Fantastic Beasts of the Background Check World: the "national criminal search"


Every investigator gets phone calls like this. The tone excited, the tenor demanding. How can you, sir, charge so much money for a background check when other firms offer "national criminal record checks" for $24.95?

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Our response is: Do you want to buy a griffin? A hippogriff (half-horse, half-eagle, 100% fantasy)? Time to review Fantastic Beasts of the background check world.

The national criminal check is a myth. What constitutes a “national criminal check” or “nationwide employment criminal background” as the product is often described? Usually, the firm offering this search is checking a compilation of conviction data--people who actually were sentenced to prison. However, only a very small percentage of people charged with crimes ever do any prison time. National offender databases are misleading: they miss charges that have been pled out, dismissed, not prosecuted (nolle prosequi, the legal term of art meaning the prosecutor is unwilling for some reason to pursue the case).

How do you actually check for Criminal Records?

Everyone is familiar with scenes from movies where a law enforcement agent runs a quick database check and gets an entire criminal history in seconds. In real life, things tend to be a bit more convoluted.

One database used by law enforcement is the National Crime Information Center (NCIC) and it is
typically limited only to law enforcement. While the closest thing to a national criminal records database, even NCIC data is riddled with gaps, with as many as 50% of all criminal cases failing to hit the database. So how do you proceed to check a person for crimes committed across 50 states in the USA?

Convictions data is a start but we always go back to the primary sources of criminal records: the state court system. On the state side, this means searching a higher court (Superior Court) that handles major crimes in a particular county, as well as lower courts with more limited jurisdiction. These courts are called district courts or municipal courts. Don’t make the mistake of skipping this step as district courts can hear cases involving serious criminal matters; for example in Massachusetts, some felony cases are found in district court. And access to the dockets still remains mixed: Massachusetts still keeps criminal records off the internet; you need to look at the index in the court.

And on the federal side, you will be checking for criminal cases in the national PACER system.

So just beware when you are conducting a criminal background check for employment or any other purpose: to do it right, the investigator may need to leave the office and review records ((paper or database) at the courthouse. Be certain that you are buying more than the fantastic beast of a "national criminal check" which is usually just convictions data.

Background Check Myths - The National Criminal Check

Every investigator gets phone calls from this person. The tone excited, the tenor demanding. How can you, dear sir, charge so much when other firms offer "national criminal record checks" for $24.95?

Time to review Fantastic Beasts of Background Myths: what constitutes a “national criminal check” or “nationwide criminal background check” as the product is often described.

The national criminal check is the hippogriff of the industry, a complete myth. Usually, the firm offering this search is checking a compilation of conviction data--people who actually were sentenced to prison. However, only a very small percentage of people charged with crimes ever do any prison time. National offender databases are misleading: they miss charges that have been pled out, dismissed, not prosecuted (Nolle prosequ, the legal term of art meaning the prosecutor is unwilling to pursue the case).

Everyone is familiar with scenes from movies where a law enforcement agent runs a quick database check and gets an entire criminal history in seconds. In real life, things tend to be a bit more convoluted.

One database used by law enforcement is the National Crime Information Center (NCIC) and it is typically limited only to law enforcement. And even NCIC data is riddled with gaps, with as many as 50% of all criminal cases failing to hit the database. So how do you proceed to check a person for crimes committed across 50 states in the USA?

Convictions data is a start but we always go back to the primary sources of criminal records: the state court system. On the state side, this means searching a higher court (Superior Court) that handles major crimes in a particular county, as well as lower courts with more limited jurisdiction. These courts are called district courts or municipal courts. Don’t make the mistake of skipping this step as district courts can hear cases involving serious criminal matters; for example in Massachusetts, some felony cases are found in district court.

And on the federal side, you will be checking for criminal cases in the national PACER system.

So just beware when you are scanning someone for a criminal history: to do it right, the investigator will probably need to leave the office and pull some paper records. A thorough investigation will take more than just a database search.

Misguided CORI reform

Massachusetts today unveiled its new iCORI system for criminal background data. According to the Boston Globe, some community groups want to cut off access to this data, citing problems with investigators who go to courthouses and obtain original records with additional information about the crimes.

These groups are attacking the very procedures recommended under federal law and by industry experts to avoid mistakes in background checks. In effect they want to ban users of iCORi who search out original documents. In effect, they want to forced employers to act on a dry sparse records for fear that, say details about, say a habitual offender who seems to prey on women, should come to light.

Governor Patrick signs CORI Reform

The new Criminal Offender Record Information law (CORI) prohibits employers from asking on an “initial written application form” about an applicant’s “criminal offender record information,” which includes information about criminal charges, arrests, and incarcerations. The term “initial written application" in the new text may allow employers to continue to question applicants about felony and certain misdemeanor convictions later in the process. Moreover, the law does not address classic court docket research conducted by investigators.

Real CORI reform

The movement to "reform" CORI by making record sealing easier and restricting public access sounds wonderful. But it ignores the fundamental problem with the database. Those who know public records in Massachusetts understand that CORI--which has never been accessible in full by the public except to those who order their own report--has always been a misleading source of criminal record data. CORI can be difficult to understand and does not contain any case background information. Moreover, it is based on records that have been considered public for decades. A federal judge came close in one case to overturning the CORI law by deeming the information to be essentially computerized records of court dockets, which have traditionally been open public records.

Instead of telling businesses how to hire, we should allow businesses to gather as much information as they deem necessary--many of them routinely make better judgments than elected officials. More to the point: businesses will continue to hire investigators to check public court documents to gather the information they need to run their businesses.

Sealing federal records

Reporter Michael Doyle did a nice summary of a year-long study by Tim Reagan and George Cort for the Federal Judicial Center on the practice of sealing federal cases.

Sealing federal records apparently is justified for almost any reason under the sun. Doyle notes the report findings: "There was one (criminal) case sealed because the defendant had a high profile. According to the judge, 'it seemed a good idea at the time.' Another reason for sealing: "A person of influence failed to respect the authority of an officer on federal land." Four civil cases were sealed to protect the reputation of doctors.

How to do a background check in Massachusetts

The big problem facing HR people is balancing costs with coverage. For example, some firms offer a "statewide criminal check" or even "national criminal check". Often times they are simply checking a database of convictions only -- a small universe of people compared to those who are charged. So if your guy has a record of being charged with sexual assaults against women in the workplace, but somehow pled out to misdemeanors or had the cases dismissed, a statewide convictions database would give you no reason to pause.

By searching the lower district courts for any cases filed, your background due diligence would allow you to find the cases and make your own evaluation. This is especially true in certain states such as Massachusetts, where the lower courts hear some felony cases, assaults, and various other serious crimes.