The US has a vital interest in that area of the country. -- Vice President Dan Quayle Referring to Latin America.


PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

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 guidelines:

* 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 activities.

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 system.

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.

Incomplete 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 requirements.12

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 proceedings.13

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 Virginia.

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.

CONCLUSION

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 sentence.

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.

Endnotes

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, 42.

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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from the FBI's 10/95 monthly magazine

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