    CRIMINAL HISTORY INVESTIGATIONS: THE KEY TO LOCKING UP 
                      THE REPEAT OFFENDER
                                
                               By
                                
                     Arthur L. Bowker, M.A.
                          Investigator
              Office of Labor Management Standards
                    U.S. Department of Labor
                        Cleveland, Ohio

 
    In a 1993 drug trafficking case in northern Ohio, all
factors, including a computer records check by the arresting
agency, indicated that the defendant was a first-time offender.
However, queries by the probation officer revealed that the
defendant actually was a major out-of-State drug trafficker with
numerous prior convictions.

    Luckily, the information came to light prior to sentencing,
but had the defendant's criminal history been available from the
start, the case could have been handled differently. Prosecutors
would have viewed the defendant in a much harsher light and could
have considered making enhanced, repeat offender charges.

    Based on all Federal and State arrest fingerprint cards
processed by the FBI, officials estimate that two-thirds of the
subjects have prior arrest records. In addition, multi-State
offenders--those with both Federal and State records or arrests
in more than one State--make up approximately 25 to 30 percent of
the group. (1)

    Federal, State, and territorial jurisdictions have enacted a
variety of statutes that permit or even mandate upgraded charges
or enhanced sentences for individuals with prior records. In
addition, these jurisdictions often authorize or require that
courts impose enhanced sentences for individuals classified as
habitual or repeat offenders. (2)

    Currently, legislatures nationwide are considering or have
adopted mandatory life sentences (commonly known as "three
strikes and you're out" statutes) for repeat offenders. The 1994
Violent Crime Control and Law Enforcement Act passed by Congress, 
which mandates life imprisonment without parole for Federal
offenders with three or more convictions for serious violent
felonies or drug offenses, exemplifies this trend. Two factors
influence effective enforcement of these statutes: The thorough
investigation of suspects' criminal histories and the quality of
criminal history records nationwide.

INVESTIGATIONS USING CRIMINAL HISTORY RECORDS

    As the 1993 case in northern Ohio illustrates, criminal
histories can prove valuable for identifying and prosecuting
repeat offenders. Law enforcement administrators and prosecutors
should view an offender's prior criminal record as a potential
added element of any criminal charge(s) being considered.

    To be most effective, however, an offender's criminal
history must be detected and legally documented in the
preliminary investigative stages. Requirements for legal 
documentation of criminal histories vary from State to State, but
can include a subject's confession to prior convictions,
certified copies of the journal entries of convictions from other
courts, fingerprint records, and establishment of the functional
equivalent of convictions from other States.

    Often, investigators discover a lengthy prior record too
late, even after a defendant has pled guilty to an offense. This
can have a disastrous effect on prosecuting a repeat offender.
For instance, in at least one State, prosecutors must charge
suspects as repeat offenders within 14 days of the arraignment or
they are barred from initiating this sentencing enhancement later
in the case. (3)

Guidelines for Initial Records Checks

    Law enforcement administrators should be familiar with their
State's statutes concerning charge and sentence enhancement and
the legal proof required to establish a suspect's criminal
history. Such knowledge will help law enforcement agencies
develop general guidelines on the scope and depth of
investigations into criminal histories. Ideally, all of the
following factors should be considered in the development of such
guidelines:

      How serious is the current charge? Is it a felony or
       misdemeanor? Is it a violent, property, or victimless
       crime?

      Can prior convictions/arrests significantly aid the
       prosecution and/or enhance the current charge(s) or
       sentence?

      How recent are prior convictions or arrests? (4)

      Where did the prior conviction/arrest occur? Is a
       conviction or arrest in one State the same as in another?
       For example, does a battery conviction in one State equal
       an assault conviction in another?

      Does the home State's enhancing statute specifically
       permit using out-of-State convictions, or must the
       prosecutor argue that a conviction is functionally
       identical or equivalent to an in-State conviction to
       permit enhancement of the current charge? (5)

      Is the prosecutor amenable to upgrading all charges
       and/or sentences based on prior convictions or just
       certain ones?

      What resources does the agency have available? How many
       workhours can be spent detecting and documenting a
       suspect's prior criminal history?

    At a minimum, agencies should consider making National Crime
Information Center (NCIC) inquiries using nonbiometric
characteristics--name, date of birth, social security number,
etc.--for all felonies and for offenses that have the potential
for felony status. Using the National Law Enforcement
Telecommunications System (NLETS), officers should make inquiries
in any State identified by the Interstate Identification Index
(III), as well as for the States where the subject was born,
resided, and was arrested.

    Inquiries based on biometric identification, i.e.,
fingerprints, can take days to get results. Eventually, the
Automated Fingerprint Identification System (AFIS) technologies,
when fully operational, will reduce the use of nonbiometric
identification because positive identification will be available
in minutes. Until then, using nonbiometric identifiers can alert
officials in the preliminary stages of an investigation to the
existence of a prior record in minutes.

Guidelines for Further Investigation

    Not every case merits an indepth followup. With an NCIC
printout in hand, investigators can follow the agency's
guidelines to determine whether to continue the investigation of
a subject's prior record.

    One two-step decision model provides guidance in this area.
In step one, investigators first consider the seriousness of the
current charge and the type of prior record, i.e., an unexplained
arrest (where the disposition has not been documented in the
system) or a conviction. For example, a current felony charge
with a prior enhancing conviction warrants further investigation,
whereas a current misdemeanor charge with a prior unexplained
arrest does not.

    If step one indicates the need for further investigation,
then the second step in the model factors in the location and
date of the prior record. For example, a current felony charge
with a prior enhancing conviction that occurred within the
arresting State 2 years ago warrants legal documentation. On the
other hand, a current felony charge with a prior enhancing
conviction that occurred across the country 20 years ago does
not. These general guidelines can be refined further based on
prosecutive directives and available investigative resources.

Guidelines for Documentation

    Once investigators decide to document a prior conviction for
enhancement purposes, they should use fingerprints to establish
that the record belongs to the subject. Unexplained arrests
should be checked either by teletype or by other means to
determine whether they lead to enhancing convictions or even
outstanding warrants. If so, fingerprint cards then can be
submitted to State repositories to verify the subject's identity.

    In cases where the central State repositories do not have
fingerprint cards for the arrest or conviction, investigators
should check with the original arresting agency, which might have
a duplicate set. In cases where no fingerprint cards exist,  
officers should try other methods of documentation, such as photo
identification, any signature the subject may have made at the
time of arrest, witness identification, and admissions by the
subject.

    Law enforcement officials should be particularly alert to
suspects with no apparent record whose behavior indicates
experience in the system. Tattoos or other signs of affiliation
with groups that glorify criminal behavior should be questioned.
For example, members of satanic groups, Hell's Angels, Pagans,
and prison and other gangs often sport identifying tattoos,
whereas members of other organized crime groups have been known
to wear rings to identify themselves. Further inquiry with these
suspects might reveal prior convictions that previously had been
undetected by records checks.

    Where legally permitted, law enforcement officials should
consider obtaining access to a suspect's prior presentence
report. (6) Several factors make these reports very helpful for
documenting prior criminal histories. For example, probation and
parole authorities generally become quite skilled at documenting
prior criminal records because courts and parole boards mandate
that this area be as complete and accurate as possible. They also
usually have more time than police investigators to document and
investigate an individual's prior criminal activities.

    Most presentence reports contain extensive details regarding
the dates and locations of arrests and/or convictions as a
juvenile or adult, actual case numbers, and sentences imposed.
Many jurisdictions also require that defendants applying for
probation to be completely truthful regarding their prior arrests
and convictions. In these jurisdictions, defendants who lie about
their prior criminal records could have their probation
application denied, or if granted probation based on false
information, have it revoked at a later date. As a result,
presentence reports might contain more prior offenses than a
printout reflects.

    Finally, probation or parole authorities might have
important documentation, such as journal entries, regarding
out-of-State convictions. This is particularly true in cases
where one State supervised the offender at the request of another
State.

    Investigators should consider using court records on recent  
convictions supported by fingerprints to establish that an older,
unsupported conviction belongs to a suspect. Specifically,
defendants usually have an opportunity to refute the contents of
a presentence report, which almost always contains a prior record
section. Suspects' acknowledgement in open court to the accuracy
of their presentence reports will help establish that older
convictions in the reports belong to them.

    Evidence gathered to document prior convictions, such as
fingerprints, booking sheets/photos, court records, and the like,
must be handled as is any other evidence. Officers should take
care to establish a chain of custody to ensure that the
information will be allowed as evidence in court.

    Obviously, prior criminal history checks provide valuable   
information during the course of an investigation. At the same
time, investigators should be aware of the deficiencies that
exist in the system.

QUALITY OF CRIMINAL HISTORY RECORDS
    
    To develop procedures and techniques for investigating
criminal histories, police administrators first must understand
the quality and availability of criminal history records
accessible to them. A computerized format characterizes the state
of the art in maintenance of criminal histories today.

    Maintaining and accessing criminal history records also have
moved beyond the concept of a national repository approach, where
the FBI maintained duplicate records of all State offenders, to a
national index systems, known as the III. The FBI maintains III
at the national level. The index contains only personal
identification data on individuals whose complete criminal
records are maintained in State and/or Federal repositories. When
fully operational, there will be 51 indexed repositories where
criminal records on an individual might be located. (7)

    When officers make inquiries, III refers them to the
location of the complete criminal history records. For example,
in an inquiry regarding an offender in Oregon, III might reveal
prior arrest records in Texas and Virginia, as well as a Federal
record. This information then enables officers to obtain the
complete records through the NLETS for the State files from Texas
and Virginia and the NCIC for the Federal records. (8)

    Significant improvements have been made in the Nation's
criminal history records database since computerization began in
the early 1970s, and this trend should continue into the
foreseeable future. Current inaccuracies in the system present
only minor obstacles, not major impediments, to investigating and
documenting prior criminal records of offenders and should not
discourage their use. Understanding the problems should help
investigators avoid frustration and make the most of the
available information.

Incomplete Information

    In 1991, an inquiry into the Nation's criminal history
records system had only a 66-percent chance of locating a
criminal record because more than 8 million records were not
computerized. In addition, of the 24 million criminal records on
file at the FBI at that time, roughly one-half of them,
computerized or not, did not record the disposition of the
criminal action. (9) Such inadequacies adversely affect the
Nation's criminal history records information system. (10)

    In addition, breakdowns in the reporting mechanisms of
contributing criminal justice agencies often produce inaccuracies
in criminal history records. Agencies frequently fail to report
information accurately, completely, and regularly. (11) One
State's audit of reporting compliance found that its agencies
simply were not reporting, and they demonstrated a real lack of
concern about complying with criminal history reporting
requirements. (12)

    One investigation involving a child molester highlights the
problem of incomplete recordkeeping. In 1986, an NCIC printout
obtained during a presentence investigation of an Ohio man
convicted of gross sexual imposition revealed a prior felony
arrest in Texas with no reported disposition. Contact with a
sheriff's office in Texas revealed that the offender had been
convicted and sentenced to probation. Further investigation
uncovered an outstanding probation violation warrant that had
been issued prior to the subject's arrival in Ohio, but the
warrant had never been entered into NCIC.

    If the Texas felony warrant had been in the system and the
offender had been stopped for a traffic violation somewhere along
his journey from Texas to Ohio, he would have been picked up
immediately. Perhaps the life of the Ohio child never would have
been disrupted so vilely. Complete and timely record keeping
makes a difference.

Missing or Illegible Fingerprint Records

    Fingerprint records can provide positive identification of
subjects during criminal history checks. In some jurisdictions,
however, officers issue only citations for minor offenses,
serious misdemeanors, and even some felonies. Unlike when an
arrest is made, officers often do not take fingerprints when they 
issue citations. The absence of fingerprints results in
incomplete criminal histories and the inability of police to
establish positive identification for use in subsequent court
proceedings. (13)

    Illegible fingerprints also contribute to inaccuracies in
the criminal history records system. Changes regarding the
acceptance of deficient fingerprint cards and the new live-scan
fingerprinting technology should alleviate this particular  
problem.

    In addition, AFIS will reduce human error in fingerprint
classification, which cause inaccuracies in criminal history
databases. AFIS also will increase efficiency in classification
of fingerprints and identification of offenders. In 1993, 39
State identification bureaus had AFIS or were in the process of
procuring it. By the turn of the century, all States probably
will have AFIS. (14)

    At the national level, the Integrated Automated Fingerprint
Identification System (IAFIS) is in the early stages of
development. Ultimately, this system will eliminate paper
fingerprint cards at every step of the identification process.
The Federal component of IAFIS, expected to be operational in
1997, will be located at the FBI's Criminal Justice Information
Services Division in Clarksburg, West Virginia.

Inadequate Equipment and Funding
    
    Unfortunately, the State repositories often suffer from
inadequate equipment and procedures, which contribute to
inaccuracies in the criminal history databases. (15) AFIS,
live-scan, and card-scan technologies are expensive, and it will  
take some time for all agencies to get them up and running.
Procedures, such as periodic audits, that ensure regular
reporting of arrest and disposition information to the
repositories also add costs. Many jurisdictions might have
trouble funding such upgrades to their databases.

CONCLUSION

    Certainly, not all charges warrant indepth investigation and
documentation of a suspect's criminal history. Therefore, law
enforcement officials must consider whether prior convictions or
arrests can aid the prosecution significantly and enhance the
current charges or sentence.

    The decision to invest further resources also must be made
based on the knowledge that America's criminal history records
are not 100 percent accurate and complete. In addition, the
wishes of the prosecuting attorneys must be considered strongly,
for they make the decision on whether to enhance the final charge
using repeat offender statutes.

    Society demands protection from harm, especially from
criminals who repeatedly victimize its citizens. By fully
exploiting the available criminal history databases and making
maximum use of repeat offender statutes, law enforcement agencies
across the country can stop these callous criminals from hurting
their communities again.


ENDNOTES

    (1)  Estimates by William H. Garvie, Section Chief,
Automated Fingerprint Processing Section, Identification
Division, FBI, cited in Bureau of Justice Statistics, Statutes
Requiring the Use of Criminal History Record Information, 1991,
1.

    (2)  Ibid., 11-13.

    (3)  D. Roberson, "Courts and the Importance of Reporting"
in Bureau of Justice Statistics, National Conference on Improving
the Quality of Criminal History Records: Proceedings of a
BJS/Search Conference, 1992, 42.

    (4)  In some States, only 60 to 80 percent of arrests
occurring within the past 5 years have final dispositions
recorded. In addition, older records might not be supported by
fingerprints, making positive identification difficult. Finally,
changes in criminal codes and crime recording methods over time
might make a prior conviction no longer significant. See, Bureau
of Justice Statistics, Survey of Criminal History Information
Systems, 1992, Washington, DC, November 1993, 2.

    (5)  These concepts have been expressed in several Federal
court cases involving 29 U.S.C. 504, such as Illario v. Frawley,
426 F. Supp. 1132 (D.N.J. 1977); Lippi v. Thomas, 298 F. Supp.
242, 246-249 (M.D. Pa. 1969); and Berman v. Local 107
International Brotherhood of Teamsters, 237 F. Supp. 767 (E.D.
Pa. 1964). Briefly, courts have held in these cases that the
facts behind a conviction that reflect conduct that is
"functionally identical" or "equivalent" to offenses specifically
enumerated in the statute are covered the same as if they were
enumerated specifically.  See, A. Bowker, "Prohibition Against
Certain Offenders in the Labor Movement: A Review of 29 U.S.C.
504," Federal Probation, March 1994, 55.

    (6)  Law enforcement officials should inquire with their
prosecutor's office regarding how to obtain access to these
records.

    (7)  Bureau of Justice Statistics, Use and Management of
Criminal History Record Information: A Comprehensive Report,
1993, 49-50.

    (8)  Ibid 7, 52.

    (9)  Supra note 3.

    (10)  Supra note 7, 30.

    (11)  Supra note 7, 2.

    (12)  G. McAlvey, "Use of Local Agency Audits," in supra
note 3, 81.

    (13)  Supra note 7, 10.

    (14)  Supra note 7, 47.

    (15)  Supra note 7, 2. 
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