Navigating The United States Criminal Courts
For Effective Screening
Criminal background checks have become a vital part of the screening process for employers striving to achieve due diligence for the purposes of increasing workplace safety and reducing the potential of negligent hiring litigation. There are thousands of criminal courts across the United States, each with its own court structure.
For employers, it is critical to understand:
The availability and limitations of criminal history data and know where the data can be found;
Be aware of the difficulties in obtaining accurate information;
And develop appropriate search strategies for being thorough and cost-effective.
In many states, local courts serve the purpose of resolving local, village or city issues dealing with minor misdemeanors, ordinance violations and licensing infractions. Often these types of courts do not offer a jury trial, just interpretation of local and state laws.
Most criminal or non-criminal convictions at this level will require restitution, a fine or probation, and typically don’t include incarceration. Although some offenses can involve criminal activity, most can be resolved by a local Magistrate or law enforcement official that is an appointed or elected representative with specific training and legal or law enforcement experience. If a decision cannot be rendered by this appointed judge or magistrate, the case would then be sent to a higher court for further action, or even a jury trial, if warranted.
Records within these courts must be searched at the local level and are not maintained by the county court. Most employers don’t request a court search of this type due to time, expense and actionable information as it pertains to adjudication within screening policies. This could be a reason that certain convictions disclosed by a candidate are not discovered through the typical scope of a records search program.
County courts are typically located at the county seat and provide the most accurate and current source of criminal record information, as an overwhelming majority of both misdemeanor and felony cases originate and are heard at this level. Certain states breakdown county courts further into district courts (lower courts) and circuit/superior courts (upper courts). Misdemeanors and felony cases can be heard at either court level; however, depending on the charge level (felony or misdemeanor), the case may be transferred to a higher court for trial or appeal.
Both lower and upper county courts should be searched to insure the delivery off comprehensive information. It is always best practice to search where an applicant has lived and worked. If the applicant is a new college graduate, you may want to also consider searching the county court where the university they attended is located. Focusing effort on where a candidate spends most of their time will yield the best results.
Many states operate a central record repository that receives criminal information (including felonies and certain misdemeanors) contributed by law enforcement agencies, prosecutors, county courts and corrections agencies throughout the state. These repositories compile the information into a state criminal history records database made available to criminal justice personnel and non-criminal justice agencies, like background screening firms, that are authorized by law to obtain the records for purposes such as employment screening and occupational licensing.
Although a few states maintain these repositories with complete and accurate information that is consistently updated in a timely manner, including all reporting county jurisdictions, most do not. Many counties do not report to these state databases on a regular basis due to limited budgets and personnel. In addition, in many of these databases records lack critical case identifiers, certain misdemeanor cases and final disposition. In some cases, there is no way to know where the case was handled. It is best practice to insure that any felony convictions reported from a state repository are verified at the county level whenever possible.
Best practice is to include both a county search and a statewide search on each candidate where the statewide repository is of good quality or there is a database compiled of county records in a state (an "all county" search). Where applicable, a statewide search should be conducted in every state where an applicant has lived and even worked.
Federal crimes will not appear in statewide or county court record searches. It is often assumed that a federal criminal record search implies a search of the entire federal court system, or even implies a national criminal search - neither of these assumptions is correct.
Federal jurisdictions, or districts, are typically broken down into regions and that coincide with county borders. There are over three hundred federal districts across the United States and every state has at least one district, and up to four, depending on size of the state and overall population.
Federal records include criminal complaints brought by the U.S. government against defendants for violation of federal criminal law. Crimes such as bank robbery, embezzlement, drug trafficking, crimes committed across state-lines, or tax evasion are examples of offenses that would fall under federal jurisdiction. Best practice would indicate that one should conduct a search of federal criminal records in all districts within the state where a subject has lived and worked.
A national criminal records database is a privately held database that includes criminal records and information compiled from county courts, the Department of Corrections (DOC) and Administration of the Court (AOC), prison inmate records, are included within the database. This includes any jurisdiction that allows electronic access and the ability for non-law enforcement entities to aggregate and store such information. Many databases also include state sex offender registry data, information pertaining to national and international terrorist watch lists (OFAC), and sanctioned parties’ lists held by various governments.
The information contained within these databases includes hundreds of millions of records, both current and historical. These databases should be used as a tool for conducting additional research and any potential hit on a given applicant should be confirmed/verified at the original reporting jurisdiction to ensure accuracy and FCRA compliance. A National Criminal Records Database search is an excellent tool that can be used to "fill in the gaps" that may be caused by only searching areas where the applicant has lived or worked. The result could be the opportunity to uncover additional criminal offenses that may have occurred outside of an applicant’s listed residence history; however, this search should never replace county and/or statewide criminal searches for proper due diligence.
A true national criminal records search or database, where all criminal county, state, and federal records are centrally stored, does not exist. Many people inaccurately refer to the Integrated Automated Fingerprint Identification System (IAFIS), which is housed by the FBI’s NCIC (National Crime Information Center), as a "national database." This is a misconception for the same reason that statewide repositories do not include all records from that state. There are often serious lapses in the reporting of data from all states to the FBI. In addition, only law enforcement and government agencies, authorized by state and federal law, can access the database via fingerprint for law enforcement matters and to fulfill federal and state background check regulatory requirements. There are severe penalties for unauthorized access to, or purchase of, this data.
The most significant issue with the FBI database is the inconsistencies and lack of current information in the system. An independent study conducted by the National Association of Professional Background Screeners (NAPBS) revealed that the FBI database missed 11.7% of criminal records that should have been identified. Even more disturbing was the fact that of the more than 10,000 criminal records found, 5.5% of them were falsely attributed to those who were never convicted of a crime. This study supports the methodology of searching at the county level where criminal charges are first entered into record and where one can depend on receiving the most accurate and up-to-date information.
Employers dealing with the care of children, the elderly or vulnerable classes, healthcare, banking, security or public transportation, among others, have certain federal and/or state legal guidelines that dictate which criminal searches are required. EBI can help employers identify these compliance measures based on a specific industry and position, and design a program that meets state and federal laws.
EBI, along with the NAPBS continues to focus on developing “best practices” for conducting effective criminal search programs. The ideal background check should be accurate, comprehensive, consistent, timely and, compliant. At EBI, we are court experts and we utilize highly qualified court researchers that are fully vetted with specific jurisdictional knowledge required to deliver the highest quality information in the most efficient and timely manner. We monitor thousands of courts daily, track changes, delays and closures and keep you informed throughout the entire process.
No matter if you are a small business, national employer, or a global enterprise, let EBI design a comprehensive and cost-effective criminal records search program to help any employer meet their due diligence obligations.
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All information contained herein is provided by Employment Background Investigations solely for the convenience of its clients. EBI is not providing legal advice or counsel and nothing provided on this document should be deemed as legal guidance or advice. Readers should consult with their own legal counsel to determine their legal responsibilities or if they have questions on any information provided by EBI.