Can’t get away from my past — introduction

Many people experience long term civil disabilities as a result of having been arrested or charged with a crime. They may be unable to join the military, get a job or find housing. This post is the first in a series breaking down this complex problem. It introduces some basic concepts and policy challenges.

Locations of criminal record information

An arrest, with resulting court and correctional involvement, creates a trail of information that spans multiple physical locations.  In Massachusetts, however, it useful to think of criminal record information as existing in three basic sectors: Law enforcement, the justice system and the private sector.

Sector	Location	Event triggering creation	Incident information -- date, charges	Case facts -- details of incident	Identification data -- names, DOB, SSN	Personal data -- gender, race, height, tatoos, etc.	Biometric data -- fingerprints, Iris scans	Disposition data -- dismissal, acquittal, conviction, sealing
Law Enforcement	Police Station	Arrest	Yes	Yes	Yes	Yes	Yes	Mostly no
Law Enforcement	State Police	Arrest	Yes	No	Yes	Yes	Yes	Mostly no
Law Enforcement	Interstate Identification Index (FBI)	Arrest	Yes	No	Yes	Yes	Yes	Mostly no
Justice System	Court House	Complaint filing and subsequent court events	Yes	Yes	Yes	Partial	No	Yes
Justice System	Probation Commissioner	Arraignment and subsequent court events	Yes	No	Yes	Partial	No	Yes
Justice System	Criminal Justice Information Systems	Feed from probation commissioner	Yes	No	Yes	Partial	No	Yes
Justice System	Prisons, Houses of Corrections	Incarceration	Often	Often	Yes	Yes	Yes	Yes
Private	News/Internet	Arrest, Court Events	Often	Often	Often	Often	No	Often
Private	Background Checking Firms	Arrest, court events, news, background check request	Often	Often	Often	Often	Mostly no	Often

Several observations are worth making about the chart above:

• Law enforcement records are all created at the time of arrest — local police systems send fingerprints to the state and federal systems to check identity.
• Justice system records are created over time as the arrest is processed.  Local police bring the arrest to the courts as a complaint and then through a series of events, the complaint is brought to final disposition.
• At every location where an encounter is processed, an effort is made to manage “identity” — in other words, to determine whether the person has been in the system before and to associate repeat encounters. Biometric data, like fingerprints, are the most reliable way of consolidating identities, but are only consistently used by law enforcement.
• In Massachusetts, the law enforcement and justice systems are not linked at the back end — the case records in the court and probation systems are not authenticated by fingerprints and do not include numbers that link back into the fingerprint-authenticated state and federal arrest records.

Policy Challenges

1. The statutes governing the disclosure of justice system records have been heavily debated and repeatedly modified through the years and have become very complex.  There is substantial confusion among people with records, the general public, and even practitioners as to what history disclosures those statutes allow.
2. Standards for use of disclosed justice system records to make decisions about housing, employment, licensing and other matters are dispersed across hundreds of statutes and regulations (and myriad private sector policies).
3. While the disclosure of justice system records and federal law enforcement records are carefully circumscribed by statute, disclosures at local police stations are not so clearly regulated.  In conversations with police leaders some understand their records to be confidential, while others feel that they would be obliged to answer a random inquiry of the form “Do you have any arrest records about person X?”.
4. The necessary and appropriate public disclosure of information at multiple stages of the court process, when combined with the progress of web-based information technology, results in wide long-term private sector availability of information about criminal records.
5. The lack, in Massachusetts, of a fingerprint (or numeric-link to a fingerprint) in the court system records means that it is not possible to consistently associate dispositions in the court system (conviction, acquittal, dismissal, sealing) with the original arrests.  The lack of disposition information for Massachusetts arrests appearing in the law enforcement systems means that background checks that query those systems will reveal the arrest, but not the subsequent disposition which may have been a dismissal or acquittal.  Additionally, even if the case was sealed in the justice systems, the sealing order is not reflected in and can have no effect on the law enforcement systems.  Finally, of course, the lack of biometric authentication reduces the accuracy of identifications in the justice system records.