Day 1, Session 2, Track A De-Coding Out-of-State Criminal Code Offenses. Sarah Fahrendorf, Esq., CMS James Chips Stewart, CNA

Transcription

1 Day 1, Session 2, Track A De-Coding Out-of-State Criminal Code Offenses Sarah Fahrendorf, Esq., CMS James Chips Stewart, CNA

2 Session Overview NBCP States will describe how they decode out-ofstate background check histories that contain criminal violations/convictions not identical to the host State s disqualifiers. NBCP mandates criminal background checks to determine whether applicants must be disqualified. Criminal code violations prima facie rejection Potential mitigating time from last arrest of record Potential mistakes or incomplete information. 2

3 In This Session Introductions IL perspective on scope of challenge Interpreting FBI Rap Sheets Experiences from AK, FL, KY, MN Case examples Questions for States. 3

4 Challenges Challenges that States experience when interpreting out-of-state criminal histories: Inconsistency of criminal justice terms between States Federal arrests may lack specificity (e.g., lack of case numbers, no specifics on arrests, no indication whether felony or misdemeanor) Interpreting military arrest records can be challenging when State charges are severity based. 4

5 Additional Complexity Convictions resulting from negotiated agreements Approximately 92% of all convictions are the product of a complex negotiation and do not involve an actual criminal trial Only 8% of convictions are a result of a criminal trial. 5

6 Interpreting FBI Rap Sheets Integrated Automated Fingerprint Identification System (IAFIS) response types: I or positive identification fingerprint submitted matched record on file at FBI N or no record response fingerprint submitted did not match record on file at FBI Error (or reject) response fingerprint rejected for data or image quality 6

7 Interpreting FBI Rap Sheets FBI Rap Sheet cover page: 1. Originating Agency Identifier (ORI) 2. IAFIS Control Number (ICN) unique identification number for every IAFIS submission 3. Use and dissemination restrictions 4. Master name 5. FBI Number (FNU) 6. Date requested 7. Sex 8. Fingerprint pattern classification 7

8 Interpreting FBI Rap Sheets Arrest and court data: Arrest Information Court Information Supervision or Custody Wanted Information Sex Offender Registry Information. Source: FBI Criminal Justice Information Service How to Read Rap Sheets 8

9 Case Examples - Alaska Case #1 Applicant s fingerprint results show multiple potential barriers from States outside of AK Individual crimes listed would be past the individual barrier timeframes listed in AK; additional information needed regarding the dollar amount for each crime Needed to compare with AK statutes to determine whether the dollar amounts equated to felonies in AK Two or more felonies in AK would bar the applicant permanently If the dollar amounts do not equate to felonies in AK, the applicant may be issued an eligible determination. 9

10 Case Examples - Alaska Case #2 Applicant s fingerprint results show a charge of a barrier crime in another state from many years ago, with no disposition noted Applicant is sent a Needs More Information letter requesting that the applicant supply specific information so a comparison with AK statutes can be completed Applicant attempts to obtain court documents, but due to the age of the charge, either is unable to obtain them or is told by the court in that State that the charges have never existed (continued) 10

11 Case Examples - Alaska Case #2 (continued) AK would request a certified or notarized letter from the courts stating either that the charges never existed or that the court documents no longer exist After receipt of such a document, and with no other barrier information found, the applicant is issued an eligible determination. 11

12 Case Examples - Florida In FL, theft is disqualifying if the severity of the offense is a felony (value of property stolen >$300) If FL receives a theft offense from another state, FL first will check the statute in the other State for more information: Example: In NY, theft offense under defined as a person is guilty of petit larceny when he steals property If not enough information to make a determination, the applicant is sent a request for an arrest report to determine the dollar amount. 12

13 Case Examples - Florida (continued) Case where a military charge/arrest is comparable to a Florida disqualifying offense with a punishment or sentence (e.g., reduced in rank, confinement, forfeiture of pay, guilty, etc.) Charge/arrest is disqualifying even if it says nonjudicial. 13

14 Case Examples - Kentucky Case #1 Applicant s in-state checks are insufficient FBI Rap Sheet tagged with Approach with Caution In OH, arrested for domestic violence and assault; convicted of 2 counts of assault Due to criminal record, not eligible to work in OH. Applicant not eligible due to violent crime clause in KARES regulations If criminal history check had been conducted only in KY, no criminal history would have been returned. 14

15 Case Examples - Kentucky Case #2 Applicant is out-of-state sex offender Rap sheet showed applicant had been arrested in MD for child sex abuse, 2 counts of second-degree sex offense, perverted/unnatural sexual practice, and battery Due to the time of convictions, she was not on the National Sex Offender Registry Applicant had no criminal history in KY If criminal history check had been completed only in KY, employer would not have found convictions 15

16 Case Examples - Minnesota Case #1 Applicant s record included Possession of THC Wisconsin Statute (3g)(e): If a person possesses or attempts to possess tetrahydrocannabinols, the person may be fined not more than $1,000 or imprisoned for not more than 6 months or both upon a first conviction and is guilty of a Class I felony for a second or subsequent offense There is no substantially similar equivalent in MN: In MN, the disqualifying controlled substance statutes allow for the exception of a small amount of marijuana, defined in MN law as 42.5 grams. (continued) 16

17 Case Examples - Minnesota Case #1 (continued) Because the WI statute does not allow for this exception, it cannot be substantially similar to the MN controlled substance statutes A person in possession of 30 grams of marijuana in WI would be guilty of a crime under Wis. Stat (3g)(e) But in MN, 30 grams would be considered a small amount of marijuana, and not a disqualifying offense. The applicant was not disqualified. 17

18 Case Example NY State Crosswalk NY conducted a comparability analysis of the Federal statutes for all 50 States and Puerto Rico NY Department of Health (DOH) Criminal History Record Checks (CHRC) Program assigned one full-time legal assistant for a year to complete the work Reviewed and compared each out-of-state, Federal criminal, and current NY statute in terms of various elements of crime Created a criminal statute database, with an electronic drop-down menu accessible in the DOH CHRC electronic case file Out-of-state criminal charge can be entered, and the NY equivalent automatically populates into the case file, or vice versa 18

19 Questions for States Questions? 19