The call for stronger background checks following the heartbreaking Parkland, Fla. school shooting represents another national tragedy which brings attention to the porous and incomplete record repositories the government relies on to keep citizens safe. Until our national leaders provide the resources and garner the support necessary from record providers to improve the availability and completeness of record information (particularly criminal history and mental health records) “all” background checks, dependent on these same records, will experience gaps resulting in potentially disastrous consequences.
Today, there remain significant gaps in the criminal and mental health records provided by each state to the federal government. Since the federal government is unable to mandate that the States provide criminal and mental health records, it is done on a voluntary basis, meaning, that some records never make it into the databases, and others are incomplete or unclear. Incomplete record systems that the current National Instant Criminal Background Check System (NICS) gun check, and national security background investigation programs depend on, frequently impacts the reliability and quality of the approval and/or adjudicative process…resulting in wrongly, giving people access to guns and national security information.
Criminal History Record Information
Record access and completeness varies, sometimes dramatically, based on the source, type of record, and level of cooperation provided. For example, to obtain the best, most complete Criminal History Record Information (CHRI) an agency must use three methods; electronic data searches of the National Law Enforcement Telecommunications System (NLETS) and statewide repositories; mailed inquiries; and agent/investigator engagements at the local police department or courts. There is no one method that guarantees full and complete CHRI for each state and jurisdiction. In fact, “there is no single government database containing complete and up-to-date records regarding a person’s criminal history”. With approximately 17,000 law enforcement agencies in the U.S. holding CHRI material, the completeness and quality of these records fluctuate considerably.
In the case of a NICS background check, a name and descriptor search (electronic only) is conducted to identify any matching records in three nationally-held databases managed by the FBI Criminal Justice and Information Services (CJIS) Division and, when applicable, requests a search of the Department of Homeland Security‘s U.S. Immigration and Customs Enforcement (ICE). The below information provides statistical data regarding the databases searched:
- Interstate Identification Index (III): The III (known as triple “I”) maintains subject criminal history records. As of December 31, 2016, the III records available to be searched by the NICS during a background check numbered 73,856,583.
- National Crime Information Center (NCIC): The NCIC contains data on persons who are the subjects of protection orders or active criminal warrants, immigration violators, and others. As of December 31, 2016, the NCIC records available to be searched by the NICS during a background check totaled 6,162,171.
- NICS Index: The NICS Index, a database created specifically for the NICS, contains information contributed by local, state, tribal, and federal agencies pertaining to persons prohibited from receiving or possessing a firearm pursuant to state and/or federal law. Typically, the records maintained in the NICS Index are not available via the III or the NCIC. As of December 31, 2016, there were 15,810,039 records in the NICS Index.
- ICE: The relevant databases of the ICE are searched by the NICS for non-U.S. citizens attempting to receive firearms in the United States. In 2016, the NICS Section and the Point-of-Contact (POC) states (states that have implemented a state-based NICS program) sent 221,563 such queries to the ICE.
Steps for Addressing CHRI Record Access and Completeness
When conducting only electronic searches of CHRI databases, criminal record information that does not reside in these databases will routinely be missed. The shortfall in the completeness of CHRI information has been an issue that the FBI and their state and local partners continue to work hard to improve, however many shortfalls continue to exist. As identified in the “Record Access Task Force” report provided to Congress in May 2014 following the Aaron Alexis Navy Yard Shooting, “state and local jurisdictions face a number of constraints that limit their ability to provide full and complete criminal history record information in response to Federal background check requests.
Several reasons were identified that included: (1) securing sufficient staffing and material resources; (2) adequate record collection and dissemination standards/practices; (3) accurate understanding and awareness of Federal laws germane to Federal background investigations and criminal history record collection; (4) lack of clarity in the existing legal framework; and (5) physical and technical matters.” Although Congress provided clarifying language changes to Title 5, Section 9101, the other recommendations for improving CHRI database completeness received no subsequent legislative or appropriation support.
Mental Health Record Check
Although there are many similarities in the challenges and possible solutions to improve the completeness and availability of mental health records, as those identified with criminal history information, mental health records present even bigger hurdles.
Under 18 U.S.C. § 922(d), it is unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person “has been adjudicated as a mental defective or has been committed to any mental institution.” While many states have made noteworthy progress in submitting mental health records to the FBI NICS system, significant obstacles remain. The Justice Research and Statistics Association (JRSA) stated that “currently, there are several factors impacting the sharing of available mental health information; there is a lack of funds to build an infrastructure for electronic information sharing; technical challenges making disqualifying records available to NICS, and significant policy challenges – particularly related to privacy concerns in sharing mental health records. Except for mental health-related criminal case dispositions, which are found in the criminal history records accessed via III, the federal prohibition mental health category relies on health information rather than criminal justice system information. Unfortunately, mental health records are distributed across multiple private and state institutions, such as, private and state hospitals, state mental institutions, state health agencies, and in civil court records. In addition, patient privacy protections in many of these organization, as well as in state regulations and statutes, typically preclude the sharing of these records with third parties – including criminal justice agencies like the FBI. Mental health records are also often missing personal identifying information, which NICS requires in order to properly match records to potential firearm purchasers.”
Even if it were possible to clear all the hurdles associated with complete mental health records (infrastructure for electronic information sharing, making disqualifying records available, and addressing policy concerns in sharing mental health records) management, we have to realize one of the most sobering statistic as it relates to mental illness – only 40% of individuals with mental and/or substance use disorders get treatment.
What’s Needed? A Plan for State and Federal Cooperation
In recognition of the challenges associated with obtaining complete criminal and mental health information, the U.S. Attorney General’s Office sent a letter to each state governor that encouraged them to participate in providing information to the mental health category of the NICS Index, updating criminal history records with disposition information, reporting relationship information on the criminal history record as it pertains to misdemeanor crimes of domestic violence, and encouraging each state to review the option of serving as a NICS point-of-contact state (if not already).
While encouragement is helpful, it is not a plan. A stronger and more complete criminal and mental health records system is absolutely possible; however, it will take a commitment on the part of our federal and state governments to put a “quantifiable” plan in place to collectively address the legal, policy, funding, staffing, and technical requirements to make it possible. It should not take a continued cycle of national tragedies to repeatedly bring our leadership’s attention back this important issue.