record. Nineteen

States and the District of Columbia

reported that they did not enter a

conviction on the record based on

information from corrections agencies.

When information from corrections

agencies cannot be linked to an arrest,

the information is not entered into the

Improving Access to and Integrity of Criminal History Records

Recommended Voluntary Standards for Improv-

ing the Quality of Criminal History Record Infor-

mation (56 FR 5849).

system in 14 States and the District of

Columbia. Six States create a

"dummy" arrest segment with the

correctional information, and 15 States

enter the correctional information

without any linkage to a prior arrest

segment.

From July 1, 2000, to July 1, 2001, 32

State repositories received information

from final prosecutor dispositions that

could not be linked to arrest informa-

tion in the criminal history record.

When prosecutor information could not

be linked to an arrest, 24 States and

the District of Columbia did not enter

the unlinked information. Six States

created a "dummy" arrest segment

with the unlinked prosecutor informa-

tion, and two States entered the prose-

cutor information without any linkage to

a prior arrest segment.

Common identifiers absent in criminal

history records

The States use a wide variety of identi-

fiers to link disposition information with

the arrest or charging information, and

no single identifier is used by all 50

States.

Forty States and the District of Colum-

bia link dispositions by using a unique

arrest event identifier; 28 States and

the District of Columbia use a unique

tracking number for an individual

suspect; 22 States and the District of

Columbia link dispositions by using the

arrestee’s name; and 16 States and

the District of Columbia link disposi-

tions by using a name and a reporting

agency case number. Certain States

use other identifiers, such as arrest

date, date of birth, or Social Security

number of the arrestee, court docket

number, or charge number.

None of the States require positive

identification that would occur with a

biometric identifier like fingerprints.

Many States unable to link final dispo-

sitions to specific charges

Disposition information in a criminal

record is often not linked to specific

charges or counts. In 33 States and

the District of Columbia, the method

used by the repository to link disposit-

ion information to the arrest/charge

information allows the link to be made

to specific charges or counts, an arrest

cycle. State criminal history record

systems can be compared only with

difficulty if some systems are apprecia-

bly more sophisticated and complete

than others. Dispositions should be

linked to specific charges in all States.

Accurate linkage of dispositions to

criminal records results from proper

use by courts of relevant arrest trans-

action numbers and the courts’ direct

submission of a livescan with the

associated disposition of the arrest.

Courts have indicated a growing inter-

est in utilizing NCHIP funds to

purchase livescan equipment.

BJS sponsors National Evaluation

of NCHIP

In response to the Attorney General’s

June 2001 directive, BJS commis-

sioned a 3-year evaluation of the

National Criminal History Improvement

Program (NCHIP). The two purposes

of the evaluation were —

(1) to measure the performance of

State criminal history records systems

(2) to identify improvement activities

that would be most effective in improv-

ing record completeness.

The evaluation ensured that the

NCHIP grant program more efficiently

addressed strengths and weaknesses

of State criminal history record

systems. Future NCHIP grants will be

targeted to the specific record system

deficiencies identified for each State.

Improving Access to and Integrity of Criminal History Records

The Records Quality Index (RQI) to

measure NCHIP performance

In 2001 BJS began development of a

new criminal records performance

measurement system. The system will

better guide NCHIP provision of funds

and technical assistance to the States.

The records quality index (RQI)

collects and summarizes performance

measures that objectively assess the

relative capabilities of each State's

criminal history record system. The

RQI assigns a system an overall rating

based on a wide variety of perform-

ance measures directly related to

NCHIP objectives.

A State’s RQI can be compared to the

RQI of other States to determine the

relative strength of the State's criminal

history record system. The RQI will

also allow for more specific analysis,

permitting BJS to track the progress of

a State by the score received on each

of its performance measures.

The overall RQI a State receives can

be compared to a national average to

express whether the overall efficiency

of the State's criminal history record

system meets, exceeds, or is below

the impartial summary of all States.

After complete data are received, the

RQI will become an invaluable tool for

identifying the strengths and

weaknesses of each State's criminal

history record system. Using RQI infor-

mation, NCHIP will target funds to

activities that will most significantly

improve a State's RQI, thereby improv-

ing national background check

systems more directly and quickly.

As of March 2004, 34 States have

completed all RQI data submissions.

Another 10 States have made partial

submissions and have demonstrated

substantial progress toward supplying

all RQI data.

Elements of the RQI offer distinct

vantage points

The evaluation for the RQI will break

down a State's criminal history record

system into a wide variety of perform-

ance measures that describe the

system's components, overall

structure, and efficiency.

One measure of the efficiency of a

State criminal history record system is

the average time that elapses before

an arrest report is posted to the crimi-

nal history repository. Other ways a

system's utility can also be assessed

are by the percentage of arrest records

that are linked to dispositions and by

whether State's criminal justice

agencies and the State's judicial

system use common identifiers.

A State will receive a high score on

one component of the RQI if all of its

criminal history records are automated

and will receive a high score on

another component if law enforcement

agencies are connected to the courts

electronically.

The RQI consists of three sets of

performance measures:

input

measures, process measures,

and

outcome measures.

Input measures

describe the compo-

nents of a record system, including the

following: State laws requiring the

fingerprinting of prisoners and trans-

mission of the fingerprints to the State

repository; use of unique tracking

numbers in the records for individual

subjects; and requirements that prose-

cutors submit declinations to the

repository.

Process measures

reflect system

performance, including the following:

procedures followed by the repository

when a link can not be made between

a disposition and an arrest; strategies

employed to ensure accuracy of arrest

data, fingerprints, and final court dispo-

sitions received at the repository; the

average time between the occurrence

of a final felony court disposition and

the entry of data into the criminal

history database; and the automation

and auditing of certain procedures.

Outcome measures

reflect the impact

of the State's system and whether the

records are accessible and complete.

Outcome measures include the follow-

ing: the percentage of dispositions that

cannot be linked to an arrest; the

number of III records available;

backlogs in entering information into

the database; and repository notifica-

tion of prosecutor declinations.

Improving Access to and Integrity of Criminal History Records

Criminal histories integrated with

NIBRS reveal key crime factors

The National Incident-Based Reporting

System (NIBRS) appreciably advances

efforts to learn important details about

crimes in the United States. Beyond

the summary counts of eight offenses

presently collected for the FBI Uniform

Crime Reports (UCR), NIBRS repre-

sents a more sophisticated data collec-

tion system. NIBRS enables State and

local jurisdictions to capture detailed

offense, offender, victim, property, and

arrest information concerning each

crime incident. NIBRS goals are —

• to enhance the quantity, quality, and

timeliness of crime data collected by

law enforcement

• to improve the methodology used in

compiling, analyzing, auditing, and

publishing collected crime statistics.

The broader scope of offense and

offender characteristics also permits

the development of policy-relevant

findings. These findings can describe

the nature and characteristics of

crimes such as gun assaults, domestic

violence, hate crimes, and crimes

against children. Through NIBRS, law

enforcement officials, analysts, and the

public can better understand trends in

more types of crime and in the amount

of harm to victims.

Jurisdictions that have incident-level

reporting systems are more capable of

using crime data for strategic planning,

tactical crime analysis, and manpower

deployment. This ability should result in

more effective use of limited resources

and better crime control strategies.

Incident-level data, such as NIBRS,

provide detailed information on the

contingencies of a crime, including

victim characteristics and conse-

quences for victims. Such data, when

linked to criminal records, would

permit a background check to deter-

mine whether elements of the offense

meet specific prohibitions for firearm

transfer or other factors of concern.

Incident reports would contain the

victim’s characteristics, the victim/

offender relationship, and the

offender’s use of a firearm — estab-

lishing whether the victim was a child

or whether the offense involved

domestic violence.

The FBI and BJS have been active in

assisting the States in meeting the

NIBRS standards and becoming certi-

fied for NIBRS data submission. In

2001 BJS distributed $13 million to 26

States through the NIBRS Implementa-

tion Program to develop and operate

NIBRS-compatible systems.

As of August 2003, 24 States had their

State UCR programs approved by the

NIBRS Certification Board, according

to the FBI's NIBRS Implementation

Coordinator (map). Twelve States were

testing their systems to determine if

they will soon meet certification

standards. Nine States were develop-

ing a NIBRS system, and six (Alaska,

Georgia, Florida, Mississippi, Nevada,

and Wyoming) had no formal plans to

provide NIBRS data to the FBI.

Improving Access to and Integrity of Criminal History Records

Source: FBI, Criminal Justice Information Services Division, Program Support Section,

Greg Swanson, NIBRS Implementation Coordinator.

NIBRS certified

Testing NIBRS

Developing NIBRS

No formal plans regarding NIBRS

NIBRS Status of the States, August 2003

Since 1995 NCHIP has operated under

a broad mandate to improve public

safety by enhancing the quality,

completeness, and accessibility of the

Nation's criminal history record infor-

mation systems. NCHIP has funded

State and local initiatives designed to

improve criminal records and to allow

these records to be used for criminal

justice and authorized noncriminal

justice purposes. Achievements of

NCHIP were highlighted on pages 1 to

A BJS review of the NCHIP program

has concluded that the program’s

resources must be more aggressively

targeted toward bringing the States into

compliance with the Brady Act's provi-

sions. NCHIP must also become fully

responsive to evolving needs for more

extensive and thorough background

checks to protect homeland security.

To reflect these NCHIP management

objectives, five recommended action

items are to be incorporated into

NCHIP:

• obtaining the full participation of the

States in the FBI's Interstate Identifica-

tion Index (III)

• improving State contributions to the

FBI's national databases of prohibited

purchasers

• formally establishing a National

Technical Assistance Center supported

by BJS

• promoting the adoption of a uniform

RAP sheet to standardize records

among the States

• periodic BJS surveys of State criminal

record holdings.

Action item 1: Obtain full State

participation in the FBI's Interstate

Identification Index (III)

Serving as the backbone of the NICS

system, the Interstate Identification

Index (III) is a decentralized index-

pointer system maintained by the FBI

for exchanging criminal history records.

The III connects the FBI’s computer-

ized files with State-level computerized

files. The III contains personal identifi-

ers for more than 48 million offenders.

Federal, State, and local criminal

justice agencies may access it to deter-

mine whether an individual has a crimi-

nal record anywhere in the country.

The III's "pointer" specifies the Federal

or State source that maintains any

relevant record(s). Once a hit is made

against the Index, the subject's data

are automatically retrieved from each

repository and forwarded to the

requesting agency. The FBI estimates

that the III database contains 94% of

the records checked by the NICS;

therefore, it is critical that all States

enter full partnership and contribute

their identifiers for inclusion in III.

States generally enter participation in

the III system in two phases, defined by

the nature of the records that they

agree to provide. For the second

phase, that of full participation, a State

agrees to make its III-indexed records

available to Federal and State agencies

for both criminal justice and noncrimi-

nal justice purposes.

In the second phase the FBI ceases to

maintain duplicate criminal records for

persons arrested and prosecuted in

fully participating States. All users of

criminal history records — for criminal

justice purposes as well as authorized

noncriminal justice purposes — will

obtain records directly from States'

central computerized files or from the

FBI for Federal records.

Fully participating States must meet

minimum standards that relate to

several factors, including the complete-

ness and maintenance of the records,

the presence of fingerprints for each

record, and procedures to respond to

record requests. At yearend 2001 a

quarter or more of the criminal history

records in a majority of States could

not meet those standards.

Opportunities for improving background checks

Improving Access to and Integrity of Criminal History Records

States with low, medium, and high levels of III-accessible records, yearend 2002

Fewer than 50% of criminal history records are accessible through III

50% to 74% of criminal history records are accessible through III

75% or more of criminal history records are accessible through III

Fewer than 50% of criminal history records are accessible through III

50% to 74% of criminal history records are accessible through III

75% or more of criminal history records are accessible through III

Figure 12

At the end of 2002, 22 States had at

least 75% of their records accessible

through III (map). Thirteen States and

the District of Columbia had less than

half of their records accessible through

III. The States and the Federal Govern-

ment will benefit in several ways when

all States become full III participants.

First, the duplicate maintenance of

criminal history records by the States

and the FBI will be eliminated, resulting

in significant cost savings. No longer

will States have to submit to the FBI

fingerprints and charge/disposition data

for all felony and serious misdemeanor

arrests. Instead, States will submit only

fingerprints and textual identification

data for each person's first arrest to

update the III and the National Finger-

print File (NFF). No longer will the FBI

keep records on State offenders and

process fingerprint cards for all State

arrests. Instead, the FBI will maintain

the III, the NFF, and full criminal

records of Federal offenders.

Second, records made available on an

interstate basis will be more complete

for both criminal justice and noncrimi-

nal justice purposes, including the

screening of applicants for certain

sensitive positions. State repository

records are more current than FBI files.

In addition, many States maintain

misdemeanor records that have not

been submitted to the FBI. These

records will become available through

the III system for NICS and other

authorized uses.

Third, certain noncriminal justice users

will enjoy faster response times

because they will be receiving

electronic responses rather than

mailed record responses from the FBI.

These noncriminal justice users may

also benefit from increased efficiency

at the State level resulting from

increased automation and system

improvements preceding III

participation.

Action item 2: Encourage States to

contribute records to the national

databases of persons prohibited

from purchasing firearms: the NICS

Index and National Crime Informa-

tion Center files

A background check for a firearm

transfer involves the use of records

available through the III and two other

databases maintained by the FBI:

(1) the NICS Prohibited Persons Index

(NICS Index), containing records of

persons prohibited by the Gun Control

Act to purchase a firearm — those

dishonorably discharged from the

armed services, persons who have

renounced U.S. citizenship, mental

defectives, controlled substance

abusers, and illegal/unlawful aliens

(2) the National Crime Information

Center (NCIC) Files, containing records

on sex offenders, wanted persons,

convicted persons on supervised

release, and subjects of protective/

restraining orders.

FBI statistics show that States have

contributed infrequently to the NICS

Index and NCIC databases. Protection

of U.S. residents depends on these

databases of prohibited purchasers

being complete and current.

The NICS Index

The NICS Index is divided into six

databases of persons disqualified

under Federal law from receiving

firearms:

(1) the Denied Persons File

(2) the Mental Defectives/Commit-

ments File

(3) the Controlled Substance Abusers

File

(4) the Illegal/Unlawful Aliens File

(5) the Citizenship Renunciates File

(6) the Dishonorable Discharges File.

State law enforcement officials contrib-

ute to only the first four of the six

databases. In the following summary a

State is listed as having contributed to

a database as of February 1, 2003,

without regard to the number of

records involved. Several contributing

States provided fewer than 10 active

records.

Improving Access to and Integrity of Criminal History Records

Jan Jul Jan Jul Jan Jul Jan

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

90,000

Number of State records

2000 2001 2002 2003

In November 2000 Georgia removed 10,869 records from the Denied Persons File, because

they were based on State rather than Federal prohibitors and had been mistakenly entered.

In February 2002 Vermont provided 22,205 records for the NICS Index, and in November

2002 Michigan added 52,698 to the Mental Defectives File.

Source: FBI, Criminal Justice Information Services Division.

Number of State records included in NICS Index, January 2000-February 2003

Figure 13

State law enforcement contributes

to four databases of National Crime

Information Center (NCIC) File

The NCIC system is a nationwide,

computerized database of criminal

justice information. The NCIC File is

divided into eight databases:

(1) the Protection Order File

(2) the Convicted Persons

on Supervised Release File

(3) the Convicted Sex Offender

Registry File

(4) the Wanted Persons File

(5) the Deported Felon File

(6) the SENTRY file

(7) the U.S. Secret Service

Protective File

(8) the Foreign Fugitive File.

State law enforcement officials contrib-

ute to only the first four databases.

Improving Access to and Integrity of Criminal History Records

The NICS Index increased from 3,222

State records in February 1999 to

88,696 in February 2003. Nearly 90%

of this increase can be attributed to

two States. In February 2002 Vermont

added 22,205 records to the Denied

Persons File. In November 2002

Michigan added 52,698 records to the

Mental Defectives File (figure 13).

As of February 2003 few States had

contributed records to the FBI's NICS

Index. The Denied Persons File had

the largest number of contributing

States (12), followed by the Mental

Defectives File (7), the Controlled

Substance Abusers File (3), and the

Illegal/Unlawful Aliens File (2).

Since November 1999 State contribu-

tions to the NICS Index files have

increased for all databases.

NICS database status as of

February 1, 2003:

Denied Persons File contains infor-

mation on persons who have been

denied the purchase of a firearm

under Federal law but for whom

disqualifying information is not

contained in any other file accessed

by the NICS. Federal and State law

enforcement officials are eligible to

enter records. The Denied Persons

File contained 34,904 records contrib-

uted by 12 States. There were 7,514

Federal records in this file.

Mental Defectives/Commitments

File contains information from State

law enforcement officials, the Depart-

ment of Defense, and the Department

of Veterans Affairs. The file includes

persons who have been adjudicated

as mentally defective or have been

committed to a mental hospital.

The Mental Defectives/Commitments

File contained 53,551 records contrib-

uted by 7 States. Federal agencies

have contributed 90,111 files.

Controlled Substance Abusers File

contains information on persons who

are unlawful users of or addicted to

any controlled substance. State law

enforcement officials, the U.S. Coast

Guard, and the Department of

Defense are eligible to enter records

into this file.

The Controlled Substance Abusers

File contained 90 records contributed

by 3 States and 76 Federal records.

Illegal/Unlawful Aliens File contains

information provided by the INS and

State law enforcement officials on

illegal or unlawful aliens. The

Illegal/Unlawful Aliens File contained

151 records from 2 States. Federal

agencies have contributed 2,683,910

records.

NICS Index databases show minimal State contributions

From January 2000 to February 2003,

the number of State and Federal

records submitted to the NCIC

database nearly tripled from 849,610 to

2,289,320. The increase in the number

of NCIC offender records available for

background checks can be largely

attributed to the increases in the contri-

butions to the National Sex Offender

Registry (450% increase) and the

National Protection Order File (220%

increase) (figure 14). Since January

2002 the number of records in each

NCIC file profiled in this report has

increased (figure 15).

NCIC record status as of

February 2003

Protection Order File contains court

orders that are issued to prevent acts

of domestic violence against a person

or to prevent a person from stalking,

intimidating, or harassing another

person.

The Protection Order File contains

754,033 records from 43 States.

Federal agencies have contributed 56

protection orders to this file.

Convicted Persons on Supervised

Release File contains records on

subjects who are put under specific

restrictions during their probation,

parole, or supervised release sentence

following imprisonment.

The Convicted Persons on Supervised

Release File contained 260,556

records from 15 States. There were

three Federal records in this file.

Convicted Sexual Offender Registry

File contains records on individuals

who have been convicted of a criminal

offense against a minor, who have

been convicted of a sexually violent

offense, or who are sexually violent

predators.

The Convicted Sexual Offender Regis-

try File contained 280,329 records from

all States and the District of Columbia.

Improving Access to and Integrity of Criminal History Records

Jan Apr Jul Oct Jan Apr Jul Oct Jan Apr Jul Oct Jan

100,000

200,000

300,000

400,000

500,000

600,000

700,000

800,000

900,000

Convicted person on supervised release

Sexual offender registry

Number of State records

2000 2001 2002 2003

Protection order file

Wanted person

Number of State records in four NCIC databases, January 2000-February 2003

Figure 15

Figure 14

Jan Apr Jul Oct Jan Apr Jul Oct Jan Apr Jul Oct Jan

500,000

1,000,000

1,500,000

2,000,000

2,500,000

Total State NCIC offender records

State NSOR/NPOF records

All other State NCIC records

Number of State records

2000 2001 2002 2003

Number of State NCIC records, sex offender records, and protection orders,

January 2000-February 2003

This file contained 10 records from

Federal agencies.

Wanted Person File contains records

on persons for whom a federal warrant,

a felony warrant, or a serious misde-

meanor warrant is outstanding.

The Wanted Person File contained

857,835 records from all States and

the District of Columbia. Federal

agencies have contributed 42,076

records on wanted persons.

Action item 3: Establish a National

Technical Assistance Center

A National Technical Assistance

Center (NTAC) will ensure that all State

agencies that develop and use criminal

history records are technologically

advanced with compatible information

technology systems. The importance of

system designs which ensure compati-

bility with other systems to facilitate

criminal and noncriminal background

checks has never been more acute.

The NTAC will assist States to have

the capabilities and integration neces-

sary to meet homeland security

concerns — especially in regard to

communications and access to and

security of information. NTAC will help

States to determine whether proposed

systems comply with FBI/NICS partici-

pation requirements and meet other

needs for background checks.

BJS surveys conducted in response to

the Attorney General’s directive

demonstrate a clear need for the

NTAC. The surveys found that

agencies in 46 States rely on manual

rather than automated procedures

while researching missing dispositions.

Of the 46 States, 34 use only manual

systems to locate missing final disposi-

tions. Twelve States rely on both

manual and automated procedures,

and 4 States rely completely on

automated means to obtain missing

final dispositions.

A difficulty that besets State system

development is the continuous need to

replace both hardware and software as

new technology becomes available.

Statewide plans less than a year old

are frequently determined to be

obsolete when the systems become

operational.

The NTAC will provide guidance to

ensure that information technology

systems are appropriate, integrated,

and efficient in the short and long term.

Action item 4: Implement uniform

RAP sheets

Because Federal and State authorities,

as well as private entities, increasingly

utilize criminal history records for

homeland security background checks,

criminal justice purposes, and

noncriminal justice purposes, it is more

important than ever to make those

records as uniform and readable as

possible.

The interstate exchange and interpreta-

tion of criminal history information are

needlessly complicated because the

States and the FBI use different

formats and codes. State criminal

history records often contain symbols,

or notations, commonly referred to as

"flags." Many flags are based on

requirements under State law. When

shown on interstate RAP sheets,

undefined flags can confuse readers.

BJS has long encouraged States to

convert their criminal history records to

the FBI standard interstate RAP sheet

format.

More recently, a national task

force, the Joint Task Force on RAP

Sheet Standardization, determined that

adoption of a uniform RAP sheet by all

States and the FBI would benefit users

of criminal history records. Information

in those records would be more easily

understood, more complete, and more

accurate. Adoption of a uniform RAP

sheet would also provide decision

makers with the ability to combine or

electronically collate criminal records

from multiple sources into a single

chronology of events. The set of data

elements for the uniform RAP sheet is

intended to include all pertinent infor-

mation without overburdening systems

with the collection of extraneous

information.

NCHIP funds should be used to assist

the States in adopting uniform RAP

sheets that contain the following five

elements:

(1) a clearly defined link between an

arrest and the subsequent activities

and dispositions

(2) sufficient information to allow users

to identify each agency that contributed

particular information

(3) a notice of the existence of sealed

information that some users may be

authorized to obtain

(4) computer interfaces to enhance the

quality and efficacy of the criminal

history record

(5) a standard transmission format to

ensure that information from a State

can be easily formatted into the model

presentation format, even if the contrib-

uting State has not adopted the model

format.

Improving Access to and Integrity of Criminal History Records

See,

Increasing the Utility of the Criminal

History Record: Report of the National Task

Force,

NCJ 156922, December 1995.

Action item 5: Survey State criminal

history record holdings periodically

The efficiency of the NICS depends

entirely on the levels of completeness,

accuracy, and accessibility of State

criminal history records. Through the

NCHIP program BJS observes the

performance of State criminal history

record systems. The monitoring identi-

fies the critical areas of improvement

that will have the largest impact on

improving the Nation's record systems.

BJS monitors State record systems

in two ways:

(1) Record Quality Index

The RQI will be used to critically evalu-

ate the strengths and weaknesses of a

State’s criminal history record system.

The RQI will measure improvements

over time based on a several key

performance measures. NCHIP will

use the RQI results to work with the

States and ensure that funds are

directed to the areas of greatest need

in each State. The RQI will ensure

accurate performance measurement

as well as responsive and timely grant

administration.

(2) Survey of State Criminal History

Information Systems

Since 1989 BJS has conducted a

biennial data collection that examines

State criminal history record systems.

This survey provides important details

by State on the level of automation of

State record systems, the level of

disposition reporting and felony

flagging, the timeliness of criminal

record processing, measures of crimi-

nal history record completeness, and

State procedures to ensure the

accuracy and security of criminal

records.

Latest survey findings are available in

Survey of State Criminal History Infor-

mation Systems

2001 <http://www.

ojp.usdoj.gov/bjs/abstract/

sschis01.htm

.> Previous surveys were

completed in 1989, 1992, 1993, 1995,

1997, and 1999.

Improving Access to and Integrity of Criminal History Records

The Gun Control Act as amended

prohibits the sale of a firearm to several

categories of potential purchasers,

including persons who have been

adjudicated as a mental defective or

have been committed to a mental

institution.

Regulations of the Bureau of Alcohol,

Tobacco, Firearms and Explosives

(ATF) define this mental health

category as —

• individuals who have been adjudi-

cated as a mental defective,

meaning —

“(a) A determination by a court, board,

commission, or other lawful authority

that a person, as a result of marked

subnormal intelligence, or mental

illness, incompetency, condition, or

disease:

(1) Is a danger to himself or to

others; or

(2) Lacks the mental capacity to

contract or manage his own affairs.

(b) The term shall include —

(1) A finding of insanity by a court

in a criminal case; and

(2) Those persons found incompe-

tent to stand trial or found not guilty

by reason of lack of mental respon-

sibility pursuant to articles 50a and

72b of the Uniform Code of Military

Justice.”

• persons who have been committed to

a mental institution, meaning —

"formal commitment of a person to a

mental institution by a court, board,

commission, or other lawful authority.

The term includes a commitment to a

mental institution involuntarily. The

term includes commitment for mental

defectiveness or mental illness. It also

includes commitments for other

reasons, such as for drug use. The

term does not include a person in a

mental institution for observation or a

voluntary admission to a mental

institution.”

This appendix examines —

• the number of States that as part of a

background check are unable to

regularly access court orders or invol-

untary commitments for mental illness

• the principal factors that prohibit

mental health information from being

regularly accessed during background

checks

• BJS initiatives to improve access to

State mental health records

• the results of a 2002 BJS survey that

covered the practices of the 14 States

that consult mental health records

during background checks.

Mental health information rarely

included in NICS background

checks

Impediments to the timely identification

of categories of prohibited purchasers

are significant and have been well

documented in recent reports by BJS

and the General Accounting Office

(GAO).

In March 2002 BJS surveyed all State

criminal history repository directors to

determine whether mental health

records were included in the State's

background checks for firearm sales.

Twenty-five States and the District of

Columbia do not serve as points of

contact for background checks, refer-

ring all background checks to the NICS

system. None had contributed mental

health records or any related mental

health information to the FBI for use

during presale firearm checks. Of the

remaining 25 States that serve as

points of contact, 11 do not check

mental health records while conducting

presale firearms checks, and 14 do

(figure 16).

Few States make their mental health

records available to the FBI’s Mental

Defectives File. As of February 1, 2003,

the NICS Index contained records of

the mentally ill or incompetent from

seven States. Michigan provided over

50,000 records, but no other State

contributed more than 30 records to the

file.

To protect the privacy of the mentally

ill, a number of States have opted to

provide records on individuals prohib-

ited from possessing a firearm for

mental health reasons to the FBI’s

Denied Persons File instead of the

Mental Defectives File.

Appendix I Identifying prohibited purchasers:

The mentally ill

Improving Access to and Integrity of Criminal History Records

Continuing Criminal History Records Improve-

ment Evaluation: Final 1994-98 Report,

BJS

report, NCJ 179768, February 2000. (All BJS

reports are available at <http://www.ojp.usdoj.

gov/bjs/abstract/>.)

Survey of State Procedures Related to Firearms

Sales, Midyear 2002,

BJS report, NCJ 198830,

April 2003.

Use and Management of Criminal History

Record Information: A Comprehensive Report,

2001 Update, BJS report,

NCJ 187670,

December 2001.

Opportunities to Close Loopholes in the

National Instant Background Check System,

General Accounting Office, GAO-02-720,

July 12, 2002.

Improving the National Instant Criminal

Background Check System

, General Account-

ing Office, GAO-T-GGD-00-163, June 21, 2000.

Gun Control: Options for Improving the National

Instant Criminal Background Check System

General Accounting Office, GAO/GGD-00-56,

April 12, 2000.

Utah

orth Carolina

New York

53,512

Michigan

Kansas

Iowa

California

53,551

Total

Number of records

contributed to the FBI

Mental Defectives File

before February 2003 States

See 27 CFR 178.11.

Several factors prohibit complete

mental health information from

being accessed during background

checks

State mental health records incomplete

and infrequently automated

A 2002 BJS survey of the States

revealed that the condition of the

mental health record systems often

renders those records unusable for

background checks. Findings include

the following:

• Nearly 40% of the States (18)

reported the lack of an interface

between the State’s mental health

database and the criminal history

repository.

• For 12% of the States (6), mental

health records were incomplete.

• Nearly a third of the States (15)

reported that their mental health

records were not fully automated.

• In 16 States officials reported that

mental health records lacked biometric

identifiers like fingerprints to positively

identify an individual.

Condition of State mental health

records also precludes their transmis-

sion to the NICS Index. The reasons

given for not sharing the mental health

information with the FBI included:

• Incomplete records (8 States)

• Automation issues (30 States)

• No biometric identifiers (15 States).

State privacy laws protect mental

health information

When State officials were surveyed as

to the factors that explain why

complete mental health information

could not be accessed during

background checks, they cited privacy

laws more frequently than any other

factor.

Nearly 40% of the States reported that

State privacy laws prevented access to

complete mental health information

during background checks.

Officials from 30 States reported that

their privacy laws also prevented the

State from providing complete mental

health information to the FBI for inclu-

sion in the NICS Index.

Agencies lack time and resources

access mental health records

In 2002 just over a quarter of the

States reported that they did not have

sufficient time or resources to access

mental health information during

background checks. Just under a

quarter cited insufficient resources as

one factor preventing them from

sharing mental health records with the

FBI.

BJS develops 6 initiatives to widen

access to mental health records

BJS has developed six new initiatives

to assist the States in upgrading their

ability to consult mental health informa-

tion during background checks as

required by the Gun Control Act.

• BJS will formulate an initiative to write

a Model Data Sharing Agreement. This

collaborative effort among the States

and BJS will develop State-specific

proposals for making State mental

health records accessible for firearm

background checks.

• Under the Best Practices Initiative,

BJS will work with selected States to

develop a best practices guide. This

guide will highlight critical issues that

must be addressed before mental

health records can be included in

database searches for disqualifying

information. The guide will describe

State practices in use and will follow up

promising practices that emerge after

the publication of the guide.

• The Mental Health Courts Initiative

will be a collaboration with the Bureau

of Justice Assistance (BJA) to improve

the criminal justice system's supervi-

sion of mentally ill offenders. BJS will

work with BJA and their grant recipi-

ents to improve disposition reporting

for mentally ill offenders.

Improving Access to and Integrity of Criminal History Records

Figure 16

Not a point of contact state. Does not provide mental health information to the FBI's NICS Ind

Point of contact state that does not check mental health records

Point of contact state that checks mental health records

Use of Mental Health Information in Presale Firearm Background Checks, 2002

Citations to privacy laws were provided

by officials from Alaska (Alaska Stat. §

40.25.120), Colorado (Colo. Rev. Stat. §

25-1-1202), New Hampshire (N.H. Rev.

Stat. § 151:13), North Carolina (N.C. Gen.

Stat. § 122C-52), Wisconsin (Wis. Stat. §

51.30), and Wyoming (Wyo. Stat. §

25-10-122)

• BJS will work with the States to

improve reporting to the FBI so that

Federal databases will reflect more

complete information on individuals

prohibited from purchasing firearms

for mental health reasons.

• BJS will expand two data collections

to provide information on the ability of

the States to examine records of those

adjudicated as a mental defective and

of those committed to a mental institu-

tion.

• BJS will more effectively target efforts

to provide NCHIP funds for the

improvement of access to mental

health records.

1. Model Data Sharing Agreement will

be developed

In response to a recent BJS survey,

officials from 11 point-of-contact States

reported that they do not consult

mental health records as part of

background checks for firearm

purchases. In nearly two-thirds of these

States, officials indicated that records

are not consulted because State law or

regulation prohibits access.

One of BJS' statutory mandates is to

"provide for the development and

enhancement of State and local crimi-

nal justice information systems."

part of that mandate, BJS will consult

with the appropriate legal, mental

health, and criminal justice officials to

develop a Model Data Sharing Agree-

ment. Such an agreement would make

State mental health records accessible

for firearms background checks under

the Federal Gun Control Act.

One promising tactical option for the

Model Data Sharing Agreement is to

specify a reporting arrangement with

appropriate State authorities. The State

could submit only the names of those

with prohibiting mental health

backgrounds to the FBI's Denied

Persons File rather than to the FBI's

database of mental defectives. This is

one of many options that simultane-

ously protects the privacy of records of

persons with mental health histories

and enables the States to ensure that

firearms purchases comply with

Federal law.

2. Best Practices series initiated

Because State agencies vary in their

ability to access mental health records

for presale background checks, BJS

will undertake a Best Practices Initia-

tive to highlight promising activities in

an ongoing series of reports.

The Best Practices series will present

profiles of States that can quickly

consult mental health records in

response to a NICS inquiry. Findings

will highlight several critical issues,

among them —

(1) the legal, policy, or regulatory basis

for consulting mental health records

(2) types of mental health records

consulted

(3) whether a centralized State

database exists and which agency

maintains it

(4) which agencies (public, private, or

both) are responsible for contributing

mental health information

(5) procedures that are followed when

a background check is carried out

(6) unexpected problems that arose

after implementation of the system

(7) suggested reforms to improve the

system

(8) contact information for a State

official with responsibility for the system

(9) how issues relating to patient confi-

dentiality were addressed.

BJS will continue to actively report on

the progress made by all States in

accessing mental health information

for firearm presale background checks.

3. Mental Health Courts Initiative

undertaken

In 2000 Congress enacted the

"America's Law Enforcement and

Mental Health Project" to establish

demonstration mental health courts.

These courts exist for improving super-

vision of and delivery of services to

mentally ill offenders.

BJA is administering the Mental Health

Courts Program in collaboration with

the Substance Abuse and Mental

Health Services Administration in the

Department of Health and Human

Services. This program supports

"mental health court demonstration

projects that mobilize communities to

implement innovative, collaborative

efforts to bring systemwide improve-

ments in the way they address adult

offenders with mental disabilities or

illnesses."

In FY 2003 BJA provided over $2

million to establish mental health courts

that provide continuous juridical

oversight and intensive case manage-

ment.

BJS will work with BJA to ensure that

recipients of Mental Health Court

Program grants focus on disposition

reporting. State and Federal authorities

should have accurate and complete

records on persons who fall within the

purview of the Gun Control Act if they

are processed through the mental

health courts.

Improving Access to and Integrity of Criminal History Records

42 USC § 3732 (18).

America's Law Enforcement and Mental Health

Project, Pub. L. No. 106-515, 114 Stat. 2399

(2000).

BJA, Mental Health Courts Project Program

Competitive Grant Announcement, 2002 at 4.

See also, BJA,

Emerging Judicial Strategies for

the Mentally Ill in the Criminal Caseload: Mental

Health Courts in Fort Lauderdale, Seattle, San

Bernardino, and Anchorage.

(NCJ 182504) April

2000, reprinted February 2001.)

4. Improved State reporting to the FBI

encouraged

In 2002, 2 of the 14 point-of-contact

States that check mental health

records prior to the sale of a firearm

forward denial information to the FBI

for the Denied Persons database in the

NICS Index. State officials from the 12

States not submitting denial information

to the FBI provided reasons that fall

into three categories:

State law or regulations prohibit the

transmission of this information to

the FBI (6 States): State officials from

California, Connecticut, Nevada,

Oregon, Pennsylvania, and Wisconsin

reported prohibition of transmitting

mental health data. Oregon officials

cited State confidentiality agreements

with mental health agencies. Although

Illinois law does not prohibit disclosure,

officials reported that they do not

provide these denials to the FBI

because State law does not require

them to do so.

Requisite technology is not in place

to reliably submit denial information

based on mental health records to

the FBI (3 States): Respondents from

Washington, Wisconsin, and Hawaii

noted that they currently do not have

the technology to reliably submit

denials based on mental health records

to the FBI.

States need administrative reforms

and improved interagency coordina-

tion (3 States): Nebraska and

Washington officials indicated that the

current fragmented nature of conduct-

ing firearms purchases and issuing

firearms permits prevents State

officials from providing denial informa-

tion from mental health records to the

FBI. Utah officials stated that defen-

dants who are involuntarily committed

generally have their commitments

overturned after responding to treat-

ment, and these changes in status are

not reliably reported to other State

agencies or the FBI.

To address these problems, BJS will

request that State repositories and their

data suppliers code court orders which

commit offenders to mental institutions

as dispositions of arrests on the offend-

ers’ RAP sheets. Those dispositions

are to be maintained on the III-

accessible record as well. BJS will also

continue to encourage States to trans-

mit information on firearm purchase

rejections or commitments to mental

institutions to the NICS Denied

Persons File for inclusion in the

national NICS checks. This will remain

a high priority for the FY 2004 NCHIP.

5. BJS improves data collection

concerning the mentally ill

Two BJS surveys obtain information on

States’ ability to examine records of

persons adjudicated as mental defec-

tives or committed to mental institu-

tions. In response to Attorney General

Ashcroft's June 2001 directive to BJS,

BJS followed up on the Survey of State

Procedures Relating to Firearms Sales

and the Survey of State Criminal

History Information Systems. These

improvements will permit BJS to better

inform policymakers about State efforts

to examine mental health records

during background checks.

The Survey of State Procedures

Related to Firearm Sales is an annual

national survey produced by the BJS

Firearm Inquiry Statistics (FIST)

project, a component of NCHIP. The

FIST project was established in 1995 to

collect data that describe the scope

and impact of firearm background

checks required under Federal or State

law. Survey reports have been

published annually since 1996. Infor-

mation is collected from hundreds of

Federal, State, and local agencies,

including law enforcement organiza-

tions, statistical analysis centers, and

legislative research bureaus.

The current survey asks point-of-

contact States to indicate whether they

access a statewide mental health

database when conducting a

background check for a firearms

transfer. The follow-up survey will

examine the complicated issue of how

a State handles information about

persons adjudicated as mental defec-

tives or committed to a mental institu-

tion.

The follow-up survey will —

• Gather more detailed information

about procedures used to check

mental health records, the level of

automation of these records, the nature

of the impediments to checking mental

health records, and initiatives planned

or underway to consult these records.

• Add questions about the nature of the

database of those States checking

mental health records from a central-

ized database.

The Survey of State Criminal History

Information Systems is a biennial

survey of all directors of State criminal

history repositories. The initial survey

in this series was administered in 1989.

The survey is the primary source of

information on the size, level of

automation, and shareability of criminal

history record holdings in each State.

It provides details of the procedures

by which State repositories receive

and process criminal history informa-

tion including arrests, correctional data,

and disposition data.

Survey enhancements will include the

following:

• For those States that serve as points

of contact for background checks,

information will be obtained on the

centralized State databases that are

utilized to consult records of those

adjudicated as a mental defective and

those committed to a mental institution.

Improving Access to and Integrity of Criminal History Records

Analysis of results will address the size,

level of completeness, and accuracy of

these databases. If databases are

described as incomplete, follow-up

questions will ascertain the reasons for

the incompleteness and the remedial

measures being undertaken, if any.

• To assess the accuracy of these

databases, the survey will examine

how often the databases are audited to

remove items such as overturned

judicial findings of mental illness. For

States that do not serve as points of

contact for background checks, the

follow-up will examine which State

agencies maintain mental health infor-

mation and the impediments to trans-

mittal of this information to the NICS

Index.

6. Technical assistance for improving

access to mental health records

provided to States

A longstanding priority of NCHIP has

been establishing the infrastructure to

support full implementation of the

NICS. BJS has strongly encouraged

States to improve access to mental

health records, stressing its importance

through its annual NCHIP announce-

ments and communications with the

States.

BJS will make NCHIP funds available

for three related purposes:

(1) To support of the

Best Practices

Initiative

for the replication of projects

featured in the Best Practices report

and the bulletins describing promising

activities.

(2) To support the

Initiative to Improve

State Reporting to the FBI

to remove

the technological impediments to report

denials based on mental health

disqualifiers.

(3) To directly assist the States in

designing and implementing an array

of new programs, policies, and

technologies to upgrade capabilities

to search mental health records.

BJS will also encourage States that

have few automated mental health

records to use NCHIP funds for the

automation of mental health records.

States will be encouraged to establish

processes that enable courts to

automatically update a defendant’s

criminal record if the offender is adjudi-

cated mentally incompetent or not

guilty by reason of insanity.

BJS surveyed States that search

mental health records in

background checks

In 2002 BJS conducted an in-depth

survey of all 14 States that include

mental health records in database

searches before transfers of firearms.

This survey examined a number of

issues relating to these States' proce-

dures for checking mental health

records, including the following:

• how the authority to check mental

health records was initially obtained

• which agencies maintain the

information

• which entities provide it

• whether the mental health records are

maintained in a central State database

• whether an agreement exists between

the State repository and the mental

health care providers

• information concerning the types of

mental health information checked

• costs of establishing and maintaining

the system

• improvements that are needed to

make the system more effective

• other related issues.

14 point-of-contact States check

mental health records

Of the 25 States that serve as points of

contact (POC’s) for firearm purchases,

the BJS survey found that 14 include

State mental health records in the

search prior to the transfer of a

firearm.

The POC States that include

mental health records in their presale

firearms checks are California, Illinois,

Michigan, Pennsylvania, New Jersey,

Virginia, Connecticut, Georgia, Hawaii,

Nebraska, Oregon, Utah, Washington,

and Wisconsin.

The 11 POC States that do not check

mental health records are New York,

Arizona, Colorado, Florida, Indiana,

Iowa, Maryland, Nevada, New

Hampshire, North Carolina, and

Tennessee.

The remaining 25 States and the

District of Columbia do not serve as

POC’s. None of these jurisdictions

contributes mental health records or

any related mental health information

to the FBI for use during presale

firearm checks.

On average, the 14 States that

examine mental health records prior to

sales of a firearm have over 7 years of

experience in conducting these checks.

The States with the most experience

are Hawaii (18 years), California (11

years), Illinois (10 years), Virginia (9

years), and Washington and Wisconsin

(8 years each).

The BJS survey asked the State

repository directors to characterize

their State's mental health records

on the basis of —

(1) accuracy

(2) timeliness

(3) accessibility for a firearms check

(4) completeness.

Most State repositories rated their

records as "very good" or "excellent"

in each of the four criteria. The Califor-

nia, Georgia, Illinois, and New Jersey

repository directors rated their mental

health records as generally "excellent."

Repository directors for Connecticut

and Utah rated their mental health

records as generally "very good."

Three of the State repository directors

rated their mental health records as

"poor" on one of the criteria. Directors

in Oregon and Nebraska characterized

Improving Access to and Integrity of Criminal History Records

National Criminal History Improvement

Program Fiscal Year 2002 Program Announce-

ment,

NCJ 192811, February 2002.

For this survey, the designation "POC State"

covers States conducting presale checks for all

firearms or for only certain firearms that are sold

in the State.

the timeliness of their mental health

records as poor. Virginia reported the

accessibility for a firearms check to be

poor.

The survey asked State officials to

provide a comprehensive assessment

of the State's program to allow mental

health information to be checked prior

to the sale of a firearm. Respondents

from Michigan and Nebraska com-

mented that the process is burden-

some on personnel and costly in terms

of human resources and technology.

In contrast, survey respondents from

California, Georgia, and New Jersey

indicated that their systems work well

and perform a valuable public service.

In California from 1991 through Febru-

ary 2002, more than 3,100 individuals

were denied the purchase of a firearm

due to a pre-existing mental health

diagnosis that the individual was a

danger to himself or others.

Repository directors recommended

reforms for checks of mental health

records

The survey asked the 14 State reposi-

tory directors what could be done to

make their checks of mental health

records more efficient. Recommenda-

tions included —

• greater automation of records so that

checks may be conducted online

• permit courts, public and private

mental health facilities, and other

mandatory reporters to submit data

about prohibited persons in Internet-

based real time reporting to the State

database

• permit interstate access to the mental

health information by State officials

• broaden the scope of mental health

databases to include private mental

health facilities

• standardize the process for obtaining

and maintaining records, removing

inconsistent requirements among

States

• add positive identifications of mental

health patients, such as a fingerprint or

other biometric identifier.

States check different types of

mental health information

Each of the 14 POC States that consult

mental health records conducts a

check of adjudicated commitments, in

which individuals were committed after

a hearing by a judge or a specially

appointed officer or board.

Apart from the category of adjudicated

commitments, the mental health infor-

mation that is checked during investi-

gations of firearm purchasers varies

among the States.

Number of

Type of record

States checking

Persons found not guilty

by reason of insanity or

diminished mental capacity 8

Persons found guilty

but insane 7

Guardianship records based

on mental incompetence 5

Persons voluntarily committed

to a mental hospital 4

California included in its check of

mental health records information on

individuals who have communicated

serious threats of violence to a licensed

therapist.

States vary approaches for

checking mental health records

Ten of the 14 States maintained a

central database of mental health

records. Agencies supporting or

managing these databases are the

State police (Michigan, Pennsylvania,

and Virginia), State mental health

department or department of health

(Connecticut, Hawaii, New Jersey, and

Washington), criminal justice agencies

(California and Georgia), and the

Department of Human Services

(Illinois).

Some State databases collect informa-

tion on mental health records only from

publicly-funded facilities while other

States include private facilities as

contributors. In Hawaii only the publicly-

funded mental health facilities contrib-

ute information to the State database.

Other States collect from public and

private mental health facilities (New

Jersey and Washington) as well as

public mental health care psychiatrists,

psychologists, and counselors (Califor-

nia, Oregon, and Illinois). Connecticut,

Georgia, Michigan, and Virginia receive

mental health information only through

the courts. Under Pennsylvania law

mandatory reporters include judges of

the Courts of Common Pleas, mental

health administrators, and mental

health review officers.

Several States noted that 100% of the

individuals within the State database

would be prohibited from purchasing a

firearm in the State. However, most

States were unable to estimate what

percentage of the State's mental health

patients are included in the central

database.

State databases of mental health infor-

mation are updated frequently. Only

one State (Oregon) updates its

database in real time. Eight States

update their mental health databases

daily (California, Connecticut, Georgia,

Hawaii, Illinois, Michigan,

Pennsylvania, and Virginia). New

Jersey updates its mental health

database on a weekly basis.

Of the four States without a centralized

database, Utah and Wisconsin gener-

ally maintain their mental health infor-

mation in the courts, while Nebraska

uses the courts as well as State

commissions and individual mental

health facilities. Oregon relies on

several databases maintained by

various State agencies including the

State mental health department.

Improving Access to and Integrity of Criminal History Records

Informal relationships link State

criminal record repositories

and mental health agencies

A formal agreement, such as a

memorandum of understanding signed

by a State's criminal history record

repository and mental health providers,

can govern submission of mental

health information for determining eligi-

bility to purchase a firearm. In only

Georgia, New Jersey, and Oregon

does such an agreement exist, the

result of negotiations between the

affected agencies. The remaining 11

States reported no formal agreement.

Seven States indicated that State

administrative regulations or internal

policies governed the transfer of

mental health information. Four of the

14 States (Illinois, Michigan, Nebraska,

and Wisconsin) responded that no

such administrative regulations existed.

Most States can restore right to

possess firearms to individuals

disqualified for mental health

reasons

In 8 of the 14 States, a prohibition

against a firearm purchase based on a

mental health disqualification may be

lifted once a court or other adjudicatory

body restores a "non-mental defective"

status to the individual. These States

are California, Connecticut, Michigan,

New Jersey, Pennsylvania, Utah,

Virginia, and Wisconsin.

In California certain individuals are

prohibited from purchasing firearms for

life pursuant to Federal law. For other

individuals the prohibition may be lifted

under certain circumstances, such as

release from a mental health treatment

facility or successful completion of the

court's restoration process. The major-

ity of prohibitions in California's central

database last 5 years.

In Georgia and Illinois the prohibition

against purchasing firearms lasts for 5

years after discharge from a treatment

facility. In Virginia the prohibition may

be lifted upon an individual's release

from a mental health facility. Nebraska

and Oregon are the only States to

report that the prohibition against

purchasing firearms is permanent.

Legislation served as the primary

source of authority for examining

mental health information

In almost all of the States (12 of the

14), the authority to use mental health

records as disqualifying information

came from the State legislature. Only

Nebraska and New Jersey cited other

sources of authority.

In half the States the criminal record

repository was involved in drafting the

legislation. The legislation generally

came about from a gradual recognition

of the need to examine mental health

records. Only Connecticut reported that

State legislation was enacted as a

result of a single high-profile incident.

Most mental health information

mailed to the repository

Five of the 14 States transmit mental

health information to the criminal

history repository or firearms process-

ing agency online or by some other

automated method (Connecticut, Michi-

gan, Oregon, Utah, and Wisconsin).

Ten of the States mail hard copies or

tapes of the mental health information

to the repository at regular time inter-

vals (California, Georgia, Illinois, Michi-

gan, Nebraska, New Jersey,

Pennsylvania, Virginia, Washington,

and Wisconsin). Although a few States

utilize more than one mode of trans-

mission, most do not.

All State repositories have adopted

security measures to protect mental

health information

All State repositories reported security

measures to ensure that only person-

nel determining firearm eligibility have

access to the mental health information

in the repository. Two States provide

for broader access. In California law

enforcement personnel are granted

access to the information under statu-

torily specified conditions limited to

criminal investigations that involve the

carrying or use of a firearm. In Pennsyl-

vania the subject of the record and law

enforcement officials who enforce

State firearm laws are provided access

to the mental health records in the

repository.

In addition to personnel restrictions,

each State repository reported system

security measures such as firewalls,

password-protected information, and

employee identification checks to

prevent unauthorized parties from

accessing the mental health informa-

tion.

State repositories often use quality

control measures to ensure the

accuracy, completeness, and timeli-

ness of the mental health information

received. Most of the States (11 of the

14) conduct a manual review of the

incoming data or a manual review of

the data prior to making an eligibility

determination. Five States (California,

Hawaii, Illinois, Michigan, and Oregon)

rely on computers to edit and verify the

information. The Hawaii and Illinois

repositories conduct regular audits of

the system to ensure quality control.

Improving Access to and Integrity of Criminal History Records

In the event of a breach of quality

control, such as a complaint concern-

ing the unauthorized release of infor-

mation or mistaken identity, most of the

States (10 of 14) provide a mechanism

by which the complainant can formally

appeal the error. These complaints are

handled through an appeals process in

California, Connecticut, Georgia,

Hawaii, Illinois, New Jersey, Oregon,

Utah, Virginia, and Wisconsin. There is

no appeals process for quality control

breaches in Michigan, Nebraska, and

Pennsylvania.

States overlap concerning the identifi-

ers used with mental health records.

Nearly every State used the subject's

name, date of birth, Social Security

number/driver's license number, race,

and gender. Other identifiers include

the adjudication date (Virginia), admis-

sion date (New Jersey), date of

commitment (Pennsylvania), case

number (Michigan), patient identifica-

tion number (Illinois), address (Illinois),

facility name/number (Illinois and New

Jersey), physical description

(California, Virginia, and Wisconsin),

and charge code (Michigan).

11 States provide appellate review

of denials of firearm purchase due

to mental health history

Eleven of the 14 States have estab-

lished an appeals process for prospec-

tive firearms purchasers who are

initially denied access to a firearm

because of a disqualifying mental

health history. These States are

California, Georgia, Hawaii, Illinois,

New Jersey, Oregon, Pennsylvania,

Utah, Virginia, Washington, and

Wisconsin. The three that do not

provide appellate review of these

denials are Connecticut, Michigan,

and Nebraska.

Costs for accessing State mental

health information varies across

States

The costs of developing and maintain-

ing access to State mental health infor-

mation depend on a number of factors

including the following:

• the State's regulations concerning

access to and use of mental health

records

• the size of the State's mental health

population

• the presence or absence of proce-

dures to lift the firearms prohibition

based on a mental health disqualifica-

tion

• the presence or absence of inter-

agency agreements

• the level of automation of the State's

mental health records.

Cost estimates to develop systems to

access mental health information range

from "minimal cost" (Wisconsin) to

$800,000 (California). Six States

provided cost estimates between these

two. Systems development cost

$150,000 in Connecticut, $80,000 in

Oregon, $54,000 in New Jersey,

$25,000 in Nebraska, $10,000 in

Virginia, and $7,000 in Utah.

Startup costs were higher than antici-

pated in Connecticut, Hawaii,

Nebraska, and Pennsylvania. They

were lower than anticipated in New

Jersey, Oregon, Utah, and Virginia.

Similar variation occurred among State

estimates of annual costs to maintain

these systems. New Jersey, Nebraska,

Virginia, and Wisconsin reported that

annual maintenance costs were negli-

gible while California estimated the

annual cost to be $408,000. Annual

maintenance costs are estimated to be

$30,000 in Hawaii, $10,000 in

Connecticut, $3,000 in Oregon, and

$1,500 in Utah.

The nine States of Connecticut,

Georgia, Hawaii, Illinois, Michigan,

Pennsylvania, Utah, Virginia, and

Wisconsin reported that State funds

support the systems by which mental

health information is examined during

a firearms background check. These

States rely on both long-term and

annual appropriations by the State

legislature.

New Jersey and Nebraska reported

relying on Federal funds, while Califor-

nia, Pennsylvania, Oregon, and

Wisconsin finance all or part of their

systems through fees.

State systems that access mental

health information report success

Most States report no significant opera-

tional changes in the systems that

provide the State repositories with

mental health information.

Illinois improved their system by incor-

porating more professional mental

health consultants. Utah officials added

an audit feature to permit the courts

and the Department of Public Safety to

compare and verify information on a

weekly basis. California officials

reported that corrective legislation was

required to eliminate duplicative

reporting.

Improving Access to and Integrity of Criminal History Records

The Gun Control Act as amended

prohibits the possession of a firearm

by individuals who have been convicted

of a misdemeanor crime of domestic

violence. According to ATF regulations,

misdemeanor crime of domestic

violence

means —

“a Federal, State or local offense that:

• Is a misdemeanor under Federal

or State law or, in States which do

not classify offenses as misde-

meanors, is an offense punishable

by imprisonment for a term of one

year or less, and includes offenses

that are punishable only by a fine.

(This is true whether or not the

State statute specifically defines

the offense as a ‘misdemeanor’ or

as a ‘misdemeanor crime of

domestic violence.’ The term

includes all such misdemeanor

convictions in Indian Courts estab-

lished pursuant to 25 CFR part 11.)

• Has, as an element, the use or

attempted use of physical force

(e.g., assault and battery), or the

threatened use of a deadly weapon

• Was committed by a current or

former spouse, parent, or guardian

of the victim, by a person with

whom the victim shares a child in

common, by a person who is

cohabiting with or has cohabited

with the victim as a spouse, parent,

or guardian, (e.g., the equivalent of

a ‘common law’ marriage even if

such relationship is not recognized

under the law), or a person

similarly situated to a spouse,

parent, or guardian of the victim

(e.g., two persons who are residing

at the same location in an intimate

relationship with the intent to make

that place their home would be

similarly situated to a spouse).

“A person shall not be considered to

have been convicted of such an

offense for purposes of this part

unless:

• The person is considered to have

been convicted by the jurisdiction in

which the proceedings were held.

• The person was represented by

counsel in the case, or knowingly

and intelligently waived the right to

counsel in the case; and

• In the case of a prosecution for

which a person was entitled to a

jury trial in the jurisdiction in which

the case was tried, either (i) The

case was tried by a jury, or (ii) The

person knowingly and intelligently

waived the right to have the case

tried by a jury, by guilty plea or

otherwise.

“A person shall not be considered to

have been convicted of such an

offense for purposes of this part if the

conviction has been expunged or set

aside, or is an offense for which the

person has been pardoned or has

had civil rights restored (if the law of

the jurisdiction in which the proceed-

ings were held provides for the loss of

civil rights upon conviction for such an

offense) unless the pardon, expunc-

tion, or restoration of civil rights

expressly provides that the person

may not ship, transport, possess, or

receive firearms, and the person is

not otherwise prohibited by the law of

the jurisdiction in which the proceed-

ings were held from receiving or

possessing any firearms.”

The Act as amended also prohibits

possession of firearms by individuals

who are the subject of a restraining

order. Federal law defines this prohibi-

tion as a person who —

“is subject to a court order that

restrains such person from harassing,

stalking, or threatening an intimate

partner of such person or child of

such intimate partner or person, or

engaging in other conduct that would

place an intimate partner in reason-

able fear of bodily injury to the partner

or child, except that this paragraph

shall only apply to a court order that

—

(a) was issued after a hearing of

which such person received actual

notice, and at which such person

had the opportunity to participate;

and

(b)(i) includes a finding that such

person represents a credible threat

to the physical safety of such

intimate partner or child; or

(ii) by its terms explicitly prohibits

the use, attempted use, or threat-

ened use of physical force against

such intimate partner or child that

would reasonably be expected to

cause bodily injury.”

Several recent BJS and GAO reports

make clear that domestic violence

misdemeanor conviction records and

restraining orders continue to pose

significant challenges to the NICS

system:

— Use and Management of Criminal

History Record Information: A Compre-

hensive Report, 2001 Update

, (NCJ

187670) December 2001.

— Continuing Criminal History Records

Improvement Evaluation: Final 1994-98

Report

, (NCJ-179768) February 2000.

— Survey of State Procedures Related

to Firearms Sales, Midyear 2002

(NCJ-198830) April 2003.

— Opportunities to Close Loopholes in

the National Instant Background Check

System

, General Accounting Office,

(GAO-02-720) July 12, 2002.

— Improving the National Instant Crimi-

nal Background Check System

General Accounting Office, (GAO-T-

GGD-00-163) June 21, 2000.

— Gun Control: Options for Improving

the National Instant Criminal

Background Check System

, General

Accounting Office, (GAO/GGD-00-56)

April 12, 2000.

Appendix II Identifying prohibited purchasers:

Domestic violence misdemeanants and subjects of restraining orders

Improving Access to and Integrity of Criminal History Records

See 27 CFR 178.11.

18 USC § 922.

The first section of this appendix

examines the principal impediments to

accessing complete domestic violence

misdemeanor records and restraining

orders, including —

• Nonfelon information being generally

unavailable to State repositories

• Unautomated conviction records for

domestic violence misdemeanors

and unautomated restraining orders

• Incomplete records for domestic

violence misdemeanor convictions

and incomplete restraining orders

• Insufficient resources to examine

domestic violence records and

restraining orders

• Problematic case management

for domestic violence

• Complicated Federal definition of

“misdemeanor crime of domestic

violence.”

The final section of Appendix II

presents five new BJS initiatives to

improve access to these records.

States improve access to domestic

violence records

Since 1996 BJS has encouraged

States to use NCHIP funds to flag

records to designate misdemeanor

convictions for domestic violence,

stalking, protection orders, and crimes

against children, the elderly, and the

disabled. Between 1995 and 2002, BJS

awarded over $18.5 million, or 5% of

all available NCHIP funds, to 45 States

and the District of Columbia for the

automating, upgrading, and flagging of

domestic violence records and protec-

tion order files. States have also used

NCHIP funds to develop registries for

protection orders and restraining

orders.

Improving records for domestic

violence offenders will remain one of

BJS’ most important priorities for two

reasons. First, domestic violence

misdemeanants represent a dispropor-

tionately large percentage of firearm

retrieval actions referred to the Bureau

of Alcohol, Tobacco, Firearms, and

Explosives (ATF). Across more than 34

months, 1998-2001, ATF data indicate

that domestic violence misdemeanants

accounted for 14% of all FBI NICS

denials but nearly 26% of firearm

retrieval referrals.

The percentage of retrieval actions

referred to ATF for subjects of a

protection order was not disproportion-

ate. Individuals subject to a protection

order comprised nearly 4% of NICS

denials and 1% of firearm retrieval

referrals.

Second, domestic violence caseloads

have increased in recent years,

strongly suggesting an increase in the

number of domestic violence convic-

tions. According to the National Center

for State Courts, domestic violence

filings increased 12% between 1996

and 2000.

Ten States had increases

of 10% or more in the number of

domestic violence filings between 1998

and 2000: South Dakota (34%), Ohio

(27%), Illinois (21%), Indiana (21%),

Tennessee (19%), Montana (18%),

Michigan (15%), North Dakota (15%),

West Virginia (12%), and Virginia

(11%).

Without better procedures to identify

domestic violence offenders and

persons with protection orders against

them, the threat to public safety will

become more severe as the number of

domestic violence offenders increases.

States hampered in checks for

domestic violence misdemeanants

and subjects of protection orders

Repositories miss domestic violence

misdemeanor records

As of midyear 2002, 36 State criminal

history repositories maintained data

on domestic violence misdemeanor

convictions, and 43 repositories

contained information on restraining

orders.

How complete these

databases are or how frequently they

are updated or audited is unknown.

The lack of comprehensive misde-

meanor arrest and disposition data has

been identified as a major deficiency in

State criminal history record systems.

In many States only suspects charged

with felonies are routinely fingerprinted,

and only their arrests are reported to

the repository for inclusion in a

suspect’s RAP sheet.

Automation remains a problem for

some domestic violence misdemeanor

records and protection orders

In 2002 four States indicated that the

lack of automated misdemeanor

records prevented officials from fully

checking domestic violence

convictions.

Seven States reported in 2002 that

State officials could not retrieve

accurate protection order information

because the records were not fully

automated.

The lack of automation prevents many

States from forwarding these records

to the FBI. Eight States reported that

lack of automated records prevented

them from sending misdemeanor

domestic violence information to the

FBI. In 11 States, officials indicated

Improving Access to and Integrity of Criminal History Records

Opportunities to Close Loopholes,

pp. 18-20.

Examining the Work of State Courts, 2001: A

National Perspective from the Court Statistics

Project,

National Center for State Courts, 2001.

Examining the Work of State Courts, 2001,

p. 42.

Survey of State Procedures Related to Firearm

Sales, Midyear 2002

(NCJ 198830) April 2003.

Use and Management of Criminal History

Record Information: A Comprehensive Report,

2001 Update

(NCJ 187670) December 2001.

that they were prevented from forward-

ing protection order information to the

FBI because the information was not

automated.

Records incomplete for domestic

violence misdemeanors and protection

orders

In response to a 2002 survey, 20

States reported that incomplete

records prevented the State from

retrieving accurate domestic violence

misdemeanor information for

background checks. These records

were incomplete for several reasons,

including the following:

• absence of a flag denoting domestic

violence misdemeanor

• the age of the record

• the lack of a final disposition

• the lack of information about the

victim-offender relationship

• the failure of arresting agencies and

courts to report the information

promptly to the repository

• agency procedures that do not

require fingerprinting misdemeanants.

Twelve States also reported in 2002

that incomplete restraining order infor-

mation made it difficult to conduct

background checks. Most of these

States indicated that restraining order

records were incomplete due to the

courts’ inability to provide the repository

with the necessary information. Other

factors included the failure to have

proper identifiers (such as date of birth)

in the record, lack of automation, and

insufficient resources to process the

information accurately and promptly.

Incomplete records not only complicate

background checks, they also prevent

States from submitting material to FBI

databases, such as the National

Protection Order File. Problems from

incomplete records prevented 15

States from providing domestic

violence misdemeanor information to

the FBI and prevented 13 States from

providing protection orders. Nineteen

States reported that the absence of a

flag in the record prevented the State

from sending domestic violence misde-

meanor records to the FBI.

State checking agencies lack time and

resources

to access domestic violence

records or restraining orders

In 2002 eight States reported that they

did not have sufficient time or

resources to access complete domes-

tic violence misdemeanor information

for background checks. Four states

reported that additional time or

resources were needed before they

could retrieve complete restraining

order information for background

checks.

Officials from five States reported that

insufficient resources were a factor that

prevented them from providing the FBI

with complete domestic violence

misdemeanor information. In 10 States

officials reported that they did not have

sufficient resources to provide

complete protection order information

to the FBI.

Tracking of domestic violence cases

often difficult

Handling of domestic violence-related

cases varies within and between

States. Cases involving domestic

violence may arise from a variety of

divisions within a State judicial system,

such as civil, criminal, juvenile, and

family divisions, as well as from

specialized domestic violence courts.

Case management systems vary in

their ability to track case filings, the

issuance of protection orders, and

documenting case outcomes.

The lack of data on domestic violence

is also related to the legal definitions of

offenses. Recorded offenses may not

include information about the victim.

That information is essential to deter-

mine whether an assault, for example,

occurred between intimate partners,

acquaintances, or strangers.

To better understand how the courts

handle domestic violence cases, in

2002 BJS initiated a study of case-

processing flows through the criminal

justice system for persons charged

with domestic violence offenses.

Representative data from the 75

largest counties will be collected. An

estimated 16,000 domestic violence

cases will be tracked from arrest,

through prosecution, to conviction

and sentencing. Information will be

obtained on the types of sentences

imposed for domestic violence, includ-

ing supervision in the community under

sentences to probation.

Factors affecting the likelihood of

conviction will be documented. Apart

from legal provisions, these factors

may include the following: the victim-

offender relationship, criminal histories

of victim and offender, policies guiding

issuance and enforcement of restrain-

ing orders, prosecutorial policies

regarding domestic violence cases,

and pretrial release and sentencing

practices.

The study’s objective is to determine

whether domestic violence cases are

handled differently from other types of

assault filings. Reporting to criminal

record repositories may be one of the

differences.

Definition of “misdemeanor crime of

domestic violence” complicated

The GAO identified another impedi-

ment to domestic violence misde-

meanor reporting.

The GAO noted

Improving Access to and Integrity of Criminal History Records

Opportunities to Close Loopholes in the

National Instant Background Check System,

pp. 21, 67.

that the Federal definition of "misde-

meanor crime of domestic violence"

presents a unique challenge for States

for at least two reasons:

(1) the law is retroactive in scope

(2) the definition requires information

about court proceedings that may be

available only through manual

research.

For a Federal firearms eligibility deter-

mination to be made, several elements

must be known about the misde-

meanor domestic violence conviction,

including the following:

(1) whether an offender was repre-

sented by counsel or knowingly and

intelligently waived the right to counsel

(2) whether there was a jury trial if the

offender was entitled to one, or

whether this right was intelligently

waived

(3) whether a conviction that meets

these criteria was later expunged or set

aside or was for an offense for which

the offender was pardoned or had

his/her civil rights restored.

According to a 2002 BJS survey, seven

States reported that the complicated

nature of the Federal definition of a

“misdemeanor crime of domestic

violence” prevented the State from

retrieving complete and accurate

domestic violence misdemeanor infor-

mation.

Four States reported that the cumber-

some Federal definition of a “misde-

meanor crime of domestic violence”

prevented the State from sending

complete and accurate domestic

violence misdemeanor information

to the FBI.

BJS has developed 5 initiatives

to improve access to misdemeanor

domestic violence records and to

protection orders:

1. NCHIP will focus on improving the

flagging of domestic violence

misdemeanor records

Since 1996, when a conviction for a

domestic violence misdemeanor was

added to the list of Federal firearm

prohibitors, NCHIP has supported

State efforts to ensure that records of

domestic violence related offenses are

included or "flagged" in criminal history

records. Allowable costs under NCHIP

have included the costs of flagging or

algorithms used for flagging as well as

those associated with the identification

of records to be flagged. Since 1996

NCHIP funds have enabled certain

States to build centralized statewide

domestic violence databases and to

upgrade their records; however, not all

States have done so.

This new initiative will encourage State

officials to place a higher priority on

meeting the challenges posed by

domestic violence misdemeanor

convictions. NCHIP funds will be made

available to the States to allow them to

implement procedures that ensure that

misdemeanor convictions involving

domestic violence are systemically

incorporated into RAP sheets and

made available for use during a NICS

check.

The BJS evaluation of the NCHIP

program will gather systematic data

on techniques used across States to

overcome impediments to identifying

prohibited firearm purchasers. The

evaluation will document changes in

the ability of States to provide such

information to the NICS Index.

2. NCHIP will assist States in

obtaining NIBRS certification

BJS has provided funds under CITA

to the States to promote NIBRS, an

emerging FBI data system designed

to capture detailed offense, offender,

victim, property, and arrest data on

each crime incident. BJS strongly

encourages States to link NIBRS data

on offenders to RAP sheet arrest and

disposition transactions. The victim and

incident characteristics, such as victim-

offender relationship, can thereby be

used in the State’s background check.

The NIBRS system can improve State

criminal records’ identification of

domestic violence offenders. For

example, a criminal record that shows

an assault conviction might be linked

with NIBRS information to identify the

relationship between the victim and

offender, including relationships within

the family (such as spouse, common-

law spouse, and sibling) and outside

the family (such as acquaintance,

ex-spouse, and boy/girlfriend). This

additional information may replace the

tedious manual research currently

required to determine whether a

conviction meets the Federal definition

for a domestic violence disqualifier.

In 2001 BJS distributed $13 million to

26 States through the NIBRS Imple-

mentation Program to develop and

operate NIBRS-compatible systems.

As of August 2003, 24 States had their

State UCR programs approved by the

NIBRS Certification Board.

BJS remains committed to assisting

States in attaining NIBRS certification.

BJS will place a higher priority on its

collaboration with the FBI to reach the

goal of having all States become

NIBRS certified as soon as practicable.

This collaboration will focus on the 14

States testing their systems to deter-

mine whether they may soon meet

certification standards, on the 9 States

developing their NIBRS systems, and

on the 6 States with no formal plans to

provide NIBRS data.

Improving Access to and Integrity of Criminal History Records

3. BJS will improve its data

collections domestic violence

misdemeanors and protection orders

Two BJS surveys examine States'

ability to use data on domestic violence

misdemeanor convictions and protec-

tion orders: the Survey of State Proce-

dures Relating to Firearms Sales and

the Survey of State Criminal History

Information Systems. This initiative will

require BJS to expand upon these

surveys, learning more about the

problems that the NICS faces in check-

ing these records.

In response to the Attorney General's

2001 directive to BJS, BJS has

followed up on the Survey of State

Procedures Relating to Firearms Sales

and the Survey of State Criminal

History Information Systems.

The Survey of State Procedures

Related to Firearm Sales an annual

national survey, describes the scope

and impact of firearm background

checks required under Federal or State

law.

The current survey asks States to

indicate whether they access a state-

wide database for domestic violence

misdemeanor convictions when

conducting a background check for a

firearms transfer. A separate question

asks whether a statewide database for

restraining orders is accessed during

background checks.

BJS has recently supplemented these

questions to gain in-depth information

on—

• State procedures for checking

domestic violence misdemeanor

records and protection orders

• impediments to checking these

records

• whether this information is forwarded

to the FBI

• impediments to transmittal of this

information to the FBI

• whether improvements are underway

or planned to improve the State's ability

to access or use domestic violence

misdemeanor records and protection

orders.

The Survey of State Criminal History

Information Systems is the primary

source of information on the size and

level of automation of criminal history

record holdings by State.

For the States that serve as points of

contact for background checks, BJS

will follow up on the survey to learn

more about the centralized State

databases used for domestic violence

misdemeanor records and protection

orders. BJS will also determine the

size, level of completeness, and

accuracy of these databases.

If databases containing domestic

violence information are described as

incomplete, follow-up questions will

seek reasons for the incompleteness

and remedial measures being under-

taken. To examine the accuracy of

these databases, BJS will determine

whether and how frequently the

databases are audited to remove items

such as expired protection orders.

For those States that do not serve as

points of contact for background

checks, the followup survey will

examine which State agencies

maintain information concerning

domestic violence misdemeanor

convictions and the issuance of protec-

tion orders. Survey questions will also

examine the impediments that prevent

the transmittal of this information to the

FBI’s NICS Index.

4. NCHIP will work to improve

misdemeanor domestic violence

conviction reporting from the courts

The Federal prohibition against

possessing firearms attaches upon

conviction in any court of a misde-

meanor crime of domestic violence.

However, current court reporting

practices do not ensure that misde-

meanor domestic violence convictions

are consistently reported to a State's

criminal history repository.

BJS will encourage States to expend

NCHIP funds to improve accessibility

of domestic violence misdemeanor

records and to improve the reporting of

those records by courts to the reposi-

tory and the NICS Index. Several

States have utilized NCHIP funds for

these purposes in recent years. BJS

will also work with all States to

automate case management systems.

In addition to the provision of NCHIP

funds, BJS will continue its funding of

the Court Statistics Project through the

National Center for State Courts.

The National Center for State Courts

recently developed a Family Violence

Data Reporting Prototype to streamline

the process of classifying, counting,

and reporting family violence cases for

all types of courts. This prototype

assists the court in accurately reporting

whether domestic violence related

elements were present in a case, along

with trial outcome, case disposition,

and sentencing information.

Recent tests of the Family Violence

Data Reporting Prototype revealed

impediments such as courts that

lacked integrated data systems and

jurisdictional problems with the test

cases. Despite these flaws, most

demonstration courts found the proto-

type to be a viable tool.

Case reporting tools such as the

Family Violence Data Reporting Proto-

type will lead to the greater availability

and comparability of information on

domestic violence misdemeanors

5. BJS will encourage States to

increase submissions to the National

Protection Order Database

The contribution of State protection

order records to the FBI's National

Protection Order file is designed to

permit interstate enforcement of

protection orders and allow for more

Improving Access to and Integrity of Criminal History Records

thorough NICS background checks.

A 2002 report from the Department of

Justice's Office for Victims of Crime

estimated that in 1998 the FBI's

national database contained less than

5% of the 2 million protection orders

believed to qualify for entry into the

file.

As of February 2003, the National

Protection Order file held no records

from Alabama, the District of Columbia,

Hawaii, Mississippi, Nevada, New

Jersey, Utah, Virginia, or West Virginia.

In recent years the database has

grown considerably, averaging nearly

200,000 additional records per year.

BJS will undertake a concerted effort to

target non-participating States for

transmittal of protection orders to the

FBI for inclusion in the national system.

Improving Access to and Integrity of Criminal History Records

Office for Victims of Crime,

Enforcement of

Protection Orders,

OVC Legal Series Bulletin

No.4, January 2002, pg. 4.

Through its recent surveys BJS has

learned important details about some

States’ inability to routinely identify

prohibited purchasers of firearms.

Combined with the tragic events of

September 11, 2001, these findings

generated two research questions

about the current capacity to protect

U.S. residents against foreign threats.

How adequate are State procedures in

the event that a Federal immigration

law violator is detained in the custody

of local officials?

The FBI arrested suspected conspira-

tor Zacarias Moussaoui on immigration

charges on August 17, 2001, and

detained him in a Minnesota county jail.

Based on this set of events, do States

have policies to obtain immigration

offenders' fingerprints and promptly

provide them to the FBI, INS, or State

criminal history repository when

Federal officials apprehend the offend-

ers and hold them in a local jail?

BJS commissioned a survey in Novem-

ber 2001 that addressed this issue.

State procedures vary widely concern-

ing these Federal detainees but gener-

ally do not ensure that their fingerprint

information reaches the appropriate

Federal authorities.

The survey found that eight States do

not have policies to take fingerprints

from a Federal detainee charged with a

violation of Federal immigration law

and placed in the custody of local au-

thorities. Eight States and the District

of Columbia have policies to fingerprint

the individual and forward the informa-

tion to the FBI. Twenty-two States have

policies to fingerprint the suspect and

send fingerprint information to the INS.

Are the Nation's criminal history record

systems physically safe from external

threats?

BJS surveyed the States to learn

whether their criminal history records

are adequately protected by backup

databases remote from the repository.

All States reported having backup

systems, and 47 States indicated that

the backup systems were located

offsite from the central repository.

States vary in how they process

Federal immigration law violators

Broad disparities exist among State

procedures in processing individuals

apprehended by Federal officers and

detained locally for violating Federal

immigration laws. In the November

2001 survey of State criminal history

repositories, only Massachusetts

reported that it fingerprints detainees

and forwards the prints to the State

repository, the FBI, and INS (table).

Eight States reported that they do not

have a policy to fingerprint the detain-

ees. In one of the eight, Maryland

officials indicated that if an individual is

detained by

State or local law enforce-

ment authorities

for an immigration

offense, fingerprints are taken,

forwarded to the State repository for a

criminal records check, and then kept

on file.

Fewer than half the States forwarding

fingerprint information to the INS

Twenty-two States operate under a

policy to fingerprint locally held detain-

ees suspected of violating Federal

immigration laws and forward the infor-

mation to the INS. Of the 22 States, 9

forward the information to INS but do

not conduct an in-State criminal history

check or create a permanent record.

Fewer than a fifth of the States

forwarding fingerprints to the FBI

California, Connecticut, Louisiana,

Massachusetts, and the District of

Columbia reported that they collect

fingerprints from detainees held locally

for violating Federal immigration laws

and routinely send them to the State

criminal history repository for trans-

mission to the FBI. Mississippi,

Nevada, Texas, and Virginia reported

sending the fingerprints directly to the

FBI.

Appendix III BJS surveys in the

aftermath of September 11, 2001

Improving Access to and Integrity of Criminal History Records

Wyoming

Wisconsin

West Virginia

Vermont

Washington

Utah

uth Carolina

Oregon

Oklahoma

North Carolina

Ohio

New York

North Dakota

Missouri

Tennessee

New Mexico

Kansas

South D

akot

Pennsylvania

Montana

Idaho

Rhode Island

New Hampshire

Minnesota

Hawaii

New Jersey

Louisiana

Nebraska

Michigan

Dela

ware

Maryland

Distr

ct of Colum

bia

Indiana

Texas

Iowa

Colorado

Maine

Conne

ticut

Arizona

Nevada

Georgia

Arkansas

Kentucky

Mass

achu

setts

Cali

fornia

Alaska

Virginia

Mississ

ippi

Flori

Alabama

Illin

ois

INS and FBI

FBI

INS

INS and FBI

FBI

INS

only

held in local jails

State authorities and —Federal authorities onlyState authoritiesFederal detainees

Fingerprints detainees and sends the prints to —Do not fingerprint

State policies for fingerprinting and conducting background checks

on Federal immigration detainees held in local jails, December 2001

The BJS survey described in this section was

administered before the INS was incorporated

into the Department of Homeland Security as the

Bureau for Citizenship and Immigration Services.

One State in three submitting

fingerprints of Federal detainees to a

State criminal records check

Eighteen States and the District of

Columbia collect fingerprints from

Federal immigration detainees held by

local authorities and then perform a

criminal records check.

Missouri retains the fingerprint and

arrest information in a separate classi-

fication created specifically for Federal

detainees. Seven States and the

District of Columbia have statutory

authority to create a criminal history

record and to issue a State identifica-

tion number for individuals arrested in

the State for violating Federal law.

Two States and the District of Colum-

bia retain the fingerprint and Federal

arrest information in a miscellaneous

file created to store records not

meeting requirements for specific

classifications.

1 in 5 States retaining fingerprints of

Federal detainees in State AFIS.

Twelve States operate under a policy

to retain the suspect's fingerprints in

the State AFIS for subsequent identifi-

cation. In these States no new criminal

history record is created. The States

are Alaska, Arizona, Arkansas,

Connecticut, Delaware, Idaho, Indiana,

Missouri, Nebraska, New Hampshire,

North Carolina, and Vermont.

2 States obtain dispositions of cases

of Federal detainees

Two States reported that they obtain

dispositions for cases involving Federal

detainees in their State by following up

with other agencies. California reported

that the State repository obtains dispo-

sition information from the INS and

Federal courts. Alabama's repository

follows up with the INS to obtain

complete disposition information.

Although all States were surveyed to

determine how they obtained disposi-

tions for cases involving Federal

detainees, most States either indicated

that dispositions are not obtained (14

States and the District of Columbia) or

did not respond (34 States).

State criminal history record

systems respond to security

concerns

The September 11th terrorist attacks

on the United States have forced

Federal and State agencies to

re-examine the security of physical and

information infrastructures. As part of

this effort, BJS surveyed the States to

determine whether the Nation's crimi-

nal history record systems are physi-

cally safe from external threats.

Most States with offsite backup

systems updated frequently

Every State maintains a backup of their

criminal history record system. Forty-

seven States indicated that their crimi-

nal record backups systems were

located offsite from the central reposi-

tory (New Hampshire, New Jersey, and

New Mexico did not).

Data in the State criminal record

repository backup systems are

updated frequently, although improve-

ments could be made in at least 15

States. Six State repositories update

their backup systems in real time

(Alabama, Colorado, Florida, Indiana,

New York, and Oklahoma). Nearly half

of the State repositories (24) reported

that they update their backup systems

daily, and 15 repositories, weekly.

The content of the backup systems

varied among the States

Nearly all of the States (49) reported

that their backup systems contained

automated criminal history records;

however, this does not mean that the

backup systems contained only

automated records. In seven States,

the criminal records repository director

reported that their backup systems

contained only automated criminal

history records. Fifteen States

reported that their backup systems

contained; (1) automated criminal

history records, (2) hard copies of

criminal history records, and (3)

electronic fingerprint images.

Twenty five States reported that their

backup systems contained automated

criminal history records and electronic

fingerprint images. One State reported

that its backup systems contained

automated criminal history records and

hard copies of criminal history records.

One State reported that its backup

system contained only electronic

fingerprint images.

Among the States that include hard

copies of criminal history records in

their backup systems, four States

update those records by creating an

automated version of the record. Six

States had policies to manually add

updated information to the record.

Improving Access to and Integrity of Criminal History Records