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CRIMINAL RECORDS |
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Criminal history investigations: the key to locking up the repeat offender
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In a 1993 drug trafficking case in northern Ohio, all factors, including a computer records check by the arresting agency, indicated that the defendant was a first-time offender. However, queries by the probation officer revealed that the defendant actually was a major out-of-State drug trafficker with numerous prior convictions.
Luckily, the information came to light prior to sentencing, but had the defendant's criminal history been available from the start, the case could have been handled differently. Prosecutors would have viewed the defendant in a much harsher light and could have considered making enhanced, repeat offender charges.
Based on all Federal and State arrest fingerprint cards processed by the FBI, officials estimate that two-thirds of the subjects have prior arrest records. In addition, multi-State offenders - those with both Federal and State records or arrests in more than one State - make up approximately 25 to 30 percent of the group.(1)
Federal, State, and territorial jurisdictions have enacted a variety of statutes that permit or even mandate upgraded charges or enhanced sentences for individuals with prior records. In addition, these jurisdictions often authorize or require that courts impose enhanced sentences for individuals classified as habitual or repeat offenders.(2)
Currently, legislatures nationwide are considering or have adopted mandatory life sentences (commonly known as three strikes and you're out statutes) for repeat offenders. The 1994 Violent Crime Control and Law Enforcement Act passed by Congress, which mandates life imprisonment without parole for Federal offenders with three or more convictions for serious violent felonies or drug offenses, exemplifies this trend. Two factors influence effective enforcement of these statutes: The thorough investigation of suspects' criminal histories and the quality of criminal history records nationwide.
INVESTIGATIONS USING CRIMINAL HISTORY RECORDS
As the 1993 case in northern Ohio illustrates, criminal histories can prove valuable for identifying and prosecuting repeat offenders. Law enforcement administrators and prosecutors should view an offender's prior criminal record as a potential added element of any criminal charge(s) being considered.
To be most effective, however, an offender's criminal history must be detected and legally documented in the preliminary investigative stages. Requirements for legal documentation of criminal histories vary from State to State, but can include a subject's confession to prior convictions, certified copies of the journal entries of convictions from other courts, fingerprint records, and establishment of the functional equivalent of convictions from other States.
Often, investigators discover a lengthy prior record too late, even after a defendant has pled guilty to an offense. This can have a disastrous effect on prosecuting a repeat offender. For instance, in at least one State, prosecutors must charge suspects as repeat offenders within 14 days of the arraignment or they are barred from initiating this sentencing enhancement later in the case.(3)
Guidelines for Initial Records Checks
Law enforcement administrators should be familiar with their State's statutes concerning charge and sentence enhancement and the legal proof required to establish a suspect's criminal history. Such knowledge will help law enforcement agencies develop general guidelines on the scope and depth of investigations into criminal histories. Ideally, all of the following factors should be considered in the development of such guidelines:
* How serious is the current charge? Is it a felony or misdemeanor? Is it a violent, property, or victimless crime?
* Can prior convictions/arrests significantly aid the prosecution and/or enhance the current charge(s) or sentence?
* How recent are prior convictions or arrests?(4)
* Where did the prior conviction/ arrest occur? Is a conviction or arrest in one State the same as in another? For example, does a battery conviction in one State equal an assault conviction in another?
* Does the home State's enhancing statute specifically permit using out-of-State convictions, or must the prosecutor argue that a conviction is functionally identical or equivalent to an in-State conviction to permit enhancement of the current charge.(5)
* Is the prosecutor amenable to upgrading all charges and/or sentences based on prior convictions or just certain ones?
* What resources does the agency have available? How many workhours can be spent detecting and documenting a suspect's prior criminal history?
At a minimum, agencies should consider making National Crime Information Center (NCIC) inquiries using nonbiometric characteristics - name, date of birth, social security number, etc. - for all felonies and for offenses that have the potential for felony status. Using the National Law Enforcement Telecommunications System (NLETS), officers should make inquiries in any State identified by the Interstate Identification Index (III), as well as for the States where the subject was born, resided, and was arrested.
Inquiries based on biometric identification, i.e., fingerprints, can take days to get results. Eventually, the Automated Fingerprint Identification System (AFIS) technologies, when fully operational, will reduce the use of nonbiometric identification because positive identification will be available in minutes. Until then, using nonbiometric identifiers can alert officials in the preliminary stages of an investigation to the existence of a prior record in minutes.
Guidelines for Further Investigation
Not every case merits an indepth followup. With an NCIC printout in hand, investigators can follow the agency's guidelines to determine whether to continue the investigation of a subject's prior record.
One two-step decision model provides guidance in this area. In step one, investigators first consider the seriousness of the current charge and the type of prior record, i.e., an unexplained arrest (where the disposition has not been documented in the system) or a conviction. For example, a current felony charge with a prior enhancing conviction warrants further investigation, whereas a current misdemeanor charge with a prior unexplained arrest does not.
If step one indicates the need for further investigation, then the second step in the model factors in the location and date of the prior record. For example, a current felony charge with a prior enhancing conviction that occurred within the arresting State 2 years ago warrants legal documentation. On the other hand, a current felony charge with a prior enhancing conviction that occurred across the country 20 years ago does not. These general guidelines can be refined further based on prosecutive directives and available investigative resources.
Guidelines for Documentation
Once investigators decide to document a prior conviction for enhancement purposes, they should use fingerprints to establish that the record belongs to the subject. Unexplained arrests should be checked either by teletype or by other means to determine whether they lead to enhancing convictions or even outstanding warrants. If so, fingerprint cards then can be submitted to State repositories to verify the subject's identity.
In cases where the central State repositories do not have fingerprint cards for the arrest or conviction, investigators should check with the original arresting agency, which might have a duplicate set. In cases where no fingerprint cards exist, officers should try other methods of documentation, such as photo identification, any signature the subject may have made at the time of arrest, witness identification, and admissions by the subject.
Law enforcement officials should be particularly alert to suspects with no apparent record whose behavior indicates experience in the system. Tattoos or other signs of affiliation with groups that glorify criminal behavior should be questioned. For example, members of satanic groups, Hell's Angels, Pagans, and prison and other gangs often sport identifying tattoos, wher |
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