The Uniform Law Commission’s Criminal Records Accuracy Drafting Committee announced its first meeting. The committee will meet in Washington, DC on March 27 and 28. CDIA’s Eric J. Ellman is an official observer to the committee and will be on hand for the meeting.
For now, the committee is still focused on data collection and reporting at the source – the courts and law enforcement agencies. However, based on the materials going in to the meeting, as this committee begins its assent in to the mountains, there continues to be an easy way for it to skid off the road in to the ravine of private sector collection, storage, and use of criminal history information.
In preparation for that meeting, the committee has circulated the following items:
- An Agenda
- An issue paper
- The August 2012 editorial from the New York Times, Accuracy in Criminal Background Checks
- A paper, author unknown, called the Interstate Identification Index (III) National Fingerprint File (NFF). “This publication is intended to answer [questions that occur about the program and the operation] of the III/NFF Program [now] in its third decade of operation.”
- Improving Access to and Integrity of Criminal History Records, U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, NCJ 200581, July 2005, available at http://www.bjs.gov/content/pub/pdf/iaichr.pdf.
- James B. Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 U. St. Thomas L.J. 387 (2006), available at http://ir.stthomas.edu/cgi/viewcontent.cgi?article=1090&context=ustlj.
- Criminal History Records: Additional Actions Could Enhance the Completeness of Records Used for Employment-Related Background Checks, GAO 15-162, Feb. 2015, available at http://www.gao.gov/assets/670/668505.pdf.
A few highlights from the issue paper are noted here:
- “Given the atomized manner in which criminal records are created, collected and disseminated, this is a daunting task. While many organizations play a role in ensuring accurate criminal records, no one entity or jurisdiction has full responsibility and control. Our task is to devise legislation that can encourage improvement in this area.” 1.
- “Over 65 million American have a criminal record.” Citing NELP, 2.
- “…our focus is on ensuring that the underlying records, given their meaningful and lifetime consequences, are as accurate as possible.” 3.
- 2005 SEARCH report
- False positives and false negatives. 4.
- “These errors of omission or incompleteness [from states to the FBI] could inappropriately harm an individual by implication. 4.
- “The alternative to biometric identification, matching on names, date of birth and other indicators that may rely on truthful self-identification, are also fraught with even more problems. These errors of omission or incompleteness could inappropriately harm society by preventing an individual’s record from fully reflecting his contact with the criminal justice system.” 5.
a. Use legislation to encourage and/or embrace national standards.
b. Use legislation to institutionalize the use of both “carrots” and “sticks.”
c. Create a state-level coordinating body, such as a central state repository, with the express responsibility and authority to ensure accurate criminal records (perhaps through application of “carrots” and “sticks”) at both the state and municipal level.
d. Legislatively limit what is reported and prohibit reporting arrest data without disposition data.
e. Legislatively leverage the work of the Department of Justice and the National Center for State Courts which is designed to “[i]mprov[e] the reporting of arrest warrants and criminal dispositions from the courts and other local agencies to state and federal criminal databases.”
f. Respect the funding challenges inherent in improving this system and make the case for its importance.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More