Improving Access to and Integrity of Criminal …National Instant Background Check System, General...

Bureau of Justice Statistics

U.S. Department of JusticeOffice of Justice Programs

Improving Access to andIntegrity of CriminalHistory Records

Achievements of the National Criminal

History Improvement Program

Missing dispositions in criminal historyrecords

Opportunities for improving backgroundchecks

U.S. Department of JusticeOffice of Justice Programs810 Seventh Street, N.W.Washington, D.C. 20531

Alberto R. GonzalesAttorney General

Office of Justice ProgramsPartnerships for Safer Communities

Regina B. SchofieldAssistant Attorney General

World Wide Web site:http//www.ojp.usdoj.gov

Bureau of Justice Statistics

Lawrence A. GreenfeldDirector

World Wide Web site:http://www.ojp.usdoj.gov/bjs

For information contactNational Criminal Justice Reference Service

1-800-851-3420

U.S. Department of JusticeOffice of Justice ProgramsBureau of Justice Statistics

Improving Access to

and Integrity of Criminal

History Records

Peter M. BrienBureau of Justice Statistics

July 2005, NCJ 200581

U.S. Department of JusticeOffice of Justice ProgramsBureau of Justice Statistics

Lawrence A. GreenfeldDirector

Peter M. Brien, Statistical Policy Advisor, BJS, wrote thisreport. Todd D. Minton, BJS Statistician, verified thefindings. Tina Dorsey produced the report, and Tom Hesteredited it.

Office of Justice ProgramsPartnerships 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 subjectsof restraining orders 33

Appendix III. BJS surveys in the aftermathof September 11, 2001 39

ii Improving Access to and Integrity of Criminal History Records

NCHIP overview

The National Criminal History Improve-ment Program (NCHIP) represents aclose collaboration among the Bureauof Justice Statistics (BJS), State crimi-nal justice agencies, and the FederalBureau of Investigation (FBI). Since1995, this collaboration has improvedthe nation's public safety by enhancingand upgrading the States' criminalhistory records which are used forbackground checks for firearmspurchases, pre-employment checks forcertain sensitive professions, criminalsentencing decisions, and many otherpurposes. The NCHIP program hasfacilitated the development of anational network of State criminalrecords which is available to State andfederal law enforcement officials.

The program has provided direct finan-cial and technical assistance to Statesto develop and upgrade their criminalrecord information systems — includ-ing records of protection orders, sexoffender registries, and automatedfingerprint identification. NCHIP hasbeen instrumental in making theserecords accessible on an interstatebasis through FBI administeredsystems —• the National Instant CriminalBackground Check System (NICS)• the Interstate Identification Index (III)• the National Protection Order File• the National Sex Offender Registry• the Integrated Automated FingerprintIdentification System (IAFIS).

Since 1995 BJS has awarded nearly$400 million to States and Territories.During the period of funding thenumber of criminal history records hasincreased 29% nationwide, and thenumber of automated records availablefor immediate use by law enforcementincreased 35%.

As of December 31, 2001, there werenearly 64.3 million subjects in Statecriminal record files, and 89% of theserecords were automated.

This highlights section presents anoverview of 11 performance measuresfor NCHIP:

• Millions of background checks aresupported by the NICS• The percentage of State criminalhistory records which are automatedhas improved• The number of records that areshareable through the FBI’s III hasincreased• The number of States participating inIII has increased• More law enforcement agencies arereporting arrest informationelectronically• The number of States participating inthe FBI’s IAFIS has increased• More courts are transmittingautomated dispositions• Criminal history information process-ing has become more efficient• The National Protection Order Filehas significantly expanded• The National Sex Offender Registryhas reached record levels• NCHIP has established a frameworkto assist in Homeland Security.

These measures summarize howNCHIP has assisted States in improv-ing criminal history record complete-ness and automation.

The National Instant CriminalBackground Check System (NICS)supports millions of backgroundchecks

NCHIP funds have supported Stateefforts to conduct rapid and efficientchecks under the NICS. In 2001, theNICS supported nearly 8 million checksat the presale stage of firearmspurchases.

Assisted by NCHIP funding, the StateNICS infrastructure made the transitionfrom an interim system to the currentpermanent system. Under the interimBrady system, the chief law enforce-ment officer conducted checks.

Currently States operate backgroundcheck systems of their own (Point-of-Contact States or POC States), relyexclusively on the NICS, or do both.

From the inception of the Brady Act onMarch 1, 1994, to December 31, 2001,nearly 38 million applications forfirearm transfers were subject tobackground checks.

Achievements of the National Criminal History Program

Improving Access to and Integrity of Criminal History Records 1

Data sources for measuringaccess 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 theStates and the FBI to improve theaccuracy and accessibility of criminalhistory records. After passage of the Brady Act, expanded use ofthose records enlarged both BJS'role as administrator of funds toimprove record systems and BJS'role as statistical monitor to meas-ure efficiency and completeness.

The following provided data for thisreport:

• Since 1989 BJS has funded thebiennial Survey of Criminal HistoryInformation Systems, conducted bySEARCH, The National Consortiumfor Justice Information and Statistics.

• In 2001 and 2002 BJS initiatedresearch with the Regional JusticeInformation Service (REJIS) andSEARCH. These collaborations addressed issues related to thecompleteness and accuracy of crimi-nal history records, mental healthrecords, restraining orders, andmisdemeanor domestic violencerecords.

• Upon passage of the Brady Act and creation of NCHIP, BJS initiatedthe Firearm Inquiry Statisticsprogram as part of NCHIP. Theprogram operates through acooperative agreement with REJIS.

Of the nearly 8 million checksconducted in 2001, 98% of applicantswere approved whether the check wasconducted by the State or the FBI(figure 1).1 There are two principal ways to evalu-ate the performance of the backgroundcheck system:• Examine the percentage of appli-cants for a firearm purchase who wereincorrectly prohibited (Error I) • Examine the percentage of personswho were allowed to purchase afirearm who should have been prohib-ited from doing so (Error II).

Error I can be measured by calculatingthe ratio of successful appellants of arejection to the total number of appli-cants to purchase a firearm. In 2002there were 9,500 successful appeals of

rejections from among the 7,806,000applicants that year. This translatesinto an error rate of 0.1%.

Error II can be measured by calculatingthe ratio of firearm retrievals by lawenforcement to the total number ofapplicants to purchase a firearm. In2002 there were 7,400 retrievals due toan incorrect sale to a prohibitedpurchaser against a total of 7,806,000applicants. This also translates into anerror rate of approximately 0.1%.

Among the 136,000 applicants rejectedas prohibited purchasers during 2002,8 in 10 did not appeal the rejection.Among those who filed an appeal,almost 6 in 10 rejection decisions weresustained.

Levels of State criminal recordautomation have increased

There have been notable improve-ments in the automation of State crimi-nal history records since 1995 (figure2). As the number of criminal recordshas increased in recent years, theNCHIP program has helped the Statesto ensure that levels of automationremain high. In 2001, 30 States had atleast 90% of their criminal historyrecords automated, compared to 22States in 1995.

The number of States with relativelylow levels of automation (defined ashaving less than 70% of recordsautomated) declined from 13 States in1995 to 6 States in 2001.

2001 represents the first year in whichmore than half of the States (27)indicated that 100% of their criminalhistory records were automated. In1999, 21 States reported having 100%automation, as did 18 States in 1995.

2 Improving Access to and Integrity of Criminal History Records

Checks conductedby NICS4,248,900

Number of denialsreversed6,300

Number of denialsappealed13,500 (18%)

Number of denialsnot appealed61,800 (82%)

Number deniedfor purchase75,200 (2.1%)

Number approvedfor purchase3,481,700 (97.9%)

Number of denialsreversed3,200

Number of denialsappealed10,400 (17%)

Number of denialsnot appealed50,300 (83%)

Retrievals due toerroneous sale3,400

Retrievals due toerroneous sale4,000

Number of firearmpurchase applicants7,806,000

Checks conductedby POC's3,556,900

Number deniedfor purchase60,700 (1.4%)

Number approvedfor purchase4,188,200 (98.6%)

Figure 1

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

1This 2% rejection rate is consistent with therejection rates from 2001, 2000, 1999, and 1998and during the interim Brady period from 1994 to1998.

Number of records shareablethrough the FBI's Interstate Identification Index (III) hasincreased

The number of Interstate IdentificationIndex (III) records maintained by theStates as compared to the recordsmaintained by the FBI is an importantmeasure of the decentralized nature ofthe background check system. Toensure that criminal history records arecompatible across all States, recordimprovements funded by BJS underNCHIP are required to conform to FBIstandards for III participation. BJS hasdesignated State participation in the IIIas one of the highest priorities of theNCHIP program.

From yearend 1993 to April 2003, thenumber of State records available forsharing under the FBI's III nearlydoubled from 25.5 million to 48.5million. Since 1993 the number ofrecords available for III has beenincreasing at a much faster rate thanthe overall number of criminal records.

In 1993 half of all criminal historyrecords were III accessible, and 70%were in 2001. It is projected that in

2005, more than three-fourths of allcriminal history records will be accessi-ble through the III.

At yearend 2001, 22 States had at least75% of their records accessiblethrough III, and 15 States had 50% to74% of their records III accessible (table above).

Number of States participating in III has increased

As part of NCHIP's commitment toachieving full State participation in theFBI's III system, BJS has used theNCHIP program to encourage allStates to make their records availableto the FBI and other States. In 1989,20 States were members of the IIIsystem. The number of participatingStates grew to 26 in 1993. As of May2003, 45 States were participating in III.

The application for NCHIP fundsrequires nonparticipating States toinclude a discussion of their III statusand a plan for future III participation.


Figure 2

(less than 70%)(70-89%)(90-100%)

1995 1997 1999 20010

10

20

30

LowMed

High

Number of States

States with high, medium, and low levelsof criminal record automation, 1995-2001

High: 90-100% of criminal records automatedMedium: 70-89% of criminal records automatedLow: Less than 70% of criminal records automated

WyomingWest VirginiaVirginiaSouth DakotaSouth CarolinaNorth CarolinaNevada

WisconsinNew MexicoVermontWashingtonNew JerseyTexasUtahNebraskaRhode IslandTennesseeMontanaNorth DakotaPennsylvaniaMississippiNew HampshireOregonMinnesotaMassachusettsOklahomaMichiganMaineOhioMarylandLouisianaNew YorkIowaKentuckyMissouriIdahoKansasIndianaGeorgiaHawaiiIllinoisFloridaDistrict of ColumbiaDelawareColoradoConnecticutArkansasCaliforniaAlabamaAlaskaArizona

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 arereporting arrest informationautomatically

State law enforcement agencies havefrequently relied on the NCHIPprogram to help them transition fromink-based fingerprinting systems toelectronic systems. From 1999 to2003 NCHIP has provided States withapproximately $31 million for Livescansystems and their participation in theFBI's automated fingerprint system.These systems allow fingerprints to bescanned and instantly transmittedelectronically to criminal justiceagencies throughout the State orNation.

Among the 37 States reportingcomplete data, the number of arrestingagencies that electronically transmitarrest information and fingerprintsincreased by more than 2,000 from1997 to 2001 (figure 3). Nationwide,2,594 agencies electronically submittedarrest information in 2001, a substantialincrease from 493 agencies in 1997.

An increasing number of Statesparticipate in the FBI's IntegratedAutomated Fingerprint IdentificationSystem (IAFIS)

NCHIP funds are available to all Statesfor the conversion to IAFIS. As ofMarch 2003, 43 States, the District ofColumbia, and 3 Territories participatedin IAFIS. In fiscal year 2002 NCHIPdistributed over $3.8 million to 19States and the District of Columbia topurchase equipment for the automaticcapture and transfer of fingerprintimages.

More courts are transmittingautomated dispositions

Whether the States can maintaincomplete and accurate criminal historyrecords depends heavily on the abilityof the courts to report final dispositionsautomatically to the criminal historyrepository or court administrator’soffice. For several years NCHIP hasbeen committed to supporting therecord and case management systemsof State and local courts.

From 1997 to 2001 NCHIP fundsassisted nearly 725 courts to developthe ability to report final dispositionsautomatically (figure 4). As of yearend2001, over 2,000 courts were reportingdisposition information electronically,based on 25 States reporting completedata.

As part of NCHIP's support for captureof judicial decisions for criminal historyrecords, participating courts across theUnited States have developed theability to — (1) electronically link fingerprints andother biometric information to disposi-tions and share this information withcorrections and law enforcementagencies(2) provide electronic protectionorder/restraining order files that can beaccessed by law enforcement officersin the field(3) establish and maintain sex offenderregistries(4) convert juvenile records to the adultcase management system(5) establish databases of offender-based information.


Figure 4Figure 3

1997 1999 20010

500

1,000

1,500

2,000

2,500

3,000

Number of agencies

Estimated number of arrestingagencies reporting dispositionsby automated means, 1997-2001

0

500

1,000

1,500

2,000

2,500

Number of courts

1997 1999 2001

Estimated number of courtsreporting dispositions byautomated means, 1997-2001

Processing criminal history information becoming more efficient

Since 1995 NCHIP has assisted Statesin developing and implementingintegrated criminal history recordsystems. Through NCHIP support, newinformation technologies have enabledState criminal justice agencies to sharecritical information more efficiently.The average time required for agenciesto transmit arrest information, finalcourt dispositions, and prison admis-sions to criminal history repositorieshas declined significantly since 1995(figure 5). In addition, these reposito-ries are processing and posting thisinformation more quickly than in 1995.

From 1995 to 2001 the average timebetween an arrest and the addition offingerprints and information about thatarrest to a criminal history record wascut nearly in half from 45 days to 24days. The average time required toreceive, process, and add final courtdisposition information to a criminalhistory record declined more than 30%,from 68 days to 46 days. In 1995 infor-mation about an individual's admissionto prison took an average of 94 days tobe received and then posted to a

record. By 2001 this information wasprocessed 3 times faster, in 31 days.

Despite progress from 1995 to 2001,not all States have adopted integratedor automated systems for transferringcriminal history information. In 2001States were still more likely to transmitinformation through the U.S. PostalService than by electronic or onlinetransmissions.

The National Protection Order Filehas significantly expanded

A 1994 amendment of the Federal GunControl Act made illegal the sale offirearms to persons subject to a qualify-ing protection order. A qualifyingprotection order meets conditions thatrefer to domestic violence. NCHIP hasplaced special emphasis on ensuringthat domestic violence-related offensesand protection orders are included incriminal records. Funds have beenspecifically awarded for development ofState protection order files that arecompatible with the FBI's national file,NCIC National Protection Order File, topermit interstate enforcement ofprotection orders.

The National Protection Order File, thefastest growing national set of criminalhistory records maintained by the FBI,has tripled in size since 2000 (figure 6).On February 3, 2003, the NationalProtection Order File held over 750,000protection orders from 43 States.


1995 1997 1999 20010

20

40

60

80

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 2003Jan Apr Jul Oct Jan Apr Jul Oct Jan Apr Jul Oct Jan

0

200,000

400,000

600,000

800,000

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

The National Sex Offender Registryhas reached record levels

Since 1998, the NCHIP program has assisted States in establishing sexoffender registries which interface withthe FBI's National Sex Offender Regis-try. This assistance has enabled Statesex offender registry information to beobtained and tracked from one jurisdic-tion to another.

The National Sex Offender Registryhas seen dramatic growth in recentyears, from nearly 50,000 records in2000 to over 280,000 records in 2003(figure 7). On February 3, 2003, theNational Sex Offender Registry contained records from every State, theDistrict of Columbia, and 3 Territories.

NCHIP helped to create tools foraccomplishing the work of Homeland Security

A signal contribution of NCHIP hasbeen to assist the States and the FBI inconstruction of a nationwide network ofcriminal history and fingerprintarchives. The contents can beexamined for both criminal justicepurposes (for example, presalefirearms checks) and noncriminaljustice purposes, such as employmentsecurity clearances.

In 1992 State repositories held 36.4million automated criminal historyrecords, and 4 States relied completelyon paper records. Since 1995 NCHIPhas assisted the States' transitiontoward automation, so that in 2001State repositories held 57.4 millionautomated criminal history records. As of March 1, 2003, there were 48.5million criminal records that wereshareable through III.


Jan Apr Jul Oct Jan Apr Jul Oct Jan Apr Jul Oct Jan0

50,000

100,000

150,000

200,000

250,000

300,000Number 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 ofNCHIP has evolved to support theStates in pursuing emerging technolo-gies and new criminal justice prioritiesas identified by Federal and Satepolicymakers.

According to the administrators ofNCHIP, there exist areas of opportunitywhere Federal resources will continueto be needed. Discussed in greaterdetail in the following pages, thesefuture challenges for NCHIP include:

Updating relevant mental healthrecords — BJS has conductedsurveys to examine the status ofmental health records among theStates. Analysis of responses can helpto determine how NCHIP can furtherenable States to make the informationin mental health records available forbackground checks.

Improving access to records fordomestic violence misdemeanorconvictions — Since 1996, whenCongress added conviction for adomestic violence misdemeanor to thelist of Federal firearm prohibitors,NCHIP has worked with the States toimprove access to these records;however, significant challenges remain.Recent BJS surveys examined thepersistent impediments to accessingthese criminal records.

Ensuring that court dispositionreporting systems are automated —All court disposition information shouldbe transmitted electronically usingestablished technologies. The automa-tion of court dispositions will providecomplete and accurate informationelectronically to Federal and Statecriminal justice officials.

Encouraging prosecutors tocomplete criminal history records by reporting their declinations toprosecute — When prosecutorsdecline to prosecute arrestees,frequently the declinations are notadded to the criminal records. Checksof these records require significanteffort to discover whether the arrestedindividual was prosecuted.

Converting older paper records intoan electronic format — Many Statecriminal history record holdings containolder records on paper. Full automationawaits the entering of these recordsinto the system.

Linking criminal history transactionswith NIBRS incident reports — Thislinkage allows criminal history recordsto reflect a wealth of detailed informa-tion concerning the nature and charac-teristics of criminal incidents. Incident-based information allows for betterinformed decisions regarding criminalpunishment, crime control strategies,and policy analysis.

Developing a uniform national crimi-nal history format for RAP sheets —Because of variation in criminal historyrecord formats among the States, theinterstate exchange and interpretationof criminal history information areunnecessarily complicated. The devel-opment and adoption of a uniformformat for RAP sheets will make crimi-nal history information more easilyunderstood across jurisdictions.

Continuing to address privacy andconfidentiality issues as they relateto non-criminal justice backgroundchecks — The ProsecutorialRemedies and Other Tools to end theExploitation of Children Today Act of2003 or PROTECT Act contains provi-sions that will make it easier for privateorganizations that work with children,the elderly, or the disabled to conductbackground checks on volunteers.The PROTECT Act established a pilotprogram that permits volunteer organi-zations to submit 100,000 requests forbackground checks to Federal authori-ties. States will want to ensure thatprivacy and confidentiality protectionsare respected as non-criminal justicebackground checks become moreprevalent.


NCHIP goals

NCHIP remains committed to itsresponsibility to provide Federal assis-tance to State criminal justice recordsystems. That bedrock commitmentremains as the program addressesthese challenges:

• Identify how NCHIP can be moreeffective in promoting the use of Statemental health records duringbackground checks

• Create initiatives to remove impedi-ments to the availability of convictionrecords for domestic violencemisdemeanors

• Continue NCHIP efforts to introducetechnology into all courtrooms so thatdisposition records will be transmittedelectronically to criminal history recordrepositories

• Develop procedures to encourageprosecutors to promptly report declina-tions to the repositories

• Continue NCHIP's encouragement of States to remove backlogs of paperrecords

• Support the development andadoption of a uniform RAP sheet

• Work with States to ensure thatprivacy and confidentiality protectionsare respected as background checksfor noncriminal justice purposesbecome more prevalent.

In a 2001 survey, half the Statesreported that from 10% to over 50% ofthe arrests recorded in State databaseshad no final disposition indicating howthe arrest was resolved. These arreststhat lack dispositions, known as “open”or “naked” arrests, create substantialproblems for time-sensitive backgroundchecks because conducting the neces-sary research to complete the record isoften time consuming, labor intensive,and costly.

BJS examined the scope of missingdispositions as reported by the Statesin a 2001 survey. Factors that contrib-ute to missing dispositions include thefollowing:

• poor communication among thecourts, law enforcement, and correc-tions agencies in providing final dispo-sition information to the State reposi-tory • reliance on the mail and manualresearch rather than on electroniccommunication• repository delays in posting disposi-tion information to a criminal record• persistent backlogs of criminal justicerecords 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 amongStates for handling missingdispositions.

Missing dispositions or “openarrests” an extensive problem

In a 2001 survey, State repositorydirectors were asked what percentageof arrests in their databases had finaldispositions recorded. Six Statesreported that 90% or more of theirarrests had corresponding final disposi-tions. Twenty-three States reported thatbetween 50% and 89% of arrests haddispositions. In nine States less thanhalf of the arrests had final dispositionsrecorded in the databases. TwelveStates and the District of Columbiacould not estimate the percentage ofarrests with dispositions.

The repository directors also reportedthe percentage of arrests occurringwithin the last 5 years (“recent arrests”)that contained final dispositions. EightStates reported that 90% or more oftheir recent arrests had final disposi-tions attached. Twenty States reportedthat between 50% and 89% of recentarrests had dispositions. In 12 Statesless than half of the recent arrests intheir database had final dispositionsrecorded. Ten States and the District of Columbia could not estimate thepercentage of recent arrests withdispositions.

Another measure of the missing dispo-sition problem is the number of finalcourt dispositions in State files that cannot be linked to arrest or charging infor-mation. In 2001, 14 States estimatedthe number of unlinked court disposi-tions. These States reported a total of704,300 final court dispositions on filethat could not be linked to arrest orcharging information, an average ofover 50,000 unlinked dispositions perState.

While 14 States estimated the numberof unlinked final court dispositions, 16States estimated the percentage offinal court dispositions in their files thatcould not be linked to an arrest. Minne-sota and Indiana reported that half oftheir final court dispositions could notbe linked to arrest or charging informa-tion. Wisconsin, Kansas, and Pennsyl-vania reported that between 30% and40% of their final court dispositionswere unlinked. In Michigan andNebraska a quarter of their final courtdispositions had no link to arrest orcharging information. The remainingnine States (Georgia, Maryland,Montana, Nevada, New York, SouthCarolina, South Dakota, Utah, andVirginia) reported that 10% or fewer oftheir final court dispositions containedno arrest or charging information.

Poor interagency communicationcontributes to missing dispositions

Interagency communication can beevaluated in three ways:

(1) by the number of days required forthe court, law enforcement agency, orcorrections agency to report dispositioninformation to the repository(2) by the extent to which criminaljustice agencies rely on manualsystems rather than electronic systemsto transmit disposition information andresearch missing dispositions(3) by whether all criminal justiceagencies are fully aware of their report-ing requirements.

Missing dispositions in criminal history records


Disposition data took over a week onaverage to reach repositories

A leading reason why final dispositionsare not adequately linked to theirassociated arrests is delay by thecourts, law enforcement, and correc-tions agencies in reporting dispositioninformation to repositories (figure 8).Another important reason, processingdelays by the repository, is describedmore fully in a following section.

Court disposition information required3 weeks on average

On average in 2001, it took 21 days forfinal court dispositions to reach theState criminal history repository.2 Thetime required for repositories to receivedisposition information ranged from 1day or less in six States to 80 days inNorth Dakota. Repositories in most ofthe reporting jurisdictions (21) receivedfinal court disposition information within15 days.

The average time required for finalcourt disposition information to reach

the repository steadily decreased from36 days in 1997 and 33 days in 1999.In 2001 final court dispositions reachedthe repository 14 days faster onaverage than they did in 1995; how-ever, as six States have demonstrated,the average time for submission couldbe 1 day rather than 21 days.

Arrest information required 11 days on average

In 2001, as in 1999, arrest data andfingerprints took 11 days on average tobe received by State repositories. Thetime required to receive arrest informa-tion ranged from 1 day or less in fiveStates and the District of Columbia to169 days in Mississippi. In 22 Statesand the District of Columbia, reposito-ries received arrest information within 7days.

In 1995 and 1997 transmission ofarrest information to the repository tookan average of 13 days and 14 days,respectively.3

Corrections information required 9 days on average

In 2001 an average of 9 days elapsedbetween a prison admission and thereceipt of that information by the Staterepository. The time required forrepositories to receive prison admis-sions ranged from 1 day or less in nineStates to 60 days in North Carolina.Repositories in just over half of thereporting jurisdictions (17) receivedprison admission information in 7 daysor less.

In 2001 the average prison admissionreached the repository 5 times fasterthan in 1995, when 45 days wererequired. In 1997 and 1999 prisonadmissions reached the repository in 16 days on average.4

Prosecutor declinations often did notreach repositories

In 2001, 12 States were able toestimate the number of prosecutordeclinations — decisions to drop ormodify charges — sent to the reposi-tory in the prior year. Thirty-two Statesindicated that State law or policyrequired that prosecutorial declinationsbe transmitted to criminal historyrepositories.

Local prosecutors often fail to reportdeclinations to State record reposito-ries. In 2001 five States indicated thatall prosecutorial declinations weretransmitted to the repository. In 1999 three States, and in 1997 six States,reported that all prosecutors’ declina-tions were transmitted to therepository.

BJS, with the American ProsecutorsResearch Institute, is scheduling asurvey to delineate more clearly theprocesses by which disposition infor-mation reaches or fails to reach arepository. The study will examine thefollowing: whether statute, regulation,office practice, or some other authority


Figure 8

0 00 0

0 00

0

0

0 0

0

1995 1997 1999 20010

10

20

30

40

50

Final court dispositions

Arrest information

Average number of days required for repositoriesto receive criminal history information, 1995-2001

Number of days

Prison admissions

4The average number of days for prison admis-sion information to reach repositories was basedon 1995-2001 data from a cohort of 25 States.

3The average number of days for arrest informa-tion to reach repositories was based on 1995-2001 data from a cohort of 40 States and theDistrict of Columbia.

2The average number of days for final courtdisposition information to reach the repositorywas based on 1995-2001 data from a cohort of28 States.

governs the transmission of declinationinformation by prosecutors; whatpenalties (if any) exist for noncompli-ance; the average time from declina-tion to the notification of the repository;and the impediments that exist inreporting declinations promptly to therepository.

Postal services used instead ofelectronic communication

Trial courts provide most of the infor-mation about final dispositions. Crimi-nal history repositories in the 47 Statesand the District of Columbia receivefinal disposition information from trialcourts or the State court administra-tor's office. Fifteen of those reposito-ries receive all the information throughthe Postal Service; 14 repositoriesreceive part of that information by mail.

Thirty-five States request final disposi-tion information from prosecutors. In16 States the repositories receive allinformation from prosecutors by post;in 12 States, part of that information.

Twenty-six States request law enforce-ment agencies to report information onfinal dispositions to the repository. In13 States law enforcement agenciesrely entirely on the Postal Service; in11 States, partially.

Repositories receive final dispositioninformation from appellate courts orcourt administrators in 28 States. Morethan half of these States (15) rely onthe Postal Service for delivery of all thisinformation; five rely on the PostalService for some of the information.

Manual systems used to researchmissing dispositions

A 2001 BJS survey revealed that whileresearching criminal records withmissing dispositions, agencies in 46States rely on manual procedures.Most of these States (34 of the 46) useonly manual systems to locate missingfinal dispositions. Only Colorado,Michigan, Pennsylvania, and SouthDakota fully utilize automated meansto obtain missing final dispositions.

Agencies unaware of their reporting requirements

In certain States the criminal historyrepository does not capture final dispo-sition information because theagencies responsible for providing thisinformation are not aware of all report-ing requirements. Other States reportthat courts and law enforcementagencies are maintaining incomplete or inaccurate statistics on final casedispositions.

Arrest and corrections informationdoes not always reach repositories

The transmission of arrest and correc-tions information to the repository isnot required by law or policy in allStates.

In 39 States and the District of Colum-bia, there are policies to provide therepository with data on the admissionor release of felons from State prison.In 26 States and the District of Colum-bia, there are policies to give therepository information on the admis-sion or release of a felon from a localjail.

Thirty-one States and the District ofColumbia have policies to provideprobation information to the repository,and 30 States and the District ofColumbia have policies to provideparole information.

If an arrestee is not charged with acrime after the fingerprints are submit-ted to the repository, 19 Statesindicated that State law does notrequire that the repository be notified of the failure to charge the arrestee.

Criminal history repositories facechallenges in processing records

Recent BJS surveys have suggestedthat criminal history repositories areencountering several problems includ-ing significant backlogs, older recordsthat have no dispositions, and infre-quent audits to ensure accuracy ofrecords.

The backlogs faced by criminal historyrepositories can be measured in twoways: (1) by the length of time between therepository’s receipt of information andwhen that information is entered into arecord(2) by the number of forms that awaitentry into the record.

By both measures, State repositoriesface significant challenges that mustbe met to improve the NICSbackground check process.


Overall average processing times byrepositories decreased, 1995-2001

Separate from the issues whether therepositories receive final court disposi-tions, arrest information, or correctionalinformation, and whether the receivedinformation is recent, is how well arepository processes information itdoes receive. Many State repositoriesare unable to quickly process criticalinformation and include it in the record,despite progress in recent years (figure 9).

Final court dispositions — Repositoriestook an average of 25 days to processfinal court disposition information andpost it to a criminal record in 2001.The time required to post court disposi-tion information ranged from 1 day orless in 12 States to 330 days inWashington. The majority of respond-ing jurisdictions (23) entered thesedata in 10 days or less.

Average processing time hasdecreased since 1995 and 1997 whenrepositories took 33 and 34 days,respectively, to post final court disposi-tions. In 1999 an average of 24 dayswas required.5

Prison admission information — In2001 an average of 22 days elapsedbetween the repository’s receipt ofprison admission information and theposting of that information to therecord. The time required to postprison admission information rangedfrom 1 day or less in nine States to 90days in Illinois. The majority ofresponding jurisdictions (21) enterthese data in 10 days or less.

The average number of days requiredto post prison admission informationhas declined significantly in recentyears. In 2001 repositories processedand posted prison admission informa-tion in nearly half the time required in1999, when the process took anaverage of 43 days. The averageprocessing time for prison admissionsin 2001 was considerably shorter thanin 1995 and 1997 when processingtook 49 days and 29 days,respectively.6

Arrest information — Repositories tookan average of 13 days to post arrestinformation to a criminal record in2001. Eleven State repositories postedarrest information in 1 day or less.Oklahoma took 180 days — thelongest time period of any State. MostStates (27) posted arrest data in 7days or less.

In 2001 repositories posted arrestinformation to a criminal record in lessthan half the time required in 1995,when the process took an average of32 days.7 In 1997 and 1999 Staterepositories took an average of 31days and 28 days, respectively, toprocess arrest information and post itto a record.


Figure 9

0 00

0

0 0

0 0

0

0

0

0

1995 1997 1999 2001

0

10

20

30

40

50

60

Final court dispositions

Arrest information

Average number of days required for repositoriesto post information to a record, 1995-2001

Number of days

Prison admissions

5The average number of days required forrepositories to process and post final courtdispositions to a record was based on 1995-2001 data from a cohort of 32 States and theDistrict of Columbia.

6The average number of days required forrepositories to process and post prison admis-sion information to a record was based on 1995-2001 data from a cohort of 28 States.

7The average number of days required forrepositories to process and post arrest infor-mation to a record was based on 1995-2001data from a cohort of 41 States and the Districtof Columbia.

Repository backlogs exceed 2.5 million records

In 2001 most States reported that theywere encountering backlogs in enteringcertain criminal history information intoState criminal databases. Twenty-sixStates reported a backlog in enteringarrest and fingerprint information; 27States had a backlog of court disposi-tion forms; and 12 States had abacklog of custody supervision reports.

Repositories in States that couldestimate the size of their backlogs in2001 reported that 2.5 million recordsof arrest, disposition, and custodyinformation were unprocessed or onlypartially processed (figure 10). Thebacklog comprised over 2 million courtdisposition forms, 350,000 fingerprintcards, and 130,000 custody supervi-sion reports.

In 2001 State repository backlogs weresmaller in all three categories of infor-mation than they were in 1995.Compared to 1997, however, the totalbacklog increased 50% in 2001. Mostof the increase after 1997 was

attributable to unprocessed courtdisposition forms, increasing from940,000 in 1997 to approximately 2million in 2001. The number of unproc-essed custody supervision reportsnearly tripled from 1997 to 2001 from46,500 to 134,000. From 1997 to 2001,the backlog of unprocessed fingerprintcards was cut in half from 710,000 to354,000.

The composition of State criminalrecord backlogs remained unchangedin recent years. Since 1995 courtdisposition forms have comprised themajority of State criminal recordbacklogs, followed by arrest fingerprintcards and custody supervision reports.

Because not all States can estimatethe size of their repository backlogs,the true number of unprocessed orpartially processed criminal justicerecords is likely to be higher than theestimates reported here.

Older records on paper or microfilmaccount for large portion of “openarrests”

Many State criminal history recordscontain arrests from several years ago

for which no final disposition wasreported. At the request of BJS, theFBI drew a sample of NICS checksthat could not be completed instantlydue to the presence of “open arrests."More than 75% of the arrests from thissample were from 1984 or earlier.

Audits of criminal history recordsremain infrequent

In 2001, 23 State criminal historyrepository directors reported that theirdatabases had not been audited forcompleteness in the prior 5 years. Anaudit would have told them howaccurate and complete were the crimi-nal histories in their holdings. Over halfof those States (13) reported that theyhad not planned or scheduled a dataquality audit to occur within the next 3years. Overall, 24 States did not planto perform a data quality audit within 3years of the survey.

Of the 27 States with completed auditsafter 1995, changes were made toimprove data quality as a result of 22of these audits.


Figure 10

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

1995 1997 1999 2001

0

500,000

1,000,000

1,500,000

2,000,000

2,500,000Number of records

Custody supervision reports

Fingerprint cards

Court disposition forms

National standards can help assurecomplete criminal history records

The problem of missing dispositions in State criminal history records isperpetuated in part because there is nonational consensus on how a missingdisposition is defined, measured, orresearched by State agencies.

Improvements in criminal historyrecords have fallen short of earlier BJSefforts to establish voluntary reportingstandards.8 The presence of a nationalstandard on the time required for finalcourt disposition information to reachthe repository would encourage betterperformance by States that currentlyprocess this information more slowly.

National standards are lacking on thefollowing five issues concerning crimi-nal history record completeness.

States define "missing dispositions"differently

States' definitions of an “open” arrestor “missing disposition” vary. It is diffi-cult to accurately identify missingdispositions and obtain a nationalestimate of the extent of the problembecause the term has differentmeanings in different States. Most States (34) and the District ofColumbia consider any arrest event orcharge without a disposition to be a“missing disposition,” while 16 Statesrequire a certain amount of time topass before an arrest event or chargeis officially considered a missing dispo-sition.

Ten States reported that they define amissing disposition as an arrest that isnot being actively prosecuted. These10 States rely on a variety of methodsto determine that an arrest is not beingactively prosecuted, including notifica-tion by the prosecutor or court, search-ing court records, and regular audits ofrecords.

States are divided as to whether theymeasure a missing final disposition byusing an arrest event or an arrestcharge. An event has one or morecharges. Twenty-one States measurea final disposition by an arrest event;17 States identify it by an arrestcharge; and 10 States and the Districtof Columbia measure a missing finaldisposition by both an arrest event andan arrest charge.

There are also two exceptions to thebasic information used to determinewhether a disposition is missing.Vermont uses arraignments ratherthan arrests, and Pennsylvania doesnot specify any particular event tomeasure a missing disposition.

States require long delays beforedesignating a disposition as “missing”

Sixteen State repositories require thattime elapse before a disposition isofficially considered to be missing.

If the subject of a background checkhas been convicted of a disqualifyingoffense and the conviction is notincluded in the record, in certain Statesmonths will pass before the record isdesignated as having a missing dispo-sition. During those months the subjectwill not be prohibited from purchasing afirearm because the NICS check willnot reveal the disqualifying conviction. Of the 16 States that require a certainamount of time to pass before anarrest event or charge will be officiallyconsidered to have a missing disposi-tion. Two States require that more than1 year must pass before a recordwithout a disposition is officially

declared to have a missing disposition(Connecticut and Washington). Inseven States an entire year mustelapse 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 untilmore than 6 months have passed(Arizona, Maine, and New York). Theremaining four States use another time interval.

State procedures for handling missingdispositions differ

When State repositories receive newdisposition information that cannot belinked to an arrest charge or event,States follow varying policies. From July 1, 2000, to July 1, 2001, 45 States and the District of Columbiareported receiving final court disposi-tions that could not be linked to arrestinformation in the criminal historyrecord. When final court dispositionscould not be linked to an arrest, 27States did not enter the unlinked infor-mation. Eight States created a“dummy” arrest segment with the infor-mation from the court dispositionrecord, and three States entered thecourt information without any linkage toa prior arrest segment. The remaining12 States and the District of Columbiafollowed other procedures.

In that same 1-year period, 34 Staterepositories received information fromcorrections agencies that could not belinked to arrest information in the crimi-nal history record. When Statesreceived correctional information forwhich there was no underlying courtinformation, 25 States imputed aconviction for the record. NineteenStates and the District of Columbiareported that they did not enter aconviction on the record based oninformation from corrections agencies.

When information from correctionsagencies cannot be linked to an arrest,the information is not entered into the


8Recommended Voluntary Standards for Improv-ing the Quality of Criminal History Record Infor-mation (56 FR 5849).

system in 14 States and the District ofColumbia. Six States create a"dummy" arrest segment with thecorrectional information, and 15 Statesenter the correctional informationwithout any linkage to a prior arrestsegment.

From July 1, 2000, to July 1, 2001, 32State repositories received informationfrom final prosecutor dispositions thatcould not be linked to arrest informa-tion in the criminal history record.When prosecutor information could notbe linked to an arrest, 24 States andthe District of Columbia did not enterthe unlinked information. Six Statescreated a "dummy" arrest segmentwith the unlinked prosecutor informa-tion, and two States entered the prose-cutor information without any linkage toa prior arrest segment.

Common identifiers absent in criminalhistory records

The States use a wide variety of identi-fiers to link disposition information withthe arrest or charging information, andno single identifier is used by all 50States.

Forty States and the District of Colum-bia link dispositions by using a uniquearrest event identifier; 28 States andthe District of Columbia use a uniquetracking number for an individualsuspect; 22 States and the District ofColumbia link dispositions by using thearrestee’s name; and 16 States andthe District of Columbia link disposi-tions by using a name and a reportingagency case number. Certain Statesuse other identifiers, such as arrestdate, date of birth, or Social Securitynumber of the arrestee, court docketnumber, or charge number.

None of the States require positiveidentification that would occur with abiometric identifier like fingerprints.

Many States unable to link final dispo-sitions to specific charges

Disposition information in a criminalrecord is often not linked to specificcharges or counts. In 33 States andthe District of Columbia, the methodused by the repository to link disposit-ion information to the arrest/chargeinformation allows the link to be madeto specific charges or counts, an arrestcycle. State criminal history recordsystems can be compared only withdifficulty if some systems are apprecia-bly more sophisticated and completethan others. Dispositions should belinked to specific charges in all States.

Accurate linkage of dispositions to criminal records results from properuse by courts of relevant arrest trans-action numbers and the courts’ directsubmission of a livescan with theassociated disposition of the arrest.Courts have indicated a growing inter-est in utilizing NCHIP funds topurchase livescan equipment.

BJS sponsors National Evaluationof NCHIP

In response to the Attorney General’sJune 2001 directive, BJS commis-sioned a 3-year evaluation of theNational Criminal History ImprovementProgram (NCHIP). The two purposesof the evaluation were —

(1) to measure the performance ofState criminal history records systems(2) to identify improvement activitiesthat would be most effective in improv-ing record completeness. The evaluation ensured that theNCHIP grant program more efficientlyaddressed strengths and weaknessesof State criminal history recordsystems. Future NCHIP grants will betargeted to the specific record systemdeficiencies identified for each State.


The Records Quality Index (RQI) tomeasure NCHIP performance

In 2001 BJS began development of anew criminal records performancemeasurement system. The system willbetter guide NCHIP provision of fundsand technical assistance to the States.

The records quality index (RQI)collects and summarizes performancemeasures that objectively assess therelative capabilities of each State'scriminal history record system. TheRQI assigns a system an overall ratingbased on a wide variety of perform-ance measures directly related toNCHIP objectives.

A State’s RQI can be compared to theRQI of other States to determine therelative strength of the State's criminalhistory record system. The RQI willalso allow for more specific analysis,permitting BJS to track the progress ofa State by the score received on eachof its performance measures. The overall RQI a State receives canbe compared to a national average toexpress whether the overall efficiencyof the State's criminal history recordsystem meets, exceeds, or is belowthe impartial summary of all States.

After complete data are received, theRQI will become an invaluable tool foridentifying the strengths andweaknesses of each State's criminalhistory record system. Using RQI infor-mation, NCHIP will target funds toactivities that will most significantlyimprove a State's RQI, thereby improv-ing national background checksystems more directly and quickly.

As of March 2004, 34 States havecompleted all RQI data submissions.Another 10 States have made partialsubmissions and have demonstratedsubstantial progress toward supplyingall RQI data.

Elements of the RQI offer distinctvantage points

The evaluation for the RQI will breakdown a State's criminal history recordsystem into a wide variety of perform-ance measures that describe thesystem's components, overallstructure, and efficiency.

One measure of the efficiency of aState criminal history record system isthe average time that elapses beforean arrest report is posted to the crimi-nal history repository. Other ways asystem's utility can also be assessedare by the percentage of arrest recordsthat are linked to dispositions and bywhether State's criminal justiceagencies and the State's judicialsystem use common identifiers.

A State will receive a high score onone component of the RQI if all of itscriminal history records are automatedand will receive a high score onanother component if law enforcementagencies are connected to the courtselectronically.

The RQI consists of three sets ofperformance measures: inputmeasures, process measures, andoutcome measures.

Input measures describe the compo-nents of a record system, including thefollowing: State laws requiring thefingerprinting of prisoners and trans-mission of the fingerprints to the Staterepository; use of unique trackingnumbers in the records for individualsubjects; and requirements that prose-cutors submit declinations to therepository.

Process measures reflect systemperformance, including the following:procedures followed by the repositorywhen a link can not be made betweena disposition and an arrest; strategiesemployed to ensure accuracy of arrestdata, fingerprints, and final court dispo-sitions received at the repository; theaverage time between the occurrenceof a final felony court disposition andthe entry of data into the criminalhistory database; and the automationand auditing of certain procedures.

Outcome measures reflect the impactof the State's system and whether therecords are accessible and complete.Outcome measures include the follow-ing: the percentage of dispositions thatcannot be linked to an arrest; thenumber of III records available;backlogs in entering information intothe database; and repository notifica-tion of prosecutor declinations.


Criminal histories integrated withNIBRS reveal key crime factors

The National Incident-Based ReportingSystem (NIBRS) appreciably advancesefforts to learn important details aboutcrimes in the United States. Beyondthe summary counts of eight offensespresently collected for the FBI UniformCrime Reports (UCR), NIBRS repre-sents a more sophisticated data collec-tion system. NIBRS enables State andlocal jurisdictions to capture detailedoffense, offender, victim, property, andarrest information concerning eachcrime incident. NIBRS goals are — • to enhance the quantity, quality, andtimeliness of crime data collected bylaw enforcement• to improve the methodology used incompiling, analyzing, auditing, andpublishing collected crime statistics.

The broader scope of offense andoffender characteristics also permitsthe development of policy-relevantfindings. These findings can describethe nature and characteristics of

crimes such as gun assaults, domesticviolence, hate crimes, and crimesagainst children. Through NIBRS, lawenforcement officials, analysts, and thepublic can better understand trends inmore types of crime and in the amountof harm to victims.

Jurisdictions that have incident-levelreporting systems are more capable ofusing crime data for strategic planning,tactical crime analysis, and manpowerdeployment. This ability should result inmore effective use of limited resourcesand better crime control strategies.

Incident-level data, such as NIBRS,provide detailed information on thecontingencies of a crime, includingvictim characteristics and conse-quences for victims. Such data, whenlinked to criminal records, wouldpermit a background check to deter-mine whether elements of the offensemeet specific prohibitions for firearmtransfer or other factors of concern.

Incident reports would contain thevictim’s characteristics, the victim/offender relationship, and theoffender’s use of a firearm — estab-lishing whether the victim was a childor whether the offense involveddomestic violence. The FBI and BJS have been active inassisting the States in meeting theNIBRS standards and becoming certi-fied for NIBRS data submission. In2001 BJS distributed $13 million to 26States through the NIBRS Implementa-tion Program to develop and operateNIBRS-compatible systems.

As of August 2003, 24 States had theirState UCR programs approved by theNIBRS Certification Board, accordingto the FBI's NIBRS ImplementationCoordinator (map). Twelve States weretesting their systems to determine ifthey will soon meet certificationstandards. Nine States were develop-ing a NIBRS system, and six (Alaska,Georgia, Florida, Mississippi, Nevada,and Wyoming) had no formal plans toprovide NIBRS data to the FBI.


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 undera broad mandate to improve publicsafety by enhancing the quality,completeness, and accessibility of theNation's criminal history record infor-mation systems. NCHIP has fundedState and local initiatives designed toimprove criminal records and to allowthese records to be used for criminaljustice and authorized noncriminaljustice purposes. Achievements ofNCHIP were highlighted on pages 1 to6.

A BJS review of the NCHIP programhas concluded that the program’s resources must be more aggressivelytargeted toward bringing the States intocompliance with the Brady Act's provi-sions. NCHIP must also become fullyresponsive to evolving needs for moreextensive and thorough backgroundchecks to protect homeland security.

To reflect these NCHIP managementobjectives, five recommended actionitems are to be incorporated intoNCHIP:

• obtaining the full participation of theStates in the FBI's Interstate Identifica-tion Index (III) • improving State contributions to theFBI's national databases of prohibitedpurchasers • formally establishing a NationalTechnical Assistance Center supportedby BJS• promoting the adoption of a uniformRAP sheet to standardize recordsamong the States• periodic BJS surveys of State criminalrecord holdings.

Action item 1: Obtain full Stateparticipation in the FBI's InterstateIdentification Index (III)

Serving as the backbone of the NICSsystem, the Interstate IdentificationIndex (III) is a decentralized index-pointer system maintained by the FBIfor exchanging criminal history records.The III connects the FBI’s computer-ized files with State-level computerizedfiles. The III contains personal identifi-ers for more than 48 million offenders.Federal, State, and local criminaljustice 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 Federalor State source that maintains anyrelevant record(s). Once a hit is madeagainst the Index, the subject's dataare automatically retrieved from eachrepository and forwarded to therequesting agency. The FBI estimatesthat the III database contains 94% ofthe records checked by the NICS;therefore, it is critical that all Statesenter full partnership and contributetheir identifiers for inclusion in III.

States generally enter participation inthe III system in two phases, defined bythe nature of the records that theyagree to provide. For the secondphase, that of full participation, a Stateagrees to make its III-indexed recordsavailable to Federal and State agenciesfor both criminal justice and noncrimi-nal justice purposes.

In the second phase the FBI ceases tomaintain duplicate criminal records forpersons arrested and prosecuted infully participating States. All users ofcriminal history records — for criminaljustice purposes as well as authorizednoncriminal justice purposes — willobtain records directly from States'central computerized files or from theFBI for Federal records.

Fully participating States must meetminimum standards that relate toseveral factors, including the complete-ness and maintenance of the records,the presence of fingerprints for eachrecord, and procedures to respond torecord requests. At yearend 2001 aquarter or more of the criminal historyrecords in a majority of States couldnot meet those standards.

Opportunities for improving background checks


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 atleast 75% of their records accessiblethrough III (map). Thirteen States andthe District of Columbia had less thanhalf of their records accessible throughIII. The States and the Federal Govern-ment will benefit in several ways whenall States become full III participants.

First, the duplicate maintenance ofcriminal history records by the Statesand the FBI will be eliminated, resultingin significant cost savings. No longerwill States have to submit to the FBIfingerprints and charge/disposition datafor all felony and serious misdemeanorarrests. Instead, States will submit onlyfingerprints and textual identificationdata for each person's first arrest toupdate the III and the National Finger-print File (NFF). No longer will the FBIkeep records on State offenders andprocess fingerprint cards for all Statearrests. Instead, the FBI will maintainthe III, the NFF, and full criminalrecords of Federal offenders.

Second, records made available on aninterstate basis will be more completefor both criminal justice and noncrimi-nal justice purposes, including thescreening of applicants for certainsensitive positions. State repositoryrecords are more current than FBI files.In addition, many States maintainmisdemeanor records that have notbeen submitted to the FBI. Theserecords will become available throughthe III system for NICS and otherauthorized uses.

Third, certain noncriminal justice userswill enjoy faster response timesbecause they will be receivingelectronic responses rather thanmailed record responses from the FBI.These noncriminal justice users mayalso benefit from increased efficiencyat the State level resulting fromincreased automation and systemimprovements preceding IIIparticipation.

Action item 2: Encourage States to contribute records to the nationaldatabases of persons prohibitedfrom purchasing firearms: the NICSIndex and National Crime Informa-tion Center files

A background check for a firearmtransfer involves the use of recordsavailable through the III and two otherdatabases maintained by the FBI:

(1) the NICS Prohibited Persons Index(NICS Index), containing records ofpersons prohibited by the Gun ControlAct to purchase a firearm — thosedishonorably discharged from thearmed services, persons who haverenounced U.S. citizenship, mentaldefectives, controlled substanceabusers, and illegal/unlawful aliens

(2) the National Crime InformationCenter (NCIC) Files, containing recordson sex offenders, wanted persons,convicted persons on supervisedrelease, and subjects of protective/restraining orders. FBI statistics show that States havecontributed infrequently to the NICS

Index and NCIC databases. Protectionof U.S. residents depends on thesedatabases of prohibited purchasersbeing complete and current.

The NICS Index

The NICS Index is divided into sixdatabases of persons disqualifiedunder Federal law from receivingfirearms: (1) the Denied Persons File (2) the Mental Defectives/Commit-ments File (3) the Controlled Substance AbusersFile (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 sixdatabases. In the following summary aState is listed as having contributed toa database as of February 1, 2003,without regard to the number ofrecords involved. Several contributingStates provided fewer than 10 activerecords.


Jan Jul Jan Jul Jan Jul Jan0

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, becausethey 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 November2002 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 contributesto four databases of National CrimeInformation Center (NCIC) File

The NCIC system is a nationwide,computerized database of criminaljustice information. The NCIC File isdivided 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.


The NICS Index increased from 3,222State records in February 1999 to88,696 in February 2003. Nearly 90%of this increase can be attributed totwo States. In February 2002 Vermontadded 22,205 records to the DeniedPersons File. In November 2002Michigan added 52,698 records to theMental Defectives File (figure 13).

As of February 2003 few States hadcontributed records to the FBI's NICSIndex. The Denied Persons File hadthe largest number of contributingStates (12), followed by the MentalDefectives File (7), the ControlledSubstance Abusers File (3), and theIllegal/Unlawful Aliens File (2).

Since November 1999 State contribu-tions to the NICS Index files haveincreased for all databases.

NICS database status as of February 1, 2003:

Denied Persons File contains infor-mation on persons who have beendenied the purchase of a firearmunder Federal law but for whomdisqualifying information is notcontained in any other file accessedby the NICS. Federal and State lawenforcement officials are eligible toenter records. The Denied PersonsFile contained 34,904 records contrib-uted by 12 States. There were 7,514Federal records in this file.

Mental Defectives/CommitmentsFile contains information from Statelaw enforcement officials, the Depart-ment of Defense, and the Departmentof Veterans Affairs. The file includespersons who have been adjudicatedas mentally defective or have beencommitted to a mental hospital.

The Mental Defectives/CommitmentsFile contained 53,551 records contrib-uted by 7 States. Federal agencieshave contributed 90,111 files.

Controlled Substance Abusers Filecontains information on persons whoare unlawful users of or addicted toany controlled substance. State lawenforcement officials, the U.S. CoastGuard, and the Department ofDefense are eligible to enter recordsinto this file.

The Controlled Substance AbusersFile contained 90 records contributedby 3 States and 76 Federal records.

Illegal/Unlawful Aliens File containsinformation provided by the INS andState law enforcement officials onillegal or unlawful aliens. TheIllegal/Unlawful Aliens File contained151 records from 2 States. Federalagencies have contributed 2,683,910records.

NICS Index databases show minimal State contributions

From January 2000 to February 2003,the number of State and Federalrecords submitted to the NCICdatabase nearly tripled from 849,610 to2,289,320. The increase in the numberof NCIC offender records available forbackground checks can be largelyattributed to the increases in the contri-butions to the National Sex OffenderRegistry (450% increase) and theNational Protection Order File (220%increase) (figure 14). Since January2002 the number of records in eachNCIC file profiled in this report hasincreased (figure 15).

NCIC record status as of February 2003

Protection Order File contains courtorders that are issued to prevent actsof domestic violence against a personor to prevent a person from stalking,intimidating, or harassing anotherperson.

The Protection Order File contains754,033 records from 43 States.Federal agencies have contributed 56protection orders to this file.

Convicted Persons on SupervisedRelease File contains records onsubjects who are put under specificrestrictions during their probation,parole, or supervised release sentencefollowing imprisonment.

The Convicted Persons on SupervisedRelease File contained 260,556records from 15 States. There werethree Federal records in this file.

Convicted Sexual Offender RegistryFile contains records on individualswho have been convicted of a criminaloffense against a minor, who havebeen convicted of a sexually violentoffense, or who are sexually violentpredators.

The Convicted Sexual Offender Regis-try File contained 280,329 records fromall States and the District of Columbia.



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


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


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


2000 2001 2002 2003

Number of State NCIC records, sex offender records, and protection orders, January 2000-February 2003

This file contained 10 records fromFederal agencies.

Wanted Person File contains recordson persons for whom a federal warrant,a felony warrant, or a serious misde-meanor warrant is outstanding.

The Wanted Person File contained857,835 records from all States andthe District of Columbia. Federalagencies have contributed 42,076records on wanted persons.

Action item 3: Establish a NationalTechnical Assistance Center

A National Technical AssistanceCenter (NTAC) will ensure that all Stateagencies that develop and use criminalhistory records are technologicallyadvanced with compatible informationtechnology systems. The importance ofsystem designs which ensure compati-bility with other systems to facilitatecriminal and noncriminal backgroundchecks has never been more acute.

The NTAC will assist States to havethe capabilities and integration neces-sary to meet homeland securityconcerns — especially in regard tocommunications and access to andsecurity of information. NTAC will helpStates to determine whether proposedsystems comply with FBI/NICS partici-pation requirements and meet otherneeds for background checks.

BJS surveys conducted in response tothe Attorney General’s directivedemonstrate a clear need for theNTAC. The surveys found thatagencies in 46 States rely on manualrather than automated procedureswhile researching missing dispositions.Of the 46 States, 34 use only manualsystems to locate missing final disposi-tions. Twelve States rely on bothmanual and automated procedures,and 4 States rely completely onautomated means to obtain missingfinal dispositions.

A difficulty that besets State systemdevelopment is the continuous need toreplace both hardware and software asnew technology becomes available.Statewide plans less than a year oldare frequently determined to beobsolete when the systems becomeoperational.

The NTAC will provide guidance toensure that information technologysystems are appropriate, integrated,and efficient in the short and long term.

Action item 4: Implement uniformRAP sheets

Because Federal and State authorities,as well as private entities, increasinglyutilize criminal history records forhomeland security background checks,criminal justice purposes, andnoncriminal justice purposes, it is moreimportant than ever to make thoserecords as uniform and readable aspossible.

The interstate exchange and interpreta-tion of criminal history information areneedlessly complicated because theStates and the FBI use differentformats and codes. State criminalhistory records often contain symbols,or notations, commonly referred to as"flags." Many flags are based onrequirements under State law. Whenshown on interstate RAP sheets,undefined flags can confuse readers.

BJS has long encouraged States toconvert their criminal history records tothe FBI standard interstate RAP sheetformat.9 More recently, a national taskforce, the Joint Task Force on RAPSheet Standardization, determined thatadoption of a uniform RAP sheet by allStates and the FBI would benefit users

of criminal history records. Informationin those records would be more easilyunderstood, more complete, and moreaccurate. Adoption of a uniform RAPsheet would also provide decisionmakers with the ability to combine orelectronically collate criminal recordsfrom multiple sources into a singlechronology of events. The set of dataelements for the uniform RAP sheet isintended to include all pertinent infor-mation without overburdening systemswith the collection of extraneousinformation.

NCHIP funds should be used to assistthe States in adopting uniform RAPsheets that contain the following fiveelements: (1) a clearly defined link between anarrest and the subsequent activitiesand dispositions (2) sufficient information to allow usersto identify each agency that contributedparticular information (3) a notice of the existence of sealedinformation that some users may beauthorized to obtain(4) computer interfaces to enhance thequality and efficacy of the criminalhistory record(5) a standard transmission format toensure that information from a Statecan be easily formatted into the modelpresentation format, even if the contrib-uting State has not adopted the modelformat.


9See, Increasing the Utility of the CriminalHistory Record: Report of the National TaskForce, NCJ 156922, December 1995.

Action item 5: Survey State criminalhistory record holdings periodically

The efficiency of the NICS dependsentirely on the levels of completeness,accuracy, and accessibility of Statecriminal history records. Through theNCHIP program BJS observes theperformance of State criminal historyrecord systems. The monitoring identi-fies the critical areas of improvementthat will have the largest impact onimproving 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 aState’s criminal history record system.The RQI will measure improvementsover time based on a several keyperformance measures. NCHIP willuse the RQI results to work with theStates and ensure that funds aredirected to the areas of greatest needin each State. The RQI will ensureaccurate performance measurementas well as responsive and timely grantadministration.

(2) Survey of State Criminal History Information Systems

Since 1989 BJS has conducted abiennial data collection that examinesState criminal history record systems. This survey provides important detailsby State on the level of automation ofState record systems, the level ofdisposition reporting and felonyflagging, the timeliness of criminalrecord processing, measures of crimi-nal history record completeness, andState procedures to ensure theaccuracy and security of criminalrecords.

Latest survey findings are available inSurvey of State Criminal History Infor-mation Systems, 2001 <http://www.ojp.usdoj.gov/bjs/abstract/sschis01.htm.> Previous surveys werecompleted in 1989, 1992, 1993, 1995,1997, and 1999.


The Gun Control Act as amendedprohibits the sale of a firearm to severalcategories of potential purchasers,including persons who have beenadjudicated as a mental defective orhave been committed to a mentalinstitution.

Regulations of the Bureau of Alcohol,Tobacco, Firearms and Explosives(ATF) define this mental healthcategory as —

• individuals who have been adjudi-cated as a mental defective, meaning —“(a) A determination by a court, board,commission, or other lawful authoritythat a person, as a result of markedsubnormal intelligence, or mentalillness, incompetency, condition, ordisease:

(1) Is a danger to himself or toothers; or (2) Lacks the mental capacity tocontract or manage his own affairs.

(b) The term shall include — (1) A finding of insanity by a courtin a criminal case; and (2) Those persons found incompe-tent to stand trial or found not guiltyby reason of lack of mental respon-sibility pursuant to articles 50a and72b of the Uniform Code of MilitaryJustice.”11

• persons who have been committed toa mental institution, meaning —

"formal commitment of a person to amental institution by a court, board,commission, or other lawful authority.The term includes a commitment to amental institution involuntarily. Theterm includes commitment for mentaldefectiveness or mental illness. It alsoincludes commitments for otherreasons, such as for drug use. Theterm does not include a person in amental institution for observation or avoluntary admission to a mentalinstitution.”10

This appendix examines — • the number of States that as part of abackground check are unable toregularly access court orders or invol-untary commitments for mental illness• the principal factors that prohibitmental health information from beingregularly accessed during backgroundchecks• BJS initiatives to improve access toState mental health records• the results of a 2002 BJS survey thatcovered the practices of the 14 Statesthat consult mental health recordsduring background checks.

Mental health information rarelyincluded in NICS backgroundchecks

Impediments to the timely identificationof categories of prohibited purchasersare significant and have been welldocumented in recent reports by BJSand the General Accounting Office(GAO).11

In March 2002 BJS surveyed all Statecriminal history repository directors todetermine whether mental healthrecords were included in the State'sbackground checks for firearm sales.Twenty-five States and the District ofColumbia do not serve as points ofcontact for background checks, refer-ring all background checks to the NICSsystem. None had contributed mentalhealth records or any related mentalhealth information to the FBI for useduring presale firearm checks. Of theremaining 25 States that serve aspoints of contact, 11 do not checkmental health records while conductingpresale firearms checks, and 14 do(figure 16).

Few States make their mental healthrecords available to the FBI’s MentalDefectives File. As of February 1, 2003,the NICS Index contained records ofthe mentally ill or incompetent fromseven States. Michigan provided over50,000 records, but no other Statecontributed more than 30 records to thefile.

To protect the privacy of the mentallyill, a number of States have opted toprovide records on individuals prohib-ited from possessing a firearm formental health reasons to the FBI’sDenied Persons File instead of theMental Defectives File.

Appendix I Identifying prohibited purchasers: The mentally ill


11Continuing Criminal History Records Improve-ment Evaluation: Final 1994-98 Report, BJSreport, NCJ 179768, February 2000. (All BJSreports are available at <http://www.ojp.usdoj.gov/bjs/abstract/>.)

Survey of State Procedures Related to FirearmsSales, Midyear 2002, BJS report, NCJ 198830,April 2003. Use and Management of Criminal HistoryRecord Information: A Comprehensive Report,2001 Update, BJS report, NCJ 187670,December 2001. Opportunities to Close Loopholes in theNational Instant Background Check System,General Accounting Office, GAO-02-720, July 12, 2002. Improving the National Instant CriminalBackground Check System, General Account-ing Office, GAO-T-GGD-00-163, June 21, 2000. Gun Control: Options for Improving the NationalInstant Criminal Background Check System,General Accounting Office, GAO/GGD-00-56,April 12, 2000.

1Utah28North Carolina1New York

53,512Michigan1Kansas7Iowa1California

53,551Total

Number of recordscontributed to the FBI Mental Defectives File before February 2003 States

10See 27 CFR 178.11.

Several factors prohibit completemental health information frombeing accessed during backgroundchecks

State mental health records incompleteand infrequently automated

A 2002 BJS survey of the Statesrevealed that the condition of themental health record systems oftenrenders those records unusable forbackground checks. Findings includethe following:

• Nearly 40% of the States (18)reported the lack of an interfacebetween the State’s mental healthdatabase and the criminal historyrepository.

• For 12% of the States (6), mentalhealth records were incomplete.

• Nearly a third of the States (15)reported that their mental healthrecords were not fully automated.

• In 16 States officials reported thatmental health records lacked biometricidentifiers like fingerprints to positivelyidentify an individual.

Condition of State mental healthrecords also precludes their transmis-sion to the NICS Index. The reasonsgiven for not sharing the mental healthinformation with the FBI included: • Incomplete records (8 States) • Automation issues (30 States) • No biometric identifiers (15 States).

State privacy laws protect mentalhealth information

When State officials were surveyed asto the factors that explain whycomplete mental health informationcould not be accessed duringbackground checks, they cited privacylaws more frequently than any otherfactor.

Nearly 40% of the States reported thatState privacy laws prevented access tocomplete mental health informationduring background checks.12

Officials from 30 States reported thattheir privacy laws also prevented theState from providing complete mentalhealth information to the FBI for inclu-sion in the NICS Index.

Agencies lack time and resources toaccess mental health records

In 2002 just over a quarter of theStates reported that they did not havesufficient time or resources to accessmental health information duringbackground checks. Just under aquarter cited insufficient resources asone factor preventing them fromsharing mental health records with theFBI.

BJS develops 6 initiatives to widenaccess to mental health records BJS has developed six new initiativesto assist the States in upgrading theirability to consult mental health informa-tion during background checks asrequired by the Gun Control Act.

• BJS will formulate an initiative to writea Model Data Sharing Agreement. Thiscollaborative effort among the Statesand BJS will develop State-specificproposals for making State mentalhealth records accessible for firearmbackground checks.

• Under the Best Practices Initiative,BJS will work with selected States todevelop a best practices guide. Thisguide will highlight critical issues thatmust be addressed before mentalhealth records can be included indatabase searches for disqualifyinginformation. The guide will describeState practices in use and will follow uppromising practices that emerge afterthe publication of the guide.

• The Mental Health Courts Initiativewill be a collaboration with the Bureauof Justice Assistance (BJA) to improvethe criminal justice system's supervi-sion of mentally ill offenders. BJS willwork with BJA and their grant recipi-ents to improve disposition reporting for mentally ill offenders.


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

12Citations 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 toimprove reporting to the FBI so thatFederal databases will reflect morecomplete information on individualsprohibited from purchasing firearms for mental health reasons.

• BJS will expand two data collectionsto provide information on the ability ofthe States to examine records of thoseadjudicated as a mental defective andof those committed to a mental institu-tion.

• BJS will more effectively target effortsto provide NCHIP funds for theimprovement of access to mentalhealth records.

1. Model Data Sharing Agreement willbe developed

In response to a recent BJS survey,officials from 11 point-of-contact Statesreported that they do not consultmental health records as part ofbackground checks for firearmpurchases. In nearly two-thirds of theseStates, officials indicated that recordsare not consulted because State law orregulation prohibits access.

One of BJS' statutory mandates is to"provide for the development andenhancement of State and local crimi-nal justice information systems."13 Aspart of that mandate, BJS will consultwith the appropriate legal, mentalhealth, and criminal justice officials todevelop a Model Data Sharing Agree-ment. Such an agreement would makeState mental health records accessiblefor firearms background checks underthe Federal Gun Control Act.

One promising tactical option for theModel Data Sharing Agreement is tospecify a reporting arrangement withappropriate State authorities. The Statecould submit only the names of thosewith prohibiting mental healthbackgrounds to the FBI's Denied

Persons File rather than to the FBI'sdatabase of mental defectives. This isone of many options that simultane-ously protects the privacy of records ofpersons with mental health historiesand enables the States to ensure thatfirearms purchases comply withFederal law.

2. Best Practices series initiated

Because State agencies vary in theirability to access mental health recordsfor presale background checks, BJSwill undertake a Best Practices Initia-tive to highlight promising activities inan ongoing series of reports.

The Best Practices series will presentprofiles of States that can quicklyconsult mental health records inresponse to a NICS inquiry. Findingswill highlight several critical issues,among them —(1) the legal, policy, or regulatory basisfor consulting mental health records (2) types of mental health recordsconsulted (3) whether a centralized Statedatabase exists and which agencymaintains it (4) which agencies (public, private, orboth) are responsible for contributingmental health information (5) procedures that are followed whena background check is carried out (6) unexpected problems that aroseafter implementation of the system (7) suggested reforms to improve thesystem (8) contact information for a Stateofficial with responsibility for the system(9) how issues relating to patient confi-dentiality were addressed. BJS will continue to actively report onthe progress made by all States inaccessing mental health information for firearm presale background checks.

3. Mental Health Courts Initiativeundertaken

In 2000 Congress enacted the"America's Law Enforcement andMental Health Project" to establishdemonstration mental health courts.These courts exist for improving super-vision of and delivery of services tomentally ill offenders.14

BJA is administering the Mental HealthCourts Program in collaboration withthe Substance Abuse and MentalHealth Services Administration in theDepartment of Health and HumanServices. This program supports"mental health court demonstrationprojects that mobilize communities toimplement innovative, collaborativeefforts to bring systemwide improve-ments in the way they address adultoffenders with mental disabilities orillnesses."15

In FY 2003 BJA provided over $2million to establish mental health courtsthat provide continuous juridicaloversight and intensive case manage-ment.

BJS will work with BJA to ensure thatrecipients of Mental Health CourtProgram grants focus on dispositionreporting. State and Federal authoritiesshould have accurate and completerecords on persons who fall within thepurview of the Gun Control Act if theyare processed through the mentalhealth courts.


1342 USC § 3732 (18).

14America's Law Enforcement and Mental HealthProject, Pub. L. No. 106-515, 114 Stat. 2399(2000).15BJA, Mental Health Courts Project ProgramCompetitive Grant Announcement, 2002 at 4.See also, BJA, Emerging Judicial Strategies forthe Mentally Ill in the Criminal Caseload: MentalHealth Courts in Fort Lauderdale, Seattle, SanBernardino, and Anchorage. (NCJ 182504) April2000, reprinted February 2001.)

4. Improved State reporting to the FBIencouraged

In 2002, 2 of the 14 point-of-contactStates that check mental healthrecords prior to the sale of a firearmforward denial information to the FBIfor the Denied Persons database in theNICS Index. State officials from the 12States not submitting denial informationto the FBI provided reasons that fallinto three categories:

State law or regulations prohibit thetransmission of this information tothe FBI (6 States): State officials fromCalifornia, Connecticut, Nevada,Oregon, Pennsylvania, and Wisconsinreported prohibition of transmittingmental health data. Oregon officialscited State confidentiality agreementswith mental health agencies. AlthoughIllinois law does not prohibit disclosure,officials reported that they do notprovide these denials to the FBIbecause State law does not requirethem to do so.

Requisite technology is not in placeto reliably submit denial informationbased on mental health records tothe FBI (3 States): Respondents fromWashington, Wisconsin, and Hawaiinoted that they currently do not havethe technology to reliably submitdenials based on mental health recordsto the FBI.

States need administrative reformsand improved interagency coordina-tion (3 States): Nebraska andWashington officials indicated that thecurrent fragmented nature of conduct-ing firearms purchases and issuingfirearms permits prevents Stateofficials from providing denial informa-tion from mental health records to theFBI. Utah officials stated that defen-dants who are involuntarily committedgenerally have their commitmentsoverturned after responding to treat-ment, and these changes in status arenot reliably reported to other Stateagencies or the FBI.

To address these problems, BJS willrequest that State repositories and theirdata suppliers code court orders whichcommit offenders to mental institutionsas dispositions of arrests on the offend-ers’ RAP sheets. Those dispositionsare to be maintained on the III- accessible record as well. BJS will alsocontinue to encourage States to trans-mit information on firearm purchaserejections or commitments to mentalinstitutions to the NICS DeniedPersons File for inclusion in thenational NICS checks. This will remaina high priority for the FY 2004 NCHIP.

5. BJS improves data collectionconcerning the mentally ill

Two BJS surveys obtain information onStates’ ability to examine records ofpersons adjudicated as mental defec-tives or committed to mental institu-tions. In response to Attorney GeneralAshcroft's June 2001 directive to BJS,BJS followed up on the Survey of StateProcedures Relating to Firearms Salesand the Survey of State CriminalHistory Information Systems. Theseimprovements will permit BJS to betterinform policymakers about State effortsto examine mental health recordsduring background checks.

The Survey of State ProceduresRelated to Firearm Sales is an annualnational survey produced by the BJSFirearm Inquiry Statistics (FIST)project, a component of NCHIP. TheFIST project was established in 1995 tocollect data that describe the scopeand impact of firearm backgroundchecks required under Federal or Statelaw. Survey reports have beenpublished annually since 1996. Infor-mation is collected from hundreds ofFederal, State, and local agencies,including law enforcement organiza-tions, statistical analysis centers, andlegislative research bureaus.

The current survey asks point-of-contact States to indicate whether theyaccess a statewide mental healthdatabase when conducting abackground check for a firearms

transfer. The follow-up survey willexamine the complicated issue of howa State handles information aboutpersons adjudicated as mental defec-tives or committed to a mental institu-tion.

The follow-up survey will —

• Gather more detailed informationabout procedures used to checkmental health records, the level ofautomation of these records, the natureof the impediments to checking mentalhealth records, and initiatives plannedor underway to consult these records.

• Add questions about the nature of thedatabase of those States checkingmental health records from a central-ized database.

The Survey of State Criminal HistoryInformation Systems is a biennialsurvey of all directors of State criminalhistory repositories. The initial survey in this series was administered in 1989.The survey is the primary source ofinformation on the size, level ofautomation, and shareability of criminalhistory 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 thefollowing: • For those States that serve as pointsof contact for background checks,information will be obtained on thecentralized State databases that areutilized to consult records of thoseadjudicated as a mental defective andthose committed to a mental institution.


Analysis of results will address the size,level of completeness, and accuracy ofthese databases. If databases aredescribed as incomplete, follow-upquestions will ascertain the reasons forthe incompleteness and the remedialmeasures being undertaken, if any.

• To assess the accuracy of thesedatabases, the survey will examinehow often the databases are audited toremove items such as overturnedjudicial findings of mental illness. ForStates that do not serve as points ofcontact for background checks, thefollow-up will examine which Stateagencies maintain mental health infor-mation and the impediments to trans-mittal of this information to the NICSIndex.

6. Technical assistance for improvingaccess to mental health recordsprovided to States

A longstanding priority of NCHIP hasbeen establishing the infrastructure tosupport full implementation of theNICS. BJS has strongly encouragedStates to improve access to mentalhealth records, stressing its importancethrough its annual NCHIP announce-ments and communications with theStates.16 BJS will make NCHIP funds availablefor three related purposes:

(1) To support of the Best PracticesInitiative for the replication of projectsfeatured in the Best Practices reportand the bulletins describing promisingactivities.

(2) To support the Initiative to ImproveState Reporting to the FBI to removethe technological impediments to reportdenials based on mental healthdisqualifiers.

(3) To directly assist the States indesigning and implementing an array of new programs, policies, andtechnologies to upgrade capabilities to search mental health records.

BJS will also encourage States thathave few automated mental healthrecords to use NCHIP funds for theautomation of mental health records.States will be encouraged to establishprocesses that enable courts toautomatically update a defendant’scriminal record if the offender is adjudi-cated mentally incompetent or notguilty by reason of insanity.

BJS surveyed States that searchmental health records inbackground checks

In 2002 BJS conducted an in-depthsurvey of all 14 States that includemental health records in databasesearches before transfers of firearms.This survey examined a number ofissues relating to these States' proce-dures for checking mental healthrecords, including the following: • how the authority to check mentalhealth records was initially obtained• which agencies maintain theinformation• which entities provide it• whether the mental health records aremaintained in a central State database• whether an agreement exists betweenthe State repository and the mentalhealth care providers• information concerning the types ofmental health information checked• costs of establishing and maintainingthe system• improvements that are needed tomake the system more effective• other related issues.

14 point-of-contact States checkmental health records

Of the 25 States that serve as points ofcontact (POC’s) for firearm purchases,the BJS survey found that 14 include State mental health records in thesearch prior to the transfer of afirearm.17 The POC States that include

mental health records in their presalefirearms 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 checkmental health records are New York,Arizona, Colorado, Florida, Indiana,Iowa, Maryland, Nevada, NewHampshire, North Carolina, andTennessee.

The remaining 25 States and theDistrict of Columbia do not serve asPOC’s. None of these jurisdictionscontributes mental health records orany related mental health informationto the FBI for use during presalefirearm checks.

On average, the 14 States thatexamine mental health records prior tosales of a firearm have over 7 years ofexperience in conducting these checks.The States with the most experienceare Hawaii (18 years), California (11years), Illinois (10 years), Virginia (9years), and Washington and Wisconsin(8 years each).

The BJS survey asked the Staterepository directors to characterizetheir 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 theirrecords as "very good" or "excellent" in each of the four criteria. The Califor-nia, Georgia, Illinois, and New Jerseyrepository directors rated their mentalhealth records as generally "excellent."Repository directors for Connecticutand Utah rated their mental healthrecords as generally "very good."

Three of the State repository directorsrated their mental health records as"poor" on one of the criteria. Directorsin Oregon and Nebraska characterized


16National Criminal History ImprovementProgram Fiscal Year 2002 Program Announce-ment, NCJ 192811, February 2002.

17For this survey, the designation "POC State"covers States conducting presale checks for allfirearms or for only certain firearms that are soldin the State.

the timeliness of their mental healthrecords as poor. Virginia reported theaccessibility for a firearms check to bepoor.

The survey asked State officials toprovide a comprehensive assessmentof the State's program to allow mentalhealth information to be checked priorto the sale of a firearm. Respondentsfrom Michigan and Nebraska com-mented that the process is burden-some on personnel and costly in termsof human resources and technology.

In contrast, survey respondents fromCalifornia, Georgia, and New Jerseyindicated that their systems work welland perform a valuable public service.

In California from 1991 through Febru-ary 2002, more than 3,100 individualswere denied the purchase of a firearmdue to a pre-existing mental healthdiagnosis that the individual was adanger to himself or others.

Repository directors recommendedreforms for checks of mental healthrecords

The survey asked the 14 State reposi-tory directors what could be done tomake their checks of mental healthrecords more efficient. Recommenda-tions included — • greater automation of records so thatchecks may be conducted online• permit courts, public and privatemental health facilities, and othermandatory reporters to submit dataabout prohibited persons in Internet-based real time reporting to the Statedatabase • permit interstate access to the mentalhealth information by State officials • broaden the scope of mental healthdatabases to include private mentalhealth facilities• standardize the process for obtainingand maintaining records, removing inconsistent requirements amongStates

• add positive identifications of mentalhealth patients, such as a fingerprint orother biometric identifier.

States check different types ofmental health information

Each of the 14 POC States that consultmental health records conducts acheck of adjudicated commitments, inwhich individuals were committed aftera hearing by a judge or a speciallyappointed officer or board.

Apart from the category of adjudicatedcommitments, the mental health infor-mation that is checked during investi-gations of firearm purchasers variesamong the States.

Number of Type of record States checking

Persons found not guilty by reason of insanity ordiminished mental capacity 8

Persons found guilty but insane 7

Guardianship records basedon mental incompetence 5

Persons voluntarily committedto a mental hospital 4

California included in its check ofmental health records information onindividuals who have communicatedserious threats of violence to a licensedtherapist.

States vary approaches for checking mental health records

Ten of the 14 States maintained acentral database of mental healthrecords. Agencies supporting ormanaging these databases are theState police (Michigan, Pennsylvania,and Virginia), State mental healthdepartment or department of health(Connecticut, Hawaii, New Jersey, andWashington), criminal justice agencies(California and Georgia), and theDepartment of Human Services(Illinois).

Some State databases collect informa-tion on mental health records only frompublicly-funded facilities while other

States include private facilities ascontributors. In Hawaii only the publicly-funded mental health facilities contrib-ute information to the State database.Other States collect from public andprivate mental health facilities (NewJersey and Washington) as well aspublic mental health care psychiatrists,psychologists, and counselors (Califor-nia, Oregon, and Illinois). Connecticut,Georgia, Michigan, and Virginia receivemental health information only throughthe courts. Under Pennsylvania lawmandatory reporters include judges ofthe Courts of Common Pleas, mentalhealth administrators, and mentalhealth review officers.

Several States noted that 100% of theindividuals within the State databasewould be prohibited from purchasing afirearm in the State. However, mostStates were unable to estimate whatpercentage of the State's mental healthpatients are included in the centraldatabase.

State databases of mental health infor-mation are updated frequently. Onlyone State (Oregon) updates itsdatabase in real time. Eight Statesupdate their mental health databasesdaily (California, Connecticut, Georgia,Hawaii, Illinois, Michigan,Pennsylvania, and Virginia). NewJersey updates its mental healthdatabase on a weekly basis.

Of the four States without a centralizeddatabase, Utah and Wisconsin gener-ally maintain their mental health infor-mation in the courts, while Nebraskauses the courts as well as Statecommissions and individual mentalhealth facilities. Oregon relies onseveral databases maintained byvarious State agencies including theState mental health department.


Informal relationships link Statecriminal record repositories and mental health agencies

A formal agreement, such as amemorandum of understanding signedby a State's criminal history recordrepository and mental health providers,can govern submission of mentalhealth information for determining eligi-bility to purchase a firearm. In onlyGeorgia, New Jersey, and Oregondoes such an agreement exist, theresult of negotiations between theaffected agencies. The remaining 11States reported no formal agreement.

Seven States indicated that Stateadministrative regulations or internalpolicies governed the transfer ofmental health information. Four of the14 States (Illinois, Michigan, Nebraska,and Wisconsin) responded that nosuch administrative regulations existed.

Most States can restore right topossess firearms to individualsdisqualified for mental healthreasons

In 8 of the 14 States, a prohibitionagainst a firearm purchase based on amental health disqualification may belifted once a court or other adjudicatorybody restores a "non-mental defective"status to the individual. These Statesare California, Connecticut, Michigan,New Jersey, Pennsylvania, Utah,Virginia, and Wisconsin.

In California certain individuals areprohibited from purchasing firearms forlife pursuant to Federal law. For otherindividuals the prohibition may be liftedunder certain circumstances, such asrelease from a mental health treatmentfacility or successful completion of thecourt's restoration process. The major-ity of prohibitions in California's centraldatabase last 5 years.

In Georgia and Illinois the prohibitionagainst purchasing firearms lasts for 5years after discharge from a treatmentfacility. In Virginia the prohibition maybe lifted upon an individual's releasefrom a mental health facility. Nebraskaand Oregon are the only States toreport that the prohibition againstpurchasing firearms is permanent.

Legislation served as the primarysource of authority for examiningmental health information

In almost all of the States (12 of the14), the authority to use mental healthrecords as disqualifying informationcame from the State legislature. OnlyNebraska and New Jersey cited othersources of authority.

In half the States the criminal recordrepository was involved in drafting thelegislation. The legislation generallycame about from a gradual recognitionof the need to examine mental healthrecords. Only Connecticut reported thatState legislation was enacted as aresult of a single high-profile incident.

Most mental health informationmailed to the repository

Five of the 14 States transmit mentalhealth information to the criminalhistory repository or firearms process-ing agency online or by some otherautomated method (Connecticut, Michi-gan, Oregon, Utah, and Wisconsin).Ten of the States mail hard copies ortapes of the mental health informationto the repository at regular time inter-vals (California, Georgia, Illinois, Michi-gan, Nebraska, New Jersey,Pennsylvania, Virginia, Washington,and Wisconsin). Although a few Statesutilize more than one mode of trans-mission, most do not.

All State repositories have adoptedsecurity measures to protect mental health information

All State repositories reported securitymeasures to ensure that only person-nel determining firearm eligibility haveaccess to the mental health informationin the repository. Two States providefor broader access. In California lawenforcement personnel are grantedaccess to the information under statu-torily specified conditions limited tocriminal investigations that involve thecarrying or use of a firearm. In Pennsyl-vania the subject of the record and lawenforcement officials who enforceState firearm laws are provided accessto the mental health records in therepository.

In addition to personnel restrictions,each State repository reported systemsecurity measures such as firewalls,password-protected information, andemployee identification checks toprevent unauthorized parties fromaccessing the mental health informa-tion.

State repositories often use qualitycontrol measures to ensure theaccuracy, completeness, and timeli-ness of the mental health informationreceived. Most of the States (11 of the14) conduct a manual review of theincoming data or a manual review ofthe data prior to making an eligibilitydetermination. Five States (California,Hawaii, Illinois, Michigan, and Oregon)rely on computers to edit and verify theinformation. The Hawaii and Illinoisrepositories conduct regular audits ofthe system to ensure quality control.


In the event of a breach of qualitycontrol, such as a complaint concern-ing the unauthorized release of infor-mation or mistaken identity, most of theStates (10 of 14) provide a mechanismby which the complainant can formallyappeal the error. These complaints arehandled through an appeals process inCalifornia, Connecticut, Georgia,Hawaii, Illinois, New Jersey, Oregon,Utah, Virginia, and Wisconsin. There isno appeals process for quality controlbreaches in Michigan, Nebraska, andPennsylvania.

States overlap concerning the identifi-ers used with mental health records.Nearly every State used the subject'sname, date of birth, Social Securitynumber/driver's license number, race,and gender. Other identifiers includethe adjudication date (Virginia), admis-sion date (New Jersey), date ofcommitment (Pennsylvania), casenumber (Michigan), patient identifica-tion number (Illinois), address (Illinois),facility name/number (Illinois and NewJersey), physical description(California, Virginia, and Wisconsin),and charge code (Michigan).

11 States provide appellate reviewof denials of firearm purchase dueto mental health history

Eleven of the 14 States have estab-lished an appeals process for prospec-tive firearms purchasers who areinitially denied access to a firearmbecause of a disqualifying mentalhealth history. These States areCalifornia, Georgia, Hawaii, Illinois,New Jersey, Oregon, Pennsylvania,Utah, Virginia, Washington, andWisconsin. The three that do notprovide appellate review of thesedenials are Connecticut, Michigan, and Nebraska.

Costs for accessing State mentalhealth information varies acrossStates

The costs of developing and maintain-ing access to State mental health infor-mation depend on a number of factorsincluding the following: • the State's regulations concerningaccess to and use of mental healthrecords • the size of the State's mental healthpopulation • the presence or absence of proce-dures to lift the firearms prohibitionbased on a mental health disqualifica-tion • the presence or absence of inter-agency agreements• the level of automation of the State'smental health records.

Cost estimates to develop systems toaccess mental health information rangefrom "minimal cost" (Wisconsin) to$800,000 (California). Six Statesprovided cost estimates between thesetwo. Systems development cost$150,000 in Connecticut, $80,000 inOregon, $54,000 in New Jersey,$25,000 in Nebraska, $10,000 inVirginia, and $7,000 in Utah.

Startup costs were higher than antici-pated in Connecticut, Hawaii,Nebraska, and Pennsylvania. Theywere lower than anticipated in NewJersey, Oregon, Utah, and Virginia.

Similar variation occurred among Stateestimates of annual costs to maintainthese systems. New Jersey, Nebraska,Virginia, and Wisconsin reported thatannual maintenance costs were negli-gible while California estimated theannual cost to be $408,000. Annualmaintenance costs are estimated to be$30,000 in Hawaii, $10,000 inConnecticut, $3,000 in Oregon, and$1,500 in Utah.

The nine States of Connecticut,Georgia, Hawaii, Illinois, Michigan,Pennsylvania, Utah, Virginia, andWisconsin reported that State fundssupport the systems by which mentalhealth information is examined during a firearms background check. TheseStates rely on both long-term andannual appropriations by the Statelegislature.

New Jersey and Nebraska reportedrelying on Federal funds, while Califor-nia, Pennsylvania, Oregon, andWisconsin finance all or part of theirsystems through fees.

State systems that access mentalhealth information report success

Most States report no significant opera-tional changes in the systems thatprovide the State repositories withmental health information.

Illinois improved their system by incor-porating more professional mentalhealth consultants. Utah officials addedan audit feature to permit the courtsand the Department of Public Safety tocompare and verify information on aweekly basis. California officialsreported that corrective legislation wasrequired to eliminate duplicativereporting.


The Gun Control Act as amendedprohibits the possession of a firearm by individuals who have been convictedof a misdemeanor crime of domesticviolence. According to ATF regulations,misdemeanor crime of domesticviolence means — “a Federal, State or local offense that:

• Is a misdemeanor under Federalor State law or, in States which donot classify offenses as misde-meanors, is an offense punishableby imprisonment for a term of oneyear or less, and includes offensesthat are punishable only by a fine.(This is true whether or not theState statute specifically definesthe offense as a ‘misdemeanor’ oras a ‘misdemeanor crime ofdomestic violence.’ The termincludes all such misdemeanorconvictions in Indian Courts estab-lished pursuant to 25 CFR part 11.) • Has, as an element, the use orattempted use of physical force(e.g., assault and battery), or thethreatened use of a deadly weapon

• Was committed by a current orformer spouse, parent, or guardianof the victim, by a person withwhom the victim shares a child incommon, by a person who iscohabiting with or has cohabitedwith the victim as a spouse, parent,or guardian, (e.g., the equivalent ofa ‘common law’ marriage even ifsuch relationship is not recognizedunder the law), or a personsimilarly situated to a spouse,parent, or guardian of the victim(e.g., two persons who are residingat the same location in an intimaterelationship with the intent to makethat place their home would besimilarly situated to a spouse).

“A person shall not be considered tohave been convicted of such anoffense for purposes of this partunless:

• The person is considered to havebeen convicted by the jurisdiction inwhich the proceedings were held.

• The person was represented bycounsel in the case, or knowinglyand intelligently waived the right tocounsel in the case; and

• In the case of a prosecution forwhich a person was entitled to ajury trial in the jurisdiction in whichthe case was tried, either (i) Thecase was tried by a jury, or (ii) Theperson knowingly and intelligentlywaived the right to have the casetried by a jury, by guilty plea orotherwise.

“A person shall not be considered tohave been convicted of such anoffense for purposes of this part if theconviction has been expunged or setaside, or is an offense for which theperson has been pardoned or hashad civil rights restored (if the law ofthe jurisdiction in which the proceed-ings were held provides for the loss ofcivil rights upon conviction for such anoffense) unless the pardon, expunc-tion, or restoration of civil rightsexpressly provides that the personmay not ship, transport, possess, orreceive firearms, and the person isnot otherwise prohibited by the law ofthe jurisdiction in which the proceed-ings were held from receiving orpossessing any firearms.”18

The Act as amended also prohibitspossession of firearms by individualswho are the subject of a restrainingorder. Federal law defines this prohibi-tion as a person who —

“is subject to a court order thatrestrains such person from harassing,stalking, or threatening an intimatepartner of such person or child ofsuch intimate partner or person, or

engaging in other conduct that wouldplace an intimate partner in reason-able fear of bodily injury to the partneror child, except that this paragraphshall only apply to a court order that—

(a) was issued after a hearing ofwhich such person received actualnotice, and at which such personhad the opportunity to participate;and (b)(i) includes a finding that suchperson represents a credible threatto the physical safety of suchintimate partner or child; or (ii) by its terms explicitly prohibitsthe use, attempted use, or threat-ened use of physical force againstsuch intimate partner or child thatwould reasonably be expected tocause bodily injury.”19

Several recent BJS and GAO reportsmake clear that domestic violencemisdemeanor conviction records andrestraining orders continue to posesignificant challenges to the NICSsystem: — Use and Management of CriminalHistory Record Information: A Compre-hensive Report, 2001 Update, (NCJ187670) December 2001.— Continuing Criminal History RecordsImprovement Evaluation: Final 1994-98Report, (NCJ-179768) February 2000.— Survey of State Procedures Relatedto Firearms Sales, Midyear 2002,(NCJ-198830) April 2003.— Opportunities to Close Loopholes inthe National Instant Background CheckSystem, 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 Improvingthe National Instant CriminalBackground Check System, GeneralAccounting Office, (GAO/GGD-00-56)April 12, 2000.

Appendix II Identifying prohibited purchasers: Domestic violence misdemeanants and subjects of restraining orders


18See 27 CFR 178.11.

1918 USC § 922.

The first section of this appendixexamines the principal impediments toaccessing complete domestic violencemisdemeanor records and restrainingorders, including —

• Nonfelon information being generallyunavailable to State repositories• Unautomated conviction records fordomestic violence misdemeanors and unautomated restraining orders • Incomplete records for domesticviolence misdemeanor convictions and incomplete restraining orders• Insufficient resources to examinedomestic violence records andrestraining orders• Problematic case management for domestic violence • Complicated Federal definition of“misdemeanor crime of domesticviolence.”

The final section of Appendix IIpresents five new BJS initiatives toimprove access to these records.

States improve access to domesticviolence records

Since 1996 BJS has encouragedStates to use NCHIP funds to flagrecords to designate misdemeanorconvictions for domestic violence, stalking, protection orders, and crimesagainst children, the elderly, and thedisabled. Between 1995 and 2002, BJSawarded over $18.5 million, or 5% ofall available NCHIP funds, to 45 Statesand the District of Columbia for theautomating, upgrading, and flagging ofdomestic violence records and protec-tion order files. States have also usedNCHIP funds to develop registries forprotection orders and restrainingorders.

Improving records for domesticviolence offenders will remain one ofBJS’ most important priorities for tworeasons. First, domestic violencemisdemeanants represent a dispropor-tionately large percentage of firearmretrieval actions referred to the Bureauof Alcohol, Tobacco, Firearms, andExplosives (ATF). Across more than 34months, 1998-2001, ATF data indicatethat domestic violence misdemeanantsaccounted for 14% of all FBI NICSdenials but nearly 26% of firearmretrieval referrals.20

The percentage of retrieval actionsreferred to ATF for subjects of aprotection order was not disproportion-ate. Individuals subject to a protectionorder comprised nearly 4% of NICSdenials and 1% of firearm retrievalreferrals.

Second, domestic violence caseloadshave increased in recent years,strongly suggesting an increase in thenumber of domestic violence convic-tions. According to the National Centerfor State Courts, domestic violencefilings increased 12% between 1996and 2000.21 Ten States had increasesof 10% or more in the number ofdomestic violence filings between 1998and 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%).22

Without better procedures to identifydomestic violence offenders andpersons with protection orders againstthem, the threat to public safety willbecome more severe as the number ofdomestic violence offenders increases.

States hampered in checks fordomestic violence misdemeanantsand subjects of protection orders

Repositories miss domestic violencemisdemeanor records

As of midyear 2002, 36 State criminalhistory repositories maintained data on domestic violence misdemeanorconvictions, and 43 repositoriescontained information on restrainingorders.23 How complete thesedatabases are or how frequently theyare updated or audited is unknown.

The lack of comprehensive misde-meanor arrest and disposition data hasbeen identified as a major deficiency inState criminal history record systems.24

In many States only suspects chargedwith felonies are routinely fingerprinted,and only their arrests are reported tothe repository for inclusion in asuspect’s RAP sheet.

Automation remains a problem for some domestic violence misdemeanorrecords and protection orders

In 2002 four States indicated that thelack of automated misdemeanorrecords prevented officials from fullychecking domestic violenceconvictions.

Seven States reported in 2002 thatState officials could not retrieveaccurate protection order informationbecause the records were not fullyautomated.

The lack of automation prevents manyStates from forwarding these recordsto the FBI. Eight States reported thatlack of automated records preventedthem from sending misdemeanordomestic violence information to theFBI. In 11 States, officials indicated


20Opportunities to Close Loopholes, pp. 18-20.21Examining the Work of State Courts, 2001: ANational Perspective from the Court StatisticsProject, National Center for State Courts, 2001. 22Examining the Work of State Courts, 2001, p. 42.

23Survey of State Procedures Related to FirearmSales, Midyear 2002 (NCJ 198830) April 2003.24Use and Management of Criminal HistoryRecord Information: A Comprehensive Report,2001 Update (NCJ 187670) December 2001.

that they were prevented from forward-ing protection order information to theFBI because the information was notautomated.

Records incomplete for domesticviolence misdemeanors and protectionorders

In response to a 2002 survey, 20States reported that incompleterecords prevented the State fromretrieving accurate domestic violencemisdemeanor information forbackground checks. These recordswere incomplete for several reasons,including the following: • absence of a flag denoting domesticviolence misdemeanor• the age of the record • the lack of a final disposition• the lack of information about thevictim-offender relationship• the failure of arresting agencies andcourts to report the informationpromptly to the repository• agency procedures that do notrequire fingerprinting misdemeanants.

Twelve States also reported in 2002that incomplete restraining order infor-mation made it difficult to conductbackground checks. Most of theseStates indicated that restraining orderrecords were incomplete due to thecourts’ inability to provide the repositorywith the necessary information. Otherfactors included the failure to haveproper identifiers (such as date of birth)in the record, lack of automation, andinsufficient resources to process theinformation accurately and promptly.

Incomplete records not only complicatebackground checks, they also preventStates from submitting material to FBIdatabases, such as the NationalProtection Order File. Problems fromincomplete records prevented 15

States from providing domesticviolence misdemeanor information tothe FBI and prevented 13 States fromproviding protection orders. NineteenStates reported that the absence of aflag in the record prevented the Statefrom sending domestic violence misde-meanor records to the FBI.

State checking agencies lack time andresources to access domestic violencerecords or restraining orders

In 2002 eight States reported that theydid not have sufficient time orresources to access complete domes-tic violence misdemeanor informationfor background checks. Four statesreported that additional time orresources were needed before theycould retrieve complete restrainingorder information for backgroundchecks.

Officials from five States reported thatinsufficient resources were a factor thatprevented them from providing the FBIwith complete domestic violencemisdemeanor information. In 10 Statesofficials reported that they did not havesufficient resources to providecomplete protection order informationto the FBI.

Tracking of domestic violence casesoften difficult

Handling of domestic violence-relatedcases varies within and betweenStates. Cases involving domesticviolence may arise from a variety ofdivisions within a State judicial system,such as civil, criminal, juvenile, andfamily divisions, as well as fromspecialized domestic violence courts.Case management systems vary intheir ability to track case filings, theissuance of protection orders, anddocumenting case outcomes.

The lack of data on domestic violenceis also related to the legal definitions ofoffenses. Recorded offenses may notinclude 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 courtshandle domestic violence cases, in2002 BJS initiated a study of case-processing flows through the criminaljustice system for persons chargedwith domestic violence offenses. Representative data from the 75largest counties will be collected. Anestimated 16,000 domestic violencecases will be tracked from arrest,through prosecution, to conviction and sentencing. Information will beobtained on the types of sentencesimposed for domestic violence, includ-ing supervision in the community undersentences to probation.

Factors affecting the likelihood ofconviction will be documented. Apartfrom legal provisions, these factorsmay include the following: the victim-offender relationship, criminal historiesof victim and offender, policies guidingissuance and enforcement of restrain-ing orders, prosecutorial policiesregarding domestic violence cases,and pretrial release and sentencingpractices.

The study’s objective is to determinewhether domestic violence cases arehandled differently from other types ofassault filings. Reporting to criminalrecord repositories may be one of thedifferences.

Definition of “misdemeanor crime ofdomestic violence” complicated The GAO identified another impedi-ment to domestic violence misde-meanor reporting.25 The GAO noted


25Opportunities to Close Loopholes in theNational Instant Background Check System, pp. 21, 67.

that the Federal definition of "misde-meanor crime of domestic violence"presents a unique challenge for Statesfor at least two reasons: (1) the law is retroactive in scope(2) the definition requires informationabout court proceedings that may beavailable only through manualresearch.

For a Federal firearms eligibility deter-mination to be made, several elementsmust be known about the misde-meanor domestic violence conviction,including the following: (1) whether an offender was repre-sented by counsel or knowingly andintelligently waived the right to counsel(2) whether there was a jury trial if theoffender was entitled to one, orwhether this right was intelligentlywaived(3) whether a conviction that meetsthese criteria was later expunged or setaside or was for an offense for whichthe offender was pardoned or hadhis/her civil rights restored.

According to a 2002 BJS survey, sevenStates reported that the complicatednature of the Federal definition of a“misdemeanor crime of domesticviolence” prevented the State fromretrieving complete and accuratedomestic 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 sendingcomplete and accurate domesticviolence misdemeanor information to the FBI.

BJS has developed 5 initiatives to improve access to misdemeanordomestic violence records and toprotection orders:

1. NCHIP will focus on improving theflagging of domestic violence misdemeanor records

Since 1996, when a conviction for adomestic violence misdemeanor wasadded to the list of Federal firearmprohibitors, NCHIP has supportedState efforts to ensure that records ofdomestic violence related offenses areincluded or "flagged" in criminal historyrecords. Allowable costs under NCHIPhave included the costs of flagging oralgorithms used for flagging as well asthose associated with the identificationof records to be flagged. Since 1996NCHIP funds have enabled certainStates to build centralized statewidedomestic violence databases and toupgrade their records; however, not allStates have done so.

This new initiative will encourage Stateofficials to place a higher priority onmeeting the challenges posed bydomestic violence misdemeanorconvictions. NCHIP funds will be madeavailable to the States to allow them toimplement procedures that ensure thatmisdemeanor convictions involvingdomestic violence are systemicallyincorporated into RAP sheets andmade available for use during a NICScheck.

The BJS evaluation of the NCHIPprogram will gather systematic data on techniques used across States toovercome impediments to identifyingprohibited firearm purchasers. Theevaluation will document changes inthe ability of States to provide suchinformation 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, anemerging FBI data system designed to capture detailed offense, offender,victim, property, and arrest data oneach crime incident. BJS stronglyencourages States to link NIBRS dataon offenders to RAP sheet arrest anddisposition transactions. The victim andincident characteristics, such as victim-offender relationship, can thereby beused in the State’s background check.

The NIBRS system can improve Statecriminal records’ identification ofdomestic violence offenders. Forexample, a criminal record that showsan assault conviction might be linkedwith NIBRS information to identify therelationship between the victim andoffender, including relationships withinthe family (such as spouse, common-law spouse, and sibling) and outsidethe family (such as acquaintance,ex-spouse, and boy/girlfriend). Thisadditional information may replace thetedious manual research currentlyrequired to determine whether aconviction meets the Federal definitionfor a domestic violence disqualifier.

In 2001 BJS distributed $13 million to26 States through the NIBRS Imple-mentation Program to develop andoperate NIBRS-compatible systems. As of August 2003, 24 States had theirState UCR programs approved by theNIBRS Certification Board.

BJS remains committed to assisting States in attaining NIBRS certification.BJS will place a higher priority on itscollaboration with the FBI to reach thegoal of having all States becomeNIBRS certified as soon as practicable.This collaboration will focus on the 14States testing their systems to deter-mine whether they may soon meetcertification standards, on the 9 Statesdeveloping their NIBRS systems, andon the 6 States with no formal plans toprovide NIBRS data.


3. BJS will improve its data collections domestic violence misdemeanors and protection orders

Two BJS surveys examine States'ability to use data on domestic violencemisdemeanor convictions and protec-tion orders: the Survey of State Proce-dures Relating to Firearms Sales andthe Survey of State Criminal HistoryInformation Systems. This initiative willrequire BJS to expand upon thesesurveys, learning more about theproblems that the NICS faces in check-ing these records.

In response to the Attorney General's2001 directive to BJS, BJS hasfollowed up on the Survey of StateProcedures Relating to Firearms Salesand the Survey of State CriminalHistory Information Systems.

The Survey of State ProceduresRelated to Firearm Sales an annualnational survey, describes the scopeand impact of firearm backgroundchecks required under Federal or Statelaw.

The current survey asks States toindicate whether they access a state-wide database for domestic violencemisdemeanor convictions whenconducting a background check for afirearms transfer. A separate questionasks whether a statewide database forrestraining orders is accessed duringbackground checks.

BJS has recently supplemented thesequestions to gain in-depth informationon— • State procedures for checkingdomestic violence misdemeanorrecords and protection orders• impediments to checking theserecords• whether this information is forwardedto the FBI• impediments to transmittal of thisinformation to the FBI• whether improvements are underwayor planned to improve the State's ability

to access or use domestic violencemisdemeanor records and protectionorders.

The Survey of State Criminal HistoryInformation Systems is the primarysource of information on the size andlevel of automation of criminal historyrecord holdings by State.

For the States that serve as points ofcontact for background checks, BJSwill follow up on the survey to learnmore about the centralized Statedatabases used for domestic violencemisdemeanor records and protectionorders. BJS will also determine thesize, level of completeness, andaccuracy of these databases.

If databases containing domesticviolence information are described asincomplete, follow-up questions willseek reasons for the incompletenessand remedial measures being under-taken. To examine the accuracy ofthese databases, BJS will determinewhether and how frequently thedatabases are audited to remove itemssuch as expired protection orders.

For those States that do not serve aspoints of contact for backgroundchecks, the followup survey willexamine which State agenciesmaintain information concerningdomestic violence misdemeanorconvictions and the issuance of protec-tion orders. Survey questions will alsoexamine the impediments that preventthe transmittal of this information to theFBI’s NICS Index.

4. NCHIP will work to improve misdemeanor domestic violenceconviction reporting from the courts

The Federal prohibition againstpossessing firearms attaches upon conviction in any court of a misde-meanor crime of domestic violence.However, current court reportingpractices do not ensure that misde-meanor domestic violence convictions

are consistently reported to a State'scriminal history repository.

BJS will encourage States to expendNCHIP funds to improve accessibilityof domestic violence misdemeanorrecords and to improve the reporting ofthose records by courts to the reposi-tory and the NICS Index. SeveralStates have utilized NCHIP funds forthese purposes in recent years. BJSwill also work with all States toautomate case management systems.

In addition to the provision of NCHIPfunds, BJS will continue its funding ofthe Court Statistics Project through theNational Center for State Courts.

The National Center for State Courtsrecently developed a Family ViolenceData Reporting Prototype to streamlinethe process of classifying, counting,and reporting family violence cases forall types of courts. This prototypeassists the court in accurately reportingwhether domestic violence relatedelements were present in a case, alongwith trial outcome, case disposition,and sentencing information.

Recent tests of the Family ViolenceData Reporting Prototype revealedimpediments such as courts thatlacked integrated data systems andjurisdictional problems with the testcases. Despite these flaws, mostdemonstration courts found the proto-type to be a viable tool.

Case reporting tools such as theFamily Violence Data Reporting Proto-type will lead to the greater availabilityand comparability of information ondomestic violence misdemeanors.

5. BJS will encourage States toincrease submissions to the NationalProtection Order Database

The contribution of State protectionorder records to the FBI's NationalProtection Order file is designed topermit interstate enforcement ofprotection orders and allow for more


thorough NICS background checks. A 2002 report from the Department ofJustice's Office for Victims of Crimeestimated that in 1998 the FBI'snational database contained less than5% of the 2 million protection ordersbelieved to qualify for entry into thefile.26

As of February 2003, the NationalProtection Order file held no recordsfrom Alabama, the District of Columbia,Hawaii, Mississippi, Nevada, NewJersey, Utah, Virginia, or West Virginia.In recent years the database hasgrown considerably, averaging nearly200,000 additional records per year.BJS will undertake a concerted effort totarget non-participating States fortransmittal of protection orders to theFBI for inclusion in the national system.


26Office for Victims of Crime, Enforcement ofProtection Orders, OVC Legal Series BulletinNo.4, January 2002, pg. 4.

Through its recent surveys BJS haslearned important details about someStates’ inability to routinely identifyprohibited purchasers of firearms.Combined with the tragic events ofSeptember 11, 2001, these findingsgenerated two research questionsabout the current capacity to protectU.S. residents against foreign threats.

How adequate are State procedures inthe event that a Federal immigrationlaw violator is detained in the custodyof local officials?

The FBI arrested suspected conspira-tor Zacarias Moussaoui on immigrationcharges on August 17, 2001, anddetained him in a Minnesota county jail.Based on this set of events, do Stateshave policies to obtain immigrationoffenders' fingerprints and promptlyprovide them to the FBI, INS, or Statecriminal history repository whenFederal officials apprehend the offend-ers and hold them in a local jail?27

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 fingerprintinformation reaches the appropriateFederal authorities.

The survey found that eight States donot have policies to take fingerprintsfrom a Federal detainee charged with aviolation of Federal immigration lawand placed in the custody of local au-thorities. Eight States and the District of Columbia have policies to fingerprintthe individual and forward the informa-tion to the FBI. Twenty-two States havepolicies to fingerprint the suspect andsend fingerprint information to the INS. Are the Nation's criminal history recordsystems physically safe from externalthreats?

BJS surveyed the States to learnwhether their criminal history recordsare adequately protected by backupdatabases remote from the repository.All States reported having backupsystems, and 47 States indicated thatthe backup systems were locatedoffsite from the central repository.

States vary in how they processFederal immigration law violators

Broad disparities exist among Stateprocedures in processing individualsapprehended by Federal officers anddetained locally for violating Federalimmigration laws. In the November2001 survey of State criminal historyrepositories, only Massachusettsreported that it fingerprints detaineesand forwards the prints to the Staterepository, the FBI, and INS (table).

Eight States reported that they do nothave a policy to fingerprint the detain-ees. In one of the eight, Marylandofficials indicated that if an individual isdetained by State or local law enforce-ment authorities for an immigrationoffense, fingerprints are taken,forwarded to the State repository for acriminal records check, and then kepton file.

Fewer than half the States forwardingfingerprint information to the INS

Twenty-two States operate under apolicy to fingerprint locally held detain-ees suspected of violating Federalimmigration laws and forward the infor-mation to the INS. Of the 22 States, 9forward the information to INS but donot conduct an in-State criminal historycheck or create a permanent record.

Fewer than a fifth of the Statesforwarding fingerprints to the FBI

California, Connecticut, Louisiana, Massachusetts, and the District ofColumbia reported that they collectfingerprints from detainees held locallyfor violating Federal immigration lawsand routinely send them to the State criminal history repository for trans-mission to the FBI. Mississippi,Nevada, Texas, and Virginia reportedsending the fingerprints directly to theFBI.

Appendix III BJS surveys in the aftermath of September 11, 2001


WyomingWisconsinWest VirginiaVermontWashingtonUtahSouth CarolinaOregonOklahomaNorth CarolinaOhioNew YorkNorth DakotaMissouriTennesseeNew MexicoKansasSouth Dakota

PennsylvaniaMontanaIdahoRhode IslandNew HampshireMinnesotaHawaiiNew Jersey

LouisianaNebraskaMichiganDelawareMarylandDistrict of ColumbiaIndianaTexasIowaColoradoMaineConnecticutArizonaNevadaGeorgiaArkansasKentucky

MassachusettsCaliforniaAlaskaVirginiaMississippiFloridaAlabamaIllinois

INS and FBIFBIINSINS and FBIFBIINSonlyheld in local jailsState 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

27The BJS survey described in this section wasadministered before the INS was incorporatedinto the Department of Homeland Security as theBureau for Citizenship and Immigration Services.

One State in three submitting fingerprints of Federal detainees to aState criminal records check

Eighteen States and the District ofColumbia collect fingerprints fromFederal immigration detainees held bylocal authorities and then perform acriminal records check.

Missouri retains the fingerprint andarrest information in a separate classi-fication created specifically for Federaldetainees. Seven States and theDistrict of Columbia have statutoryauthority to create a criminal historyrecord and to issue a State identifica-tion number for individuals arrested inthe State for violating Federal law.Two States and the District of Colum-bia retain the fingerprint and Federalarrest information in a miscellaneousfile created to store records notmeeting requirements for specificclassifications.

1 in 5 States retaining fingerprints ofFederal detainees in State AFIS.

Twelve States operate under a policyto retain the suspect's fingerprints inthe State AFIS for subsequent identifi-cation. In these States no new criminalhistory record is created. The Statesare 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 obtaindispositions for cases involving Federaldetainees in their State by following upwith other agencies. California reportedthat the State repository obtains dispo-sition information from the INS andFederal courts. Alabama's repositoryfollows up with the INS to obtaincomplete disposition information.

Although all States were surveyed todetermine how they obtained disposi-tions for cases involving Federaldetainees, most States either indicatedthat dispositions are not obtained (14States and the District of Columbia) ordid not respond (34 States).

State criminal history recordsystems respond to securityconcerns

The September 11th terrorist attackson the United States have forcedFederal and State agencies tore-examine the security of physical andinformation infrastructures. As part ofthis effort, BJS surveyed the States todetermine whether the Nation's crimi-nal history record systems are physi-cally safe from external threats.

Most States with offsite backupsystems updated frequently

Every State maintains a backup of theircriminal history record system. Forty-seven States indicated that their crimi-nal record backups systems werelocated offsite from the central reposi-tory (New Hampshire, New Jersey, andNew Mexico did not).

Data in the State criminal recordrepository backup systems areupdated frequently, although improve-ments could be made in at least 15States. Six State repositories updatetheir backup systems in real time(Alabama, Colorado, Florida, Indiana,New York, and Oklahoma). Nearly halfof the State repositories (24) reportedthat they update their backup systemsdaily, and 15 repositories, weekly.

The content of the backup systemsvaried among the States

Nearly all of the States (49) reportedthat their backup systems containedautomated criminal history records;however, this does not mean that thebackup systems contained onlyautomated records. In seven States,the criminal records repository directorreported that their backup systemscontained only automated criminalhistory records. Fifteen Statesreported that their backup systemscontained; (1) automated criminalhistory records, (2) hard copies ofcriminal history records, and (3)electronic fingerprint images.

Twenty five States reported that theirbackup systems contained automatedcriminal history records and electronicfingerprint images. One State reportedthat its backup systems containedautomated criminal history records andhard copies of criminal history records.One State reported that its backupsystem contained only electronicfingerprint images.

Among the States that include hardcopies of criminal history records intheir backup systems, four Statesupdate those records by creating anautomated version of the record. SixStates had policies to manually addupdated information to the record.


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