U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Criminal Justice Information Policy.I Statutes Requiring the Use of Criminal History Record ~nformation June W1, NCJ-1298% U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Steven D. Dillingham, Ph.D. Director Acknowledgments. This report was prepared by SEARCH Group, Inc., Gary L. Bush, Chairman, and Gary R. Cooper, Executive Director. The project director was Sheila J. Barton, Director, Law and Policy Program. This report was prepared by Paul L. Woodard, Senior Counsel. The federal project monitor was Carol G. Kaplan, Chief, Federal Statistics and Information Policy Branch, Bureau of Justice Statistics. Report of work performed under BJS Grant No. 87-BJ-CX-K079, awarded to SEARCH Group, Inc., 731 1 Greenhaven Drive, Suite 145, Sacramento, California 95831. Contents of this document do not necessarily reflect the views, policies or legal analyses of the Bureau of Justice Statistics or the U.S.Department of Justice. Summaries and paraphrasings of legal provisions are those of the author. Copyright O SEARCH Group, Inc. 1991 The U.S. Department of Justice authorizes any person to reproduce, publish, translate or otherwise use all or any part of the copyrighted material in this publication with the exception of those items indicating that they are copyrighted or reprinted by any source other than SEARCH Group, Inc. The Assistant Attorney General, Office of Justice Programs, coordinates the activities of the following program offices and bureaus: the Bureau of Justice Statistics, National Institute of Justice, Bureau of Justice Assistance, Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Table of Contents introduction 1 Overview 1 Structure and Content 2 Table 1 Summary of state statutes requiring the use of criminal history record information by state and category 3 Part I: Bail Decisions 5 Table 2 Statutes requiring or permitting prior criminal records to be considered in bail decisions 7 Part ii: Sentencing 11 Upgraded Charges 1 1 Enhanced Sentences 12 Habitual Offenders 13 Probation Eligibility 14 Presentence Reports 15 Table 3 Statutes providing for upgraded charges for offenders with prior convictions 17 Table 4 Statutes providing for enhanced sentences for offenders with prior convictions 24 Table 5 Statutes authorizing sentencing of penistent recidivists to enhanced terms as career criminals or habitual criminals 36 Table 6 Statutes that require or permit consideration of prior criminal history in decisions concerning probation 42 Table 7 Statutes authorizing presentence reports that shall or may include prior convictions 47 Part Ill: Correctional Ciassiflcations 51 Table 8 Statutes authorizing consideration of criminal history in correctional classification and supervision 52 Part IV: Parole Eiigibllity 55 Table 9 Statutes providing that parole eligibility shall or may be affected by prior convictions 57 Part V: Possession of Firearms by Convicted Felons 63 Table 10 Statutes making possession of a firearm by a convicted felon a criminal offense 64 Part Vi: Criminal History Record Databases 67 Appendlx List of Official Code Compilations to Which Citations Refer 71 Introduction Overview criminal involvement of persons pro- Studies and surveys have suggested cessed through the system. From the that as many as two-thirds of the This report compiles and describes initial police encounter with law- persons arrested for criminal offenses Federal and State laws1 dealing with breakers or suspects to the final deci- have prior criminal records, often crimes and criminal procedures that sion by corrections officials to release including offenses in more than one require for their implementation in- sentenced offenders from supervision, State or jurisdiction. For example, formation about an offender's past the criminal history record, more than Federal Bureau of Investigation (FBI) criminal involvement. Included are any other document, is the foundation officials estimate that of all Federal provisions dealing with possession of for criminal justice decisionmaking. and State arrest fingerprint cards firearms or other deadly weapons by In order to properly implement the processed by its IdentScation convicted felons, release of arrested statutes collected in this report, po- Division (which includes persons on bail, charging and sentenc- lice, prosecutors, judges and correc- submissions for most of the arrests in ing of offenders, correctional classifi- tions officials must be able to deter- the country for serious offenses), two- cation of sentenced offendersand the mine, accurately and in a timely thirds of the arrest subjects are release of offenders on probation or manner, not only whether particular determined to have prior arrests. parole. All of the laws listed in the individuals have prior records, but Further, of the criminal subjects in 10 tables in the report expressly refer also the extent and nature of prior the FBI's automated files of State and to criminal history record information criminal involvement, including such Federal offenders, an estimated 25 to as a required or permissible basis for matters as whether arrested individuals 30 percent are multi-state offenders; decisionmaking. All of them either were charged, prosecuted and con- that is, they have arrests in more than provide that such information shall or victed, what the conviction offense one State or have both Federal and may be made available to particular was; whether it was a felony; whether State arrests? As the analysis set officials for particular criminal justice it involved violence or the use of a out in subsequent sections of this purposes or require that past criminal weapon; whether the individual was report demonstrates, prior criminal conduct shall or may be considered in on bail, probation or parole at the involvement should influence the making particular decisions affecting time of the offense or has a history of manner in which individuals are offenders. violation of release conditions; processed through the criminal justice As Table 1shows, all of the whether a sentence of imprisonment system, with regard to such matters States and the Federal government was imposed and served, and whether as eligibility for bail, probation or have at least several laws that require the individual remained free of crimi- parole, prosecution and sentencing as designated criminal justice practition- nal involvement for specitled periods repeat or habitual offenders, and ers to consider past criminal records of time between offenses. eligibility for particular correctional in carrying out their duties and many The report seeks to re-emphasize programs or incarceration in States have one or more provisions of the importance of complete and minimum or maximum security every type of statute discussed in this accurate criminal history records to facilities. Clearly, if accurate and report. This extensive body of laws the criminal justice practitioners who current information about an emphatically demonstrates the extent use and contribute to the nation's offender's prior criminal record is not to which the effective operation of the State and Federal criminal record available in a timely manner, the criminal justice system depends upon databases, as well as to the effective enforcement of many of the the timely availability of accurate and policymakers who conceive and enact laws catalogued in this report is complete information about the past laws such as those compiled here that seriously compromised. depend for effective implementation upon the ready availability of accurate and complete criminal history records. Estimates provided by Mr. William lThe tables and narrative also refer to H. Garvie, Section Chief, Automated state constitutional provisions and Fingerprint Processing Section, court rules. In the narrative, these Identification Division, Federal Bureau provisions are included in the terms of Investigation. See Part VI for a "statutes," "laws" or "legal description of Federal and State criminal provisions." record databases. Statutes Requiring the Use of Criminal History Record Information Structure and Content Part IV lists and analyzes statutes Fifty-four jurisdictions are that expressly require or authorize examined in this report: fifty states, In Part I, the report lists and parole boards to consider an inmate's the District of Columbia, the discussesFederal and State legal prior criminal record in Commonwealth of Puerto Rim, the provisions that expressly require or determinations regarding release on U.S. Virgin Islands and the United permit consideration of an arrested parole or that prohibit or limit parole States government. The study person's prior criminal record in eligibility because of prior methodology included a survey of deciding whether and under what convictions (Table 9). criminal justice officials throughout conditionsto release the person on In Part V, the report lists and the country and extensive library bail. The provisions are listed in discusses Federal and State laws that research that was concluded in Table 2. make ownership or possession of a October 1990. Every effort has been Part I1 discusses statutes that ex- f i , or other deadly weapon, by a made to ensure that the tables are pressly require or authorize courts person who has previously been accurate and complete. Given the and, in some cases, prosecutors, to convicted of a felony, a criminal breadth