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.

SectorLocationEvent triggering creationIncident information -- date, chargesCase facts -- details of incidentIdentification data -- names, DOB, SSNPersonal data -- gender, race, height, tatoos, etc. Biometric data -- fingerprints, Iris scansDisposition data -- dismissal, acquittal, conviction, sealing
Law EnforcementPolice StationArrestYesYesYesYesYesMostly no
Law EnforcementState Police ArrestYesNoYesYesYesMostly no
Law EnforcementInterstate Identification Index (FBI)ArrestYesNoYesYesYesMostly no
Justice SystemCourt HouseComplaint filing and subsequent court eventsYesYesYesPartialNoYes
Justice SystemProbation CommissionerArraignment and subsequent court eventsYesNoYesPartialNoYes
Justice SystemCriminal Justice Information SystemsFeed from probation commissionerYesNoYesPartialNoYes
Justice SystemPrisons, Houses of CorrectionsIncarcerationOftenOftenYesYesYesYes
PrivateNews/InternetArrest, Court EventsOftenOftenOftenOftenNoOften
PrivateBackground Checking FirmsArrest, court events, news, background check requestOftenOftenOftenOftenMostly noOften

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.

 

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Will Brownsberger
State Senator
2d Suffolk and Middlesex District