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The questions about criminal background checks.

States will give up some sovereignty but gain important tools with a new compact linking federal and state efforts on criminal background checks.

Should your child's teacher undergo a criminal background check? What about nurses and doctors, attorneys or even your barber?

While such checks have been used for many years in the military, as well as banking and other industries, the number of professionals subject to this scrutiny is set to skyrocket. In response to several high-profile cases of abuse as well as public concern for possible victims, federal legislation requiring checks on prospective foster parents and nursing home employees has recently been adopted.

These politically popular measures are, on the one hand, a relatively inexpensive and nonintrusive way to improve security in sensitive professions. On the other hand, criminal background checks are, in certain circumstances, arguably an invasion of privacy and a threat to personal liberty. Up until now, state legislators have confronted these issues through state laws. Now legislators must decide whether to enter into a new state-federal partnership, the National Crime Prevention and Privacy Compact.

Until recently, all criminal record searches were conducted using a dual state-federal system. The state agency would search its own records and submit an inquiry to the Federal Bureau of Investigation. The FBI would search a record of federal offenders and duplicate records it maintains of state information.

In 1980, the FBI began the Interstate Identification Index (III), a decentralized system designed to handle interstate and federal-state criminal record searches. Thirty-nine states currently participate in III. Although all states permit virtually unrestricted access to criminal history records for criminal justice purposes, state laws governing access and use for other purposes are diverse. Policies range from essentially open records in a few states to very restrictive rules in others. Laws differ on what constitutes a reportable offense, what disposition information (acquittal, conviction, etc.) is available and who can get the information.

For this reason, the III system is limited to use for criminal justice purposes. The only exception is when an applicant fingerprint card is identified with a record by the FBI or a state bureau of identification (even if there is a fingerprint match, dissemination rules are fairly restrictive).

To create a national, decentralized criminal record system, the federal government adopted Public Law 105-251 in 1998. This legislation authorized the National Crime Prevention and Privacy Compact, which will take effect upon ratification by two or more states.

The compact:

* Binds the FBI and ratifying states to participate in the civil access program of the Ill.

* Re-authorizes use by current users of FBI file records.

* Requires participating states to make all unsealed criminal history records available in response to authorized noncriminal justice requests.

* Bases all civil access to the system on fingerprints to ensure positive identification.

* Requires that the laws of the receiving states govern release of information. In turn, those states would be required to screen record responses and delete any information that cannot legally be released.

* Establishes a council of federal and state officials and other members representing user interests to establish operating policies for civil uses of the III system and resolve disputes.

Most strikingly, a state would voluntarily preempt any nonconforming law by adopting the compact. Jurisdiction for disputes would be placed with a federally appointed council of federal and state representatives, and appeals would be made to federal, not state, courts.

Clearly, the compact involves tradeoffs related to state sovereignty, privacy and technical efficiency that state legislators will need to balance. With the public's demand for access to criminal records unlikely to abate, policymakers will need to develop appropriate state-federal solutions.

David Naftzger tracks state-federal issues for NCSL.
COPYRIGHT 1999 National Conference of State Legislatures
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Author:Naftzger, David
Publication:State Legislatures
Date:May 1, 1999
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