As staff members of the Virginia State Crime Commission were reviewing the state’s Central Criminal Records Exchange, they made a stunning discovery: The state court system had recorded about 11 million convictions dating to 2000, but the criminal records database showed only about 10.2 million convictions. More than 750,000 records were not in the system maintained by the Virginia State Police, including more than 300 murder convictions, 1,300 rape convictions and 4,600 felony assault convictions.
This is the database that courts and police use to check a person’s prior record, often to determine what charge or sentence is appropriate. It’s a database that state police in Virginia, and around the country, use to determine whether someone is eligible to buy a gun. It’s what state agencies and employers check to see if someone has a conviction that might disqualify them from working at, say, a child-care center. It’s also the repository for fingerprints that investigators use when trying to match a print at a crime scene to a possible perpetrator.
“What I can discern is there is confusion and breakdowns,” said state Sen. Mark Obenshain (R-Harrisonburg), chairman of the crime commission, “and these need to be resolved. The list of the offenses is pretty staggering.”
The crime commission, which researches justice issues and recommends solutions to the Virginia General Assembly, determined that the problem stemmed from failures to enter a defendant’s fingerprints into the system when he or she was charged. If that step is missed, no record of a person’s arrest is in the database. About 90 percent of the 751,154 missing records, or more than 675,000, lacked fingerprints. Another 76,000 were missing due to other errors.
Of the cases with missing fingerprints, 35 percent are felonies and 65 percent are misdemeanors, the crime commission found. But the misdemeanors can involve drug charges, assaults, drunken driving and family abuse, all of which could be disqualifying convictions for anyone seeking a gun or a professional license.
Missing fingerprints can also prevent police from solving crimes. “That’s probably the most worrisome,” said Henrico County Police Chief Humberto I. Cardounel, who is in a group of law enforcement and courts officials trying to figure out how the problem arose and how to fix it. “Our fingerprint system is only as good as what’s in it. If prints aren’t entered, you run the risk of submitting a set of latent prints [from a crime] and not getting a match” with a suspect who should have been in the system, Cardounel said.
Typically, a defendant is fingerprinted for a felony, Class 1 or Class 2 misdemeanor at the time of the arrest, and the prints and charges are sent electronically to the state police with a document control number for each charge. When a conviction or acquittal comes in with the same control number, it is added to the person’s record.
But there are many ways that process can break down. One way is when a person is arrested and released on a summons, often for marijuana possession, without being taken to jail. Officers and deputies normally don’t take fingerprints from a person who is arrested on the street, officials said. When the person goes to court and is found guilty, or mails in a fine, the prints sometimes aren’t taken at the courthouse.
More than 70,000 narcotics convictions, more than 70,000 simple assault convictions and more than 37,000 drunken driving convictions are not in the state database, the crime commission found in a report issued Oct. 11.
Felonies have also been omitted. In addition to rapes and murders, more than 2,500 robbery convictions and nearly 1,500 weapons convictions are missing from the database. One suspected problem, crime commission Executive Director Kristen Howard said, is when a defendant is charged with multiple counts but the fingerprints are only attached to one count that winds up dismissed. Or when a new charge might be added as part of a plea deal, and the original charge is dismissed.
Though 96 percent of Virginia’s jurisdictions now use the Live Scan imaging machine to capture and transmit fingerprints, it was gradually adopted across the state beginning in 2000, meaning old-school ink fingerprints on cards may belong to defendants with multiple charges. Even on Live Scan, one set of prints can be applied only to a maximum of 15 counts, so a person’s fingers must be scanned again for additional charges, Lt. Keenon Hook of the state police said.
Another problem may occur with direct indictments, when a defendant is indicted without being arrested and booked on a warrant. In some courts, defendants may appear for their indictment, then leave the courthouse without being fingerprinted. Smaller counties may not have the personnel to manage fingerprinting at every possible stage, officials said.
“At the conclusion of these cases, everyone assumes that someone else has gotten the fingerprints,” said Del. Rob Bell (R-Albemarle), vice chairman of the commission and a former prosecutor now in private defense practice. “With the more serious charges, by having more people involved, it makes it less clear who’s responsible. We’re going to establish a default method and make sure it doesn’t happen going forward.”
The state police have a staff of 120 people who maintain the Central Criminal Records Exchange, and they work full time to remedy discrepancies. When a case enters the courts but no fingerprints or arrest record have come from the police or sheriff, letters go out to the arresting agency, Hook said. That results in about 10 to 15 percent of the incomplete records being completed.
The rest go into a “hold file” at the records exchange, where more than 30,000 cases per year have piled up in recent years, the crime commission found. Even if a person was convicted of a crime, that wouldn’t show up in a background check because the case was not initially entered into the system.
When a request for a background check comes in and the database doesn’t include the outcome of the case, the state police staff will contact courts or arresting agencies to try to track down the record, often doing so within minutes, Hook said. The same is true for gun purchase checks through the Firearms Transaction Center, where such a background check is, by law, not supposed to exceed three days. He said gun dealers usually wait beyond three days if the check is not completed.
In addition to guns and employment, criminal history records are used for the sex offender registry, the DNA database, and bail and sentencing determinations. Hook said 40 percent of the inquiries to the database are for background checks. He also noted that about 40 percent of the missing felony cases were probation violations, which often have prints on file from the original conviction.
Most background checks will only provide conviction data. But some agencies, such as law enforcement, have access to a person’s entire arrest record.
Howard said the crime commission staff discovered the discrepancy while researching deferred cases involving marijuana. The commission issued 13 recommendations and a series of policy options, including requiring the state police to send monthly notices to agencies involved in an incomplete case and requiring courts to verify that fingerprints have been collected.