Analysis: Errors In Illinois Criminal History Data Can Undermine Background Checks
A crack in the system
Megan Berkel had a clean record and had been listed as work eligible in the Health Care Worker Registry for six years when she was hired to care for Brenda Harrison.
Her conviction for stealing from Harrison in November 2017 should have changed that, barring her from health care work thereafter.
However, Berkel’s IDPH profile was not changed to “work ineligible” until Oct. 3, 2019, and her conviction for stealing from Harrison was not added to her ISP criminal history until Oct. 28, 2019, after The Southern’s questioning prompted a review, Arnold said.
The disappearance of that 2017 conviction, which caused the false “clean” return on Berkel’s ISP background check at River to River, traces to a paperwork error during her original arrest, The Southern found.
When a person is arrested in Illinois on any felony or Class A or B misdemeanor charge, the arresting agency must submit their fingerprints, charge information and demographic details to the Illinois State Police on a “Fingerprint Arrest Card” within 24 hours, according to the Illinois Criminal Justice Information Authority.
The card includes a unique document control number (DCN), generated at the time of fingerprinting, which identifies the case in the ISP’s criminal history database.
State’s attorneys enter the DCN when they inform the ISP whether or not they intend to file charges on an arrest. Circuit clerks enter the DCN when they notify the ISP whether a defendant has been found innocent or guilty.
With a DCN, these updates automatically register in the ISP’s system. Without it, they cannot be filed.
Berkel’s arrest fingerprints were taken at the Williamson County Jail, but an error on her arrest card left the ISP without any indication of what charge she’d been arrested for, acknowledged Dept. Brian Murrah, public information officer for the Williamson County Sheriff’s Office.
The ISP matched the card to a separate case filed against Berkel in Williamson County, a spokesperson indicated, leaving the Jackson County charges with no arrest fingerprints, and thus no DCN. The agency, which tracks hundreds of thousands of arrests each year, did not contact Williamson County to clarify the unspecified prints.
As Berkel’s case progressed in Jackson County, law enforcement were never able to provide a DCN to Jackson County State’s Attorney Mike Carr and Jackson County Circuit Clerk Cindy Svanda.
The result: A guilty verdict that would have barred Berkel from health care work could never be entered into the ISP’s database. As far as the Illinois Department of Public Health and the nursing home knew, her record was clean.
The small error on Berkel’s arrest paperwork is just one of many ways convictions are lost in Illinois, The Southern found.
Interviews with local and state officials revealed DCNs may fail to be generated by local law enforcement, fail to be shared between agencies, or be improperly attached to the cases they’re supposed to track.
Since the 1960s, the ISP’s Criminal History Record Information system has registered about 1.6 million arrests whose outcomes (charges filed/dropped, verdict of innocent/guilty) are unknown, said Christine Devitt Westley, who audited the state’s criminal justice records during her 24-year tenure at the Illinois Criminal Justice Information Authority.
“Between the 900-plus police agencies, plus the state’s attorneys and the circuit clerks, there are so many places where the decision can be made not to send in information, or the process can fail,” Devitt Westley said.
Case records are at risk of being lost to the ISP from the moment a subject is booked if fingerprint procedures are not followed, The Southern found.
And in some cases, those procedures are unclear.
Police officers who make a warrant arrest, for instance, may not be immediately told the nature of the warrant and whether it requires fingerprinting, particularly if the warrant originated in another county, explained Lt. Melvin Kersten, of the Jackson County Sheriff’s Office.
“We might not get a copy (of the warrant) before we finish booking, or even the same day,” Kersten said. “Some counties aren’t even staffed 24/7 to be able to fax it over, if it’s after business hours.”
That puts police in an uncertain position. If the warrant is for a felony or qualifying misdemeanor, failing to fingerprint could create an untracked case like Berkel’s.
But fingerprinting warrants that don’t require it, like for defendants who fail to make a restitution payment or forget to attend traffic court, adds false cases to the ISP’s system and incorrectly exaggerates people’s criminal histories, Devitt Westley said.
“All these open cases show up on their RAP sheets, making them look like more serious offenders,” Devitt Westley said. “Then, when they get a background check someone at the ISP has to call the courthouse and investigate each open case. It saps resources and creates bureaucracy.”
Convictions may also be lost when law enforcement fails to share copies of fingerprint cards with state’s attorneys and circuit clerks after an arrest.
In Jackson County, Svanda occasionally receives charging decisions from the state’s attorney’s office without a corresponding fingerprint card and DCN from the arresting agency, she said.
The same is true in Williamson County, agreed her counterpart there, Andrew Wilson.
“We don’t always get all of them,” Svanda said, “and I don’t know what determines which ones we get personally, which ones (the state’s attorney’s office) gets, what (police departments) send and what they don’t.”
Missing fingerprint cards appear especially common when an original arrest is made outside the county that issued the warrant.
While officials at both Jackson and Williamson county jails stressed they always provide fingerprint cards to the ISP, both jails also acknowledged they have no established policy to provide fingerprint cards to officials in other counties when required.
Across their tenures, neither Svanda nor Wilson have ever received an arrest card from an out-of-county agency, they said.
“All I can do is file the paperwork I’m given,” Svanda said. “And if I don’t get a DCN, the state won’t take my conviction.”
In still other cases, people accused of a crime and brought to court on a summons may never receive a DCN at all because they are never arrested and fingerprinted, Devitt Westley said. With no DCN, any subsequent conviction may be undetectable to the ISP.
And in some high-population counties like Cook, state’s attorneys are completely failing to fulfill their ISP reporting responsibilities, Devitt Westley said.
Ten Illinois counties, including Cook, St. Clair and Madison, have “direct file” agreements, whereby the state allows police agencies, instead of state’s attorneys, to submit charging decisions to the ISP, Devitt Westley said.
However, the submissions are frequently inaccurate because they fail to reflect the many times that state’s attorneys add, drop, reduce or alter charges.
And they very often generate incomplete ISP records because circuit clerks never receive fingerprint cards and DCNs to file conviction updates on the cases.
“Direct file is an artifice to give the appearance of a better record completeness rate,” Devitt Westley said. “In reality, we have no idea how many of these cases resulted in convictions because we don’t know how often the state’s attorney chose to bring a case at all.”
The longstanding agreements are so deeply ingrained that state’s attorneys in direct file counties are likely unaware that their jurisdictions provide empty records, Devitt Westley said.
“At this point, in Cook County, their computers aren’t even set up to communicate with the criminal history records system at the state level anymore,” Devitt Westley said. “They’ve been taken off the hook.”
Since before the digital age, incomplete records have plagued Illinois and other states.
In 2006, an ICJIA audit of the state’s Criminal History Record Information database found about 25% of records submitted each year from 1999 to 2001 were incomplete, and estimated about 10% to 20% of law enforcement records were missing completely.
In 2013, just 13% of juvenile felony arrests had a known outcome (charges filed/not filed, verdict innocent/guilty) in the ISP’s database, the ICJIA found in a subsequent analysis.
Those studies are the most recent available data on record completeness in Illinois, Devitt Westley said, amid scarce state and federal funding for criminal records auditing.
However, the 1.6 million unresolved arrests still on file leave Devitt Westley certain that holes remain in the ISP’s conviction records.
Yet ISP background checks continue to be used by numerous state agencies, recommended by the Illinois State Board of Education for school personnel, and depended on by licensing entities like the IDPH.
“The message needs to get out to people who depend on state background checks that the system is not 100% reliable,” Devitt Westley said. “When we’re using the system for vulnerable populations, we should be making sure it works.”
Circuit clerks have pressed the ISP on the issue of incomplete records caused by missing DCNs for years, Svanda said.
“They’ve essentially said: ‘We’re trying to match these (records) up but we only have so much staff and so many resources,” Svanda said of the ISP. “And that’s true of all of us. We’re underfunded and the reporting mandates are constantly increasing.”
Already, the state police keep convictions reported without a DCN in an electronic file, to be checked against future arrests reported to the agency, in case there’s a delayed match.
But that fail safe is clearly imperfect, Carr said.
“The fact of the matter is they have someone’s name in a variety of formats, and they didn’t call us on the Berkel case,” Carr said. “If the ISP is actually looking at these reports, they should have caught this.”
Svanda would like to see the ISP improve its ability to match convictions to arrests according to personal identifiers beyond DCNs.
“In our system, we enter cases with the defendant’s name, birthday, charge number and date of arrest,” she said. “It would be nice if they could do the same.”
Local officials also suggested that a shared software hub for the police departments, state’s attorneys and county clerks that do DCN reporting could improve oversight.
Currently, state’s attorneys and county clerks work without access to one another's software in most of the state, Devitt Westley said, leaving state’s attorneys unaware when their cases lack DCNs.
Meanwhile, DCN reporting is far from standardized across counties.
In Jackson County, the circuit clerk’s office holds a file of pending fingerprint cards, which employees comb through constantly to match the arrest DCNs with charging decisions sent from the state’s attorney’s office.
The system is smooth but labor intensive, agreed Svanda and her chief deputy, Melissa Britt, as DCNs must at times be kept and checked for months, until prosecutors decide to file charges.
In Williamson County, all fingerprint cards go directly to the state’s attorney’s office, to be passed on only once a charging decision is made, Wilson said. However, DCNs do not always arrive with the decisions.
One obstacle to improving DCN reporting is that for all its utility to the state, the numbers are essentially irrelevant to local law enforcement record keeping, which uses case numbers and demographic information to track arrestees, Devitt Westley said.
“Because DCNs are just for external reporting and have no bearing on the case, it’s not at the forefront of people’s minds,” she said.
Indeed, multiple law enforcement officials interviewed by The Southern were unclear on the function of the DCN.
And the ISP has made little effort to improve local agencies’ awareness.
“It’s simply beyond their capacity to visit 900 police agencies and hundreds more county officials to make sure they’re doing this right,” Devitt Westley said.
Instead, improving the system should be a joint effort between the ISP and stakeholders who depend on state background checks, like nursing homes, Devitt Westley said.
“Today so many more entities require background checks than ever before, from people applying to be a nurse, to applying for a visa,” Devitt Westley said. “We should look at who actually needs this service and ask them to help improve it.”
For now, Devitt Westley recommends that employers who depend on state background checks, like River to River, seek a second layer of vetting for their hires.
In Berkel’s case, a simple check of a public court records website like Judici would have sufficed. Her convictions were plainly visible there, catalogued according to their case number.
Devitt Westley would also like to see the state fund a new audit of its criminal history database.
“Of course it’s a problem that it’s been 14 years since we checked to see how the CHRI system is working,” she said. “(The ICJIA) is supposed to be a watchdog and yet the answer has always been, ‘I’m sorry we don’t have any resources.’”