Thursday, April 29, 2010

Criminal history

There is so much misunderstanding of the term “criminal history” it’s almost funny.  Except it’s not.  Lots of organizations pay good money to buy criminal history reports that they rely upon to determine if their employees, volunteers, and so forth have prior arrests and convictions.  They know not, in most cases, what they are actually buying, and how incomplete it may actually be.  They certainly aren’t worthless, but you need to know what you are getting—and what you may be missing.

When someone uses this term “criminal history” they have in mind a list of all the criminal arrests of a person, and the disposition of those cases.  It’s just not that simple, though.  Not all arrests are part of the public record:  if the case is more than a year old, and was dismissed, it won’t show up.  Cases are dismissed for all sorts of reasons other than lack lack of evidence: plea agreements and pre-trial diversion being prime examples. Second, if the arrest was a juvenile, and the case was handled in juvenile court, it won’t show up on a criminal history report.  Third, if the arrest was not accompanied by a ten-print fingerprint card, it won’t appear on State and national criminal history checks—because these are both fingerprint-based. 

That last one—the fingerprint card, is a big one.  Very few people arrested for misdemeanors are actually fingerprinted. That normally happens only when the the defendant is jailed, and in Nebraska, as in most states, misdemeanants are typically issued a citation and released following their arrest, rather than booked into jail.  Thus, the great majority of misdemeanor arrests will not appear on these state and national criminal history records.  Do not make the mistake of assuming that misdemeanors are all minor crimes, either.  Contributing to the delinquency of a minor is a misdemeanor, as is third degree sexual assault, stalking, violating a protection order, impersonating a police officer, and lots of other creepy crimes.  Conversely, rolling back an odometer is a felony.  The misdemeanor-felony distinction is just a rough estimation of the gravity of the crime. 

So, if a defendant is issued a citation and released for a misdemeanor, the arrest will in all likelihood not appear on a State criminal history report, nor will it appear on the individual’s record in the Interstate Information Index—the so-called FBI Rap Sheet.  Likewise, if a defendant makes a voluntary court appearance and is arraigned without every having been fingerprinted in connection with the case, the record won’t appear on a state or national check.  While I think we have this later scenario pretty well under control here in Lancaster County, these voluntary-arraignment-without-being-booked situations are still pretty common around the country, particularly in so-called white collar crimes.  No prints, no record on the FBI Rap Sheet.

Since there is no one-stop-shop for criminal history records, if you really want to know what someone has been arrested for and what happened to the case, a great deal of research is needed. You actually need to check local records, as well as state and national records.  And since you usually can’t be sure of every single locality that the person has travelled to and where he or she has possibly been arrested, you could still miss cases, even when you’ve been quite diligent.  You might not know about the trespassing in Trenton, the window peeking in Poughkeepsie, or the indecent exposure in Eureka, because you didn’t even know the subject had ever been there. 

When you are responsible for doing background checks, a criminal history may be part of your process, but you should never rely on it solely or completely.  It’s not nearly as good as most people think. You can find my advice for checking criminal records online in this document I authored several years ago.  The most important thing to remember is that there is no such thing as a complete criminal history. You are only getting part of the picture, so you cannot rely upon it entirely.  In the final analysis, the old-fashioned tools of background checks are still some of the best. Don’t let your credit card payment to some website purporting to offer criminal history checks be a substitute for personally speaking to references and past employers.

11 comments:

Anonymous said...

So what's the point?

Anonymous said...

The point is obvious, at least to anyone who read the post.

Timmy Fireballs said...

Chief, I agree you can't necessarily get a complete picture from such reports. However, you also can't assume that just because someone has some reported criminal history, that they have more. It's a slippery slope, and assumptions are nothing. How about let the employees performance do the talking and allow a good worker to continue working? Past criminal history isn't necessarily an indicator of future job performance.

Anonymous said...

The point is that lots of employers pay for a service to check a potential new hire's background. This service isn't always cheap and the point is that most assume it is a complete picture of someone's criminal history.

Anonymous said...

In my lifetime I have lost more money to crooked stock and insurance transactions than to burglars and bandits. Several years ago I lost a substantial amount of money that I had invested in a publicly traded stock. I lost most all of my money after the company went into a chapter 11 bankruptcy. In a class action lawsuit after the fact it was discovered that several of the company officers had previous criminal arrests for fraud. It would be nice if the S.E.C made it mandatory for all members of publicly traded company management teams and members of their board of directors to publish a history of their credit and criminal histories. I can insure my car, house or motorcycle against theft but insuring against losses from WHITE collar thieves is almost impossible. Think ENRON, K-Mart, General Motors, WorldComm etc for recent examples.

Gun Nut

Tom Casady said...

Timmy-

Precisely. The other negative impact of over-reliance on criminal history checks is that you may exclude someone who would be a good employee-volunteer-coach-tenant-whatever due to an irrelevant criminal conviction in the distant past.

If you selecting volunteer tutors for children, you certainly don't want to take someone who had a misdemeanor conviction for Contributing to the Delinquency of a Child. But on the other hand, do you want to exclude someone from consideration due to a shoplifting conviction at the age of 20?

If something bad happens, the former would be incredibly embarrassing and damaging, while the later probably would not.

These "instant" computer criminal history checks should not be used as the sole factor in such decisions, and you need to make the best informed decision you can based on your due diligence.

Tom Casady said...

7:50-

Point? I don't need no stinking point.

Anonymous said...

Chief, You make me LOL! Thanks.

ARRRRG!!!! said...

Don't hire James Gilhooly.

Steve said...

If the job applicant has toilet paper wrapped around his/her head, he/she is probably a criminal.

Susie said...

Along with the employee background check, it sounds like you need to go with your "gut" feeling when hiring an employee.