HOW TO OBTAIN A CRIMINAL BACKGROUND CHECK

In the United States, different law enforcement agencies create and maintain criminal records at the municipal, state, and federal levels. The main aim of a criminal record is to provide a person with a complete background. Consequently, criminal history information is usually accessible to the public, and criminal history information may usually be acquired through a state agency that keeps the record for a particular State. 

States usually charge a fee for a copy of the criminal record of a person. Private persons may usually get copies of their own records, although they may need a release to get another person’s records.

BACKGROUND

Law enforcement agencies keep criminal records at all levels of government. Local police, sheriff’s offices, and specialized police organizations may develop internal databases of their own. Law enforcement agencies frequently exchange this information with comparable enforcement agencies and usually make this information accessible to the public. 

Anyone, including a private investigator, a criminal investigator, or a bottom line check business, may go to the county court and search the criminal record index on their name and date of birth or have a county clerk looking for specific records. Such a search may provide material about criminal and non-criminal charges which are not abstracted in the chronology of state criminal documents

All states have official ‘state repositories’ of criminal history information that contain information provided by the county, municipal, and state law enforcement authorities. State repositories are generally reliable, although all states have procedures for correcting mistakes in reporting and recording information on criminal history. State criminal history record repositories provide informational services which often influence critical decision-making throughout the criminal justice system and beyond. Repository information has a direct bearing on public safety, homeland security and is a determinant of whether an individual gets the job that they seek 

Individuals may usually get their own records from a State, but a private person will generally have to have disclosure from the subject of the record search to access the information of another person.

For job screening reasons, criminal convictions may be disclosed within seven years of the date of conviction, unless otherwise provided by State legislation. This is known as the seven-year lookback rule. In May 2014, the 9th US Circuit Court of Appeals in  Moran v. The Screening Pro decreed that the period of gauging when a criminal charge was applicable came from the date of entry instead of the date of disposition under the Fair Credit Reporting Act. This meant that the seven-year limit for reporting criminal charges stemming from the filing of the charges rather than their dismissal. The appellate court was responsible for overruling the district court who held that the dismissal of the charge triggered the reporting period. 

WHO RETAINS THE CRIMINAL RECORD

Government entities, most often law enforcement agencies, preserve State criminal history.  Local police services, sheriff’s offices, and specialized police organizations may -as well as state-wide records- maintain their own domestic databases. State punishment agencies must also keep records in connection to criminals condemned to jail or similar provisions which come within their competence. Law enforcement agencies often exchange information in criminal past with other enforcement agencies, and the general public will also be given information in criminal history.

Minor crimes are not included in the state-wide record in certain States or only if they have been submitted voluntarily by the court in which a conviction takes place. In the 2021 session, the Virginia House of Delegates passed a bill that would automatically seal criminal records for more than a hundred and fifty offenses. This move mirrored similar legislation by other states, although House Bill 5146 is still far from being the norm. 

According to the proposed law, anybody convicted of any one of about a hundred and fifty misdemeanor or felony crimes — with the exception of the majority of severe offenses — may have their records sealed automatically if they are not charged with any new criminal offenses within eight years after serving their sentence. Individuals who commit violent or sexual crimes would not be eligible to have their records sealed. Criminal charges that do not result in convictions would be automatically sealed, but they might stay public under certain circumstances.

The federal government also retains the significant criminal history and is a single repository for the reporting of its own data by all departments. The Next Generation Identification (NGI) system is a criminal history information database managed by the Federal Investigative Bureau (FBI). A system of state indicators that provides the gateway to the state that retains administrative authority over the arrest information operates inside the NGI system in its capacity as the Interstate Identification Index (III) system. For the federal agencies, the FBI retains administrative oversight. If a criminal record is sought, the relevant agency will reply to this matter with its criminal record.

WHEN WOULD INDIVIDUALS BE ASKED FOR A CRIMINAL RECORD

Citizens may be requested to provide a ‘certificate of good behavior’ or ‘absence of criminal record’ for a number of reasons, including adoption, attendance to schools, employment, etc. Such a process may not be known to U.S. law enforcement agencies since it is not frequently sought in the United States. There are a number of alternatives for U.S. citizens seeking evidence of their absence.

In the United States, criminal records include arrests, criminal charges, and the outcome of those charges. Criminal records are collected and maintained by government entities, most common law enforcement agencies, at the local, state, and federal levels. Their main aim is to show a broad history of crime for a particular person.

Criminal records may be utilized for various reasons, including background checking, job clearance, adoption, immigration, and licensing in the United States. Criminal records may be helpful in the context of a criminal investigation to identify suspects. They may be used in criminal proceedings for increased sentences.

Regardless of whether the individual has had interaction with law enforcement officials, they may need to ask for any criminal history to find out if they are qualified for an immigration relief or benefits and to evaluate any risk of enforcement action. The United States Citizenship and Immigration Services (USCIS) performs background checks on petitioners and applicants for various immigration benefits as a component of its adjudication process and as required by law. These background checks are conducted in four distinct stages using the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the Department of Homeland Security (DHS). 

Law enforcement contact may appear like numerous things. This would include an arrest for a DUI or receipt of a citation for public dispute or US borders stoppage, arranging for a plea deal with a prosecutor, or even removal or expiration of a conviction.  Even if the record has been erased, or the charges have been finally dropped, a record exists and it is essential to obtain a copy of it so people know what occurred precisely.

HOW TO CHECK IF AN INDIVIDUAL HAS A CRIMINAL RECORD

Criminal background checks generate summary papers, commonly referred to as ‘rap sheets,’ which are simply a list of law enforcement contacts. It is the version of the individual’s criminal history by the authorities. A rap sheet does not include all papers or administrative records related to an event. The rap sheet retrieves information from certain government databases about previous contacts with law enforcement agencies. 

The Federal Bureau of Investigation (FBI) maintains the major federal background checking system. But each state has its own criminal background checking system as well. A lawyer may suggest that both the state and the federal criminal records be requested especially since a state criminal history inspection is distinct from a federal background inspection. The FBI records include information from across the nation, while state records contain just information from that specific state. 

HOW TO SUBMIT A REQUEST TO THE FBI FOR THEIR IDENTITY HISTORY

The FBI offers three options for requesting the Identity History Summary or proof that one does not exist. Primarily the main option would be to electronically submit the request directly to the FBI  as done online. This would require the individual to follow the procedures as enumerated in the summary of personal identity history on the website. 

It must be known that regardless of whether an application to the FBI  is done online, users must visit a participating U.S. post office site to electronically submit the fingerprints as part of the application process. Upon completion of the request, users may go to any of the participating US postal facilities nationwide. There may be additional charges. If users want to choose a U.S. Post Office location, they must complete the application and payment online in order to submit the fingerprints in their application before they visit the U.S. Post Office site.

When customers opt not to utilize a U.S. post office location to submit the fingerprints electronically, individuals may still send the completed fingerprint card to the address given in the confirmatory e-mail, along with the received confirmation e-mail when users initiated the electronic request. The application will proceed as an electronic submission after receipt of the fingerprint card.

The Federal Bureau of Investigation’s (FBI) Criminal Justice Information Services (CJIS) Division centralizes criminal justice data and provides relevant and complete information and benefits to small, state, federal, and international law enforcers, the private industry, academia, as well as other government agencies.

The FBI offers two methods for requesting the FBI Identification Record or proof that a record does not exist. Firstly, the subject of an identification record may obtain a copy of that record by submitting a written request to the CJIS Division. The request must be accompanied by [A.] satisfactory proof of identity (consisting of name, date, and place of birth, and a set of rolled-inked fingerprint impressions) and [B.] a certified check or money order for the current processing fee. The FBI will not provide copies of arrest records to individuals other than the subject of the record. 

If the individual does not follow through with the written request, the subject of an identification record may also submit a request through an FBI-approved channeller, which is a private business that has contracted with the FBI to receive fingerprint submissions and relevant data, collect the associated fees, electronically forward the fingerprint submissions with the necessary information to the FBI CJIS Division, and receive the electronic record check results for dissemination to the individual

An individual requiring an apostille or authenticated copy of their FBI Identification Record, or any non-U.S. national or permanent resident who wishes to request their FBI Identification Record must submit a request directly to the FBI CJIS Division. The U.S. Department of State Authentications Office may then place an apostille document for use in a country that is a party to the Hague Apostille Convention. For countries not a party to the Hague Apostille Convention, the U.S. Department of State Authentication Office will place a certification over the FBI seal.

Criminal documents may be used for many purposes, mainly for background checks, including identification, jobs, safety clearance, adoption, immigration [including international travel or visa,] licensing, support to develop suspects in ongoing criminal investigations, and enhanced criminal prosecution sentences.

There has been major controversy about profitable data-mining businesses, which nationally collected most of the computerized booking records of different police agencies and offered them free of charge on the public Internet and for sale to employers. Although it is often effective to identify applicants with a criminal background, this data generally does not reflect any subsequent prosecution, acquitting, or dismissing charges and the extremely harmful nature of the records can adversely affect the applicant’s job chances and other advantages if the records are not correctly linked to a successive prosecution result. In many instances, records are accessible for seven or more years after acquittals or rejection of charges. 

Furthermore, since records of arrests may sometimes be erroneously linked to people with the same or similar names, the harmful nature of the records accessible, especially violent ones, can adversely impact candidates and candidates if there is no real criminal record otherwise. 

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Sources

1. State police, troops, road patrol, penal institutions, and other law enforcement organizations also keep separate databases at the state level

2. Section 605(a) of the federal Fair Credit Reporting Act limits the reporting of ‘any other adverse item of information, other than records of convictions of crimes which antedates the report by more than seven years.’ (15 U.S.C. § 1681c.)

3. Moran v. The Screening Pros, LLC, No. 12-57246 (9th Cir. 2019)

The plaintiff brought an action against The Screening Pros, a company that offers tenant screening reports to property owners, in 2010 for providing a background check record that included his prior criminal record- including a misdemeanor conviction in 2000 that was dropped in 2004—in violation of the FCRA and the California Investigative Consumer Reporting Agencies Act.

The district court dismissed the claim that the screening company violated the FCRA’s seven-year rule, finding that the reporting period for criminal charges began on the 2004 date of dismissal, not the date of entry.

The Ninth Circuit differed from this ruling, maintaining that the date of filing of the charge was when the reporting period for criminal cases was applicable. The court ‘went further and held that the dismissal of a charge does not constitute an adverse item and may not be reported after the reporting window for the charge has ended’

4. Poggenklass, Rob. ‘Virginia Poised to ENACT ‘Transformative’ RECORD CLEARANCE LAW.’ Collateral Consequences Resource Center, 8 Mar. 2021, ccresourcecenter.org/2021/03/08/virginia-poised-to-enact-transformative-record-clearance-law/. 

5. The bill passed the Democratic-controlled House on a nearly party-line vote of 59-37 and one abstentions.

Four Republicans, including Del. Jeff Campbell, R-Smyth, joined Democrats in voting for the bill.

The measure will now move to the Senate. There has been bipartisan support from this automatic clearing. 

6. ‘Next Generation Identification (Ngi) – Retention and Searching of Noncriminal Justice Fingerprint Submissions.’ FBI, FBI, 20 Jan. 2015, www.fbi.gov/services/information-management/foipa/privacy-impact-assessments/next-generation-identification-ngi-retention-and-searching-of-noncriminal-justice-fingerprint-submissions.

7. ‘Interstate Identification Index (III) National FINGERPRINT FILE (NFF).’ FBI, FBI, 8 June 2016, www.fbi.gov/services/cjis/compact-council/interstate-identification-index-iii-national-fingerprint-file-nff. 

8. ‘Immigration Benefits Background Check Systems (Ibbcs).’ Department of Homeland Security, 10 May 2019, www.dhs.gov/publication/immigration-benefits-background-check-systems-ibbcs. 

9. The relevant website is https://www.edo.cjis.gov

10. ‘Criminal Justice Information Services (CJIS).’ FBI, FBI, 3 May 2016, www.fbi.gov/services/cjis. 

11. Requests should be directed to the FBI CJIS Division, Attn: SCU, Mod. D-2, 1000 Custer Hollow Rd., Clarksburg, West Virginia 26306. If there is no criminal record, a report reflecting this fact is provided. 

12. e-Vision.nl, The Netherlands. ‘Apostille Section.’ HCCH, www.hcch.net/en/instruments/conventions/specialised-sections/apostille. 

13. The Hague Convention on the Abolition of the Legalization Requirement for Foreign Public Documents, often referred to as the Apostille Convention or Apostille Convention, is an international treaty written by the Hague Conference on Private International Law. It establishes the procedures for the certification of a document issued in one of the contractual states for legal purposes in all of the other contracting states. An apostille or Hague apostille is a certification issued under the provisions of the treaty. 

It is an international certification, similar to a notarization under home law, that often complements a document’s local notarization. If the convention is in force between two nations, an apostille suffices to verify the validity of a document, obviating the need for double certification, first by the originating country and subsequently by the receiving country.

14. Sprague, Robert. ‘Legal Framework for Data Mining and Privacy.’ Social Implications of Data Mining and Information Privacy, pp. 181–198., doi:10.4018/978-1-60566-196-4.ch010. 

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