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by Arthur L. Bowker, M.A.
[Mr. Bowker is an investigator for the U.S. Department of Labor.]
In a 1993 drug trafficking case in northern Ohio, all factors, including
a computer records check by the arresting agency, indicated that the
defendant was a first-time offender. However, queries by the probation
officer revealed that the defendant actually was a major out-of-State
drug trafficker with numerous prior convictions.
Luckily, the information came to light prior to sentencing, but had the
defendant's criminal history been available from the start, the case
could have been handled differently. Prosecutors would have viewed the
defendant in a much harsher light and could have considered making
enhanced, repeat offender charges.
Based on all Federal and State arrest fingerprint cards processed by
the FBI, officials estimate that two-thirds of the subjects have prior
arrest records. In addition, multi-State offenders--those with both
Federal and State records or arrests in more than one State--make up
approximately 25 to 30 percent of the group.1
Federal, State, and territorial jurisdictions have enacted a variety of
statutes that permit or even mandate upgraded charges or enhanced
sentences for individuals with prior records. In addition, these
jurisdictions often authorize or require that courts impose enhanced
sentences for individuals classified as habitual or repeat offenders.2
Currently, legislatures nationwide are considering or have adopted
mandatory life sentences (commonly known as "three strikes and you're
out" statutes) for repeat offenders. The 1994 Violent Crime Control and
Law Enforcement Act passed by Congress, which mandates life
imprisonment without parole for Federal offenders with three or more
convictions for serious violent felonies or drug offenses, exemplifies
this trend. Two factors influence effective enforcement of these
statutes: The thorough investigation of suspects' criminal histories and
the quality of criminal history records nationwide.
INVESTIGATIONS USING CRIMINAL HISTORY RECORDS
As the 1993 case in northern Ohio illustrates, criminal histories can
prove valuable for identifying and prosecuting repeat offenders. Law
enforcement administrators and prosecutors should view an offender's
prior criminal record as a potential added element of any criminal
charge(s) being considered.
To be most effective, however, an offender's criminal history must be
detected and legally documented in the preliminary investigative stages.
Requirements for legal documentation of criminal histories vary from
State to State, but can include a subject's confession to prior
convictions, certified copies of the journal entries of convictions from
other courts, fingerprint records, and establishment of the functional
equivalent of convictions from other States. Often, investigators
discover a lengthy prior record too late, even after a defendant has
pled guilty to an offense.
This can have a disastrous effect on prosecuting a repeat offender. For
instance, in at least one State, prosecutors must charge suspects as
repeat offenders within 14 days of the arraignment or they are barred
from initiating this sentencing enhancement later in the case.3
Guidelines for Initial Records Checks
Law enforcement administrators should be familiar with their State's
statutes concerning charge and sentence enhancement and the legal proof
required to establish a suspect's criminal history. Such knowledge will
help law enforcement agencies develop general guidelines on the scope
and depth of investigations into criminal histories. Ideally, all of the
following factors should be considered in the development of such
* How serious is the current charge? Is it a felony or misdemeanor? Is
it a violent, property, or victimless crime?
* Can prior convictions/arrests significantly aid the prosecution and/or
enhance the current charge(s) or sentence?
* How recent are prior convictions or arrests?4
* Where did the prior conviction/arrest occur? Is a conviction or arrest
in one State the same as in another? For example, does a battery
conviction in one State equal an assault conviction in another?
* Does the home State's enhancing statute specifically permit using out-
of-State convictions, or must the prosecutor argue that a conviction is
functionally identical or equivalent to an in-State conviction to permit
enhancement of the current charge?5
* Is the prosecutor amenable to upgrading all charges and/or sentences
based on prior convictions or just certain ones?
* What resources does the agency have available? How many workhours can
be spent detecting and documenting a suspect's prior criminal history?
At a minimum, agencies should consider making National Crime Information
Center (NCIC) inquiries using nonbiometric characteristics--name, date
of birth, social security number, etc.--for all felonies and for
offenses that have the potential for felony status. Using the National
Law Enforcement Telecommunications System (NLETS), officers should make
inquiries in any State identified by the Interstate Identification Index
(III), as well as for the States where the subject was born, resided,
and was arrested. Inquiries based on biometric identification, i.e.,
fingerprints, can take days to get results. Eventually, the Automated
Fingerprint Identification System (AFIS) technologies, when fully
operational, will reduce the use of nonbiometric identification because
positive identification will be available in minutes. Until then, using
nonbiometric identifiers can alert officials in the preliminary stages
of an investigation to the existence of a prior record in minutes.
Guidelines for Further Investigation
Not every case merits an indepth followup. With an NCIC printout in
hand, investigators can follow the agency's guidelines to determine
whether to continue the investigation of a subject's prior record.
One two-step decision model provides guidance in this area. In step one,
investigators first consider the seriousness of the current charge and
the type of prior record, i.e., an unexplained arrest (where the
disposition has not been documented in the system) or a conviction. For
example, a current felony charge with a prior enhancing conviction
warrants further investigation, whereas a current misdemeanor charge
with a prior unexplained arrest does not.
If step one indicates the need for further investigation, then the
second step in the model factors in the location and date of the prior
record. For example, a current felony charge with a prior enhancing
conviction that occurred within the arresting State 2 years ago warrants
legal documentation. On the other hand, a current felony charge with a
prior enhancing conviction that occurred across the country 20 years ago
does not. These general guidelines can be refined further based on
prosecutive directives and available investigative resources.
Guidelines for Documentation
Once investigators decide to document a prior conviction for enhancement
purposes, they should use fingerprints to establish that the record
belongs to the subject. Unexplained arrests should be checked either by
teletype or by other means to determine whether they lead to enhancing
convictions or even outstanding warrants. If so, fingerprint cards then
can be submitted to State repositories to verify the subject's identity.
In cases where the central State repositories do not have fingerprint
cards for the arrest or conviction, investigators should check with the
original arresting agency, which might have a duplicate set. In cases
where no fingerprint cards exist, officers should try other methods of
documentation, such as photo identification, any signature the subject
may have made at the time of arrest, witness identification, and
admissions by the subject.
Law enforcement officials should be particularly alert to suspects with
no apparent record whose behavior indicates experience in the system.
Tattoos or other signs of affiliation with groups that glorify criminal
behavior should be questioned. For example, members of satanic groups,
Hell's Angels, Pagans, and prison and other gangs often sport
identifying tattoos, whereas members of other organized crime groups
have been known to wear rings to identify themselves. Further inquiry
with these suspects might reveal prior convictions that previously had
been undetected by records checks.
Where legally permitted, law enforcement officials should consider
obtaining access to a suspect's prior presentence report.6 Several
factors make these reports very helpful for documenting prior criminal
histories. For example, probation and parole authorities generally
become quite skilled at documenting prior criminal records because
courts and parole boards mandate that this area be as complete and
accurate as possible. They also usually have more time than police
investigators to document and investigate an individual's prior criminal
Most presentence reports contain extensive details regarding the dates
and locations of arrests and/or convictions as a juvenile or adult,
actual case numbers, and sentences imposed. Many jurisdictions also
require that defendants applying for probation to be completely truthful
regarding their prior arrests and convictions. In these jurisdictions,
defendants who lie about their prior criminal records could have their
probation application denied, or if granted probation based on false
information, have it revoked at a later date. As a result, presentence
reports might contain more prior offenses than a printout reflects.
Finally, probation or parole authorities might have important
documentation, such as journal entries, regarding out-of-State
convictions. This is particularly true in cases where one State
supervised the offender at the request of another State.
Investigators should consider using court records on recent convictions
supported by fingerprints to establish that an older, unsupported
conviction belongs to a suspect. Specifically, defendants usually have
an opportunity to refute the contents of a presentence report, which
almost always contains a prior record section. Suspects' acknowledgement
in open court to the accuracy of their presentence reports will help
establish that older convictions in the reports belong to them.
Evidence gathered to document prior convictions, such as fingerprints,
booking sheets/photos, court records, and the like, must be handled as
is any other evidence. Officers should take care to establish a chain of
custody to ensure that the information will be allowed as evidence in
court. Obviously, prior criminal history checks provide valuable
information during the course of an investigation. At the same time,
investigators should be aware of the deficiencies that exist in the
QUALITY OF CRIMINAL HISTORY RECORDS
To develop procedures and techniques for investigating criminal
histories, police administrators first must understand the quality and
availability of criminal history records accessible to them. A
computerized format characterizes the state of the art in maintenance of
criminal histories today.
Maintaining and accessing criminal history records also have moved
beyond the concept of a national repository approach, where the FBI
maintained duplicate records of all State offenders, to a national index
systems, known as the III. The FBI maintains III at the national level.
The index contains only personal identification data on individuals
whose complete criminal records are maintained in State and/or Federal
repositories. When fully operational, there will be 51 indexed
repositories where criminal records on an individual might be located.7
When officers make inquiries, III refers them to the location of the
complete criminal history records. For example, in an inquiry regarding
an offender in Oregon, III might reveal prior arrest records in Texas
and Virginia, as well as a Federal record. This information then enables
officers to obtain the complete records through the NLETS for the State
files from Texas and Virginia and the NCIC for the Federal records.8
Significant improvements have been made in the Nation's criminal history
records database since computerization began in the early 1970s, and
this trend should continue into the foreseeable future. Current
inaccuracies in the system present only minor obstacles, not major
impediments, to investigating and documenting prior criminal records of
offenders and should not discourage their use. Understanding the
problems should help investigators avoid frustration and make the most
of the available information.
In 1991, an inquiry into the Nation's criminal history records system
had only a 66-percent chance of locating a criminal record because more
than 8 million records were not computerized. In addition, of the 24
million criminal records on file at the FBI at that time, roughly one-
half of them, computerized or not, did not record the disposition of the
criminal action.9 Such inadequacies adversely affect the Nation's
criminal history records information system.10
In addition, breakdowns in the reporting mechanisms of contributing
criminal justice agencies often produce inaccuracies in criminal history
records. Agencies frequently fail to report information accurately,
completely, and regularly.11 One State's audit of reporting compliance
found that its agencies simply were not reporting, and they demonstrated
a real lack of concern about complying with criminal history reporting
One investigation involving a child molester highlights the problem of
incomplete recordkeeping. In 1986, an NCIC printout obtained during a
presentence investigation of an Ohio man convicted of gross sexual
imposition revealed a prior felony arrest in Texas with no reported
disposition. Contact with a sheriff's office in Texas revealed that the
offender had been convicted and sentenced to probation. Further
investigation uncovered an outstanding probation violation warrant that
had been issued prior to the subject's arrival in Ohio, but the warrant
had never been entered into NCIC.
If the Texas felony warrant had been in the system and the offender had
been stopped for a traffic violation somewhere along his journey from
Texas to Ohio, he would have been picked up immediately. Perhaps the
life of the Ohio child never would have been disrupted so vilely.
Complete and timely record keeping makes a difference.
Missing or Illegible Fingerprint Records
Fingerprint records can provide positive identification of subjects
during criminal history checks. In some jurisdictions, however, officers
issue only citations for minor offenses, serious misdemeanors, and even
some felonies. Unlike when an arrest is made, officers often do not take
fingerprints when they issue citations. The absence of fingerprints
results in incomplete criminal histories and the inability of police to
establish positive identification for use in subsequent court
Illegible fingerprints also contribute to inaccuracies in the criminal
history records system. Changes regarding the acceptance of deficient
fingerprint cards and the new live-scan fingerprinting technology should
alleviate this particular problem.
In addition, AFIS will reduce human error in fingerprint classification,
which cause inaccuracies in criminal history databases. AFIS also will
increase efficiency in classification of fingerprints and identification
of offenders. In 1993, 39 State identification bureaus had AFIS or were
in the process of procuring it. By the turn of the century, all States
probably will have AFIS.14
At the national level, the Integrated Automated Fingerprint
Identification System (IAFIS) is in the early stages of development.
Ultimately, this system will eliminate paper fingerprint cards at every
step of the identification process. The Federal component of IAFIS,
expected to be operational in 1997, will be located at the FBI's
Criminal Justice Information Services Division in Clarksburg, West
Inadequate Equipment and Funding
Unfortunately, the State repositories often suffer from inadequate
equipment and procedures, which contribute to inaccuracies in the
criminal history databases.15 AFIS, live-scan, and card-scan
technologies are expensive, and it will take some time for all agencies
to get them up and running. Procedures, such as periodic audits, that
ensure regular reporting of arrest and disposition information to the
repositories also add costs. Many jurisdictions might have trouble
funding such upgrades to their databases.
Certainly, not all charges warrant indepth investigation and
documentation of a suspect's criminal history. Therefore, law
enforcement officials must consider whether prior convictions or arrests
can aid the prosecution significantly and enhance the current charges or
The decision to invest further resources also must be made based on the
knowledge that America's criminal history records are not 100 percent
accurate and complete. In addition, the wishes of the prose-cuting
attorneys must be considered strongly, for they make the decision on
whether to enhance the final charge using repeat offender statutes.
Society demands protection from harm, especially from criminals who
repeatedly victimize its citizens. By fully exploiting the available
criminal history databases and making maximum use of repeat offender
statutes, law enforcement agencies across the country can stop these
callous criminals from hurting their communities again.
1 Estimates by William H. Garvie, Section Chief, Automated Fingerprint
Processing Section, Identification Division, FBI, cited in Bureau of
Justice Statistics, Statutes Requiring the Use of Criminal History
Record Information, 1991, 1.
2 Ibid., 11-13.
3 D. Roberson, "Courts and the Importance of Reporting" in Bureau of
Justice Statistics, National Conference on Improving the Quality of
Criminal History Records: Proceedings of a BJS/Search Conference, 1992,
4 In some States, only 60 to 80 percent of arrests occurring within
the past 5 years have final dispositions recorded. In addition, older
records might not be supported by fingerprints, making positive
identification difficult. Finally, changes in criminal codes and crime
recording methods over time might make a prior conviction no longer
significant. See, Bureau of Justice Statistics, Survey of Criminal
History Information Systems, 1992, Washington, DC, November 1993, 2.
5 These concepts have been expressed in several Federal court cases
involving 29 U.S.C. 504, such as Illario v. Frawley, 426 F. Supp. 1132
(D.N.J. 1977); Lippi v. Thomas, 298 F. Supp. 242, 246-249 (M.D. Pa.
1969); and Berman v. Local 107 International Brotherhood of Teamsters,
237 F. Supp. 767 (E.D. Pa. 1964). Briefly, courts have held in these
cases that the facts behind a conviction that reflect conduct that is
"functionally identical" or "equivalent" to offenses specifically
enumerated in the statute are covered the same as if they were
enumerated specifically. See, A. Bowker, "Prohibition Against Certain
Offenders in the Labor Movement: A Review of 29 U.S.C. 504," Federal
Probation, March 1994, 55.
6 Law enforcement officials should inquire with their prosecutor's
office regarding how to obtain access to these records.
7 Bureau of Justice Statistics, Use and Management of Criminal History
Record Information: A Comprehensive Report, 1993, 49-50.
8 Ibid 7, 52.
9 Supra note 3.
10 Supra note 7, 30.
11 Supra note 7, 2.
12 G. McAlvey, "Use of Local Agency Audits," in supra note 3, 81.
13 Supra note 7, 10.
14 Supra note 7, 47.
15 Supra note 7, 2.
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