A disposition is a court’s final ruling on a specific lawsuit or criminal charge. Frequently, criminal history reports include charges, but not all the dispositions of those charges. One reason that a disposition might be missing from a criminal history report is that there is often significant lag time between an individual being arrested and a disposition being issued. The other issue often encountered with dispositions is they are not always sent from the courts to the State police departments and, therefore, are not added to individuals’ rap sheets. Thus, the two primary reasons that a State might not receive a disposition are either that the case has not yet been adjudicated, or the disposition was not reported or recorded in the relevant criminal history database. Complete records of dispositions are key to background checks. This resource document discusses what factors States need to consider as they develop their policies and processes to address the issue of missing dispositions in their background check programs.
What are the National Background Check Program missing disposition requirements?
How prevalent is the problem of missing dispositions?
When does a State need to pursue missing dispositions?
What is the typical process a State agency uses to acquire missing dispositions?
What happens to the applicant’s background check if there is a missing disposition?
Where do States find/obtain missing dispositions?
As stated in the Centers for Medicaid & Medicare Services’ National Background Check Program solicitation, each participating State is required to define a process for how it will handle missing dispositions and explain how this process will fit into its overall fitness determination process.
The June 2006 Attorney General’s Report on Criminal History Background Checks found that the Federal Bureau of Investigation’s Interstate Identification Index system was missing about half of existing dispositions because of inconsistent State procedures for handling missing dispositions. (See Additional Resource 1.) The rate can vary widely from State to State.
If the offense for which the disposition is missing is a non-disqualifying offense, no action is required. However, if the offense for which the disposition is missing is a disqualifying offense, the disposition must be found to complete the fitness determination process. If the individual’s court case is still pending, a final disposition needs to be issued before the background check can be completed.
Once a State agency identifies that a disposition is missing and that there is an existing disposition (i.e., the case is not still pending), the State can either require the individual to submit the missing disposition or the State can attempt to recover the missing disposition on its own.
If the State agency’s method of obtaining missing dispositions is to require individuals to submit their own missing dispositions, the State agency notifies the individual that he or she must submit all of the court rulings regarding the offense in question. Most States will give the individual between 30 and 60 days to submit the missing documents. The State may want to consider whether it is necessary to validate such documents and, if so, how the State will conduct this validation. If the documents are not received within the time period specified by the State, the State agency will notify the individual and the potential employer that the individual has been disqualified for direct access employment.
If the State agency itself (instead of the individual) is responsible for recovering the missing disposition, the State agency will contact the local court system where the offense occurred. The State agency will send an email or call the court clerk or, if the court has a public database, the State agency will search it. In some cases, the State agency’s system is integrated with the court’s database and the State agency can conduct the searches automatically. If the court doesn’t have the missing disposition, the State agency will require the individual to submit it (following the process described above).
An individual’s background check cannot be processed if there is a missing disposition. In most States, the individual’s application is suspended until the missing disposition is received. Typically, States place a time limit on how long the application can remain in “pending” status, such as if the missing disposition is not found or is not issued within 60 days. In a few States, individuals can be disqualified based on an arrest, so if a disposition cannot be found or has not been issued the State will disqualify the individual (if the arrest is a disqualifying offense).
The National Criminal History Improvement Program’s (NCHIP) goal is to insure that accurate records are available for law enforcement purposes. The NCHIP, through the Department of Justice’s Bureau of Justice Statistics, found that States obtain their missing dispositions from a range of sources. According to the NCHIP, the primary source for 25 States and the District of Columbia is the court system; the primary source in 12 other States is a statewide court administrator system; and the primary source in 5 other States is the prosecutor’s office. For example, Michigan makes automated inquires to its prosecutor’s office on a monthly basis for missing dispositions. In another example, Alabama makes inquires for missing dispositions through its court administrative office. (See Additional Resource 2.)
- The Attorney General’s Report on Criminal History Background Checks; U.S. Department of Justice, Office of the Attorney General, June 2006. This document describes the Attorney General’s findings and recommendations on criminal history background checks. Accessed at: https://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf.
- The National Criminal History Improvement Program: Improving Criminal History Records for Background Checks, May 2003. This document describes the NCHIP’s findings and objectives in regards to criminal history background check records. Accessed at: https://www.bjs.gov/content/pub/pdf/ichrbc.pdf.
- Disposition Task Force Best Practices Guide, U.S. Department of Justice, Federal Bureau of Investigation. This document describes the findings of the Disposition Task Force, created by the Criminal Justice Information Services (CJIS) Advisory Policy Board (APB) Identification Services Subcommittee to address the issue of missing
dispositions in criminal history records. Accessed at: https://www.fbi.gov/file-repository/disporev04082016tagged.pdf/view.