No Criminal Record Does Not Mean No Criminal Activity

Checks of criminal records identify is only the tip of the iceberg of criminal activity. A clean record indicates only that there are no records of criminal conduct in the places that were checked. The absence of information in criminal record files should not be viewed as positive evidence of reliability or trustworthiness. Most crimes are not reported to the police. Most reported crimes do not lead to arrest, and many arrested persons are not prosecuted and convicted. Even for those who are prosecuted and convicted, the criminal records are often incomplete or missing. As a result, the chances are very small that an individual who has committed a single crime, even a serious crime, will have a criminal record. 

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A Criminal Record Does Not Always Reveal Everything

The more crimes a person has committed, the greater the odds of that person having a record. Most crimes are not reported to the police. Most reported crimes do not lead to arrest, and many arrested persons are not prosecuted or convicted. Even for those who are prosecuted and convicted, the criminal records are often incomplete or missing. As a result, the chances are very small that an individual who has committed a single crime, even a serious crime, will have a criminal record. Much past criminal behavior is likely to be discovered only by self-admission, interviews with references or developed sources, or polygraph examination. This behavior should be evaluated under the adjudication guidelines even though there may be no criminal record.

How Does this Affect MY Security?

Willingness to abide by rules is an essential qualification for access to the nation’s secrets. Adjudication standards that disqualify individuals with a significant criminal history are supported by evidence that past adult criminal behavior predicts a high likelihood of future criminal behavior.

The picture is different with juveniles. The vast majority of juvenile offenders get into trouble only once or twice and stop offending as they mature. However, chronic juvenile offenders (five or more arrests before age 18) are at high risk of becoming adult criminals. Screening out applicants with a significant criminal history protects the organization against more than just espionage. Organizations are vulnerable to a wide variety of crimes including embezzlement, procurement fraud, sabotage of computer systems, and theft of government property. Other crimes such as drug dealing, illegal gambling, assault on co-workers, theft from other employees, and prostitution also affect the work place. 

Most government organizations and private businesses do not know and cannot measure accurately how much they suffer from different types of crime by employees or outsiders. Less serious felony offenders are often sentenced to probation rather than prison, or to a combination of probation with a very short prison or jail term. Of 79,000 convicted felons sentenced only to probation in 1986, 46% had been re-arrested and sent to prison or jail or had absconded (whereabouts unknown) within three years. An additional 19% had had a disciplinary hearing within three years for violating a condition of their probation. Among more serious felony offenders who serve prison terms is substantially greater.

What Criminal Activity Should Your Business Look Out For?

No criminal record does not mean no criminal activity. If there is good reason to believe the person committed a felony, but the crime was plea-bargained down to a misdemeanor, it counts as a felony. Which crimes are considered felonies varies from one state to another and changes over time. The following actions may be considered a serious crime or breach of trust even if they are not categorized as a felony:

  •  Any crime punishable by confinement for one year or more.
  •  Any crime involving the use of force, coercion or intimidation; violence against persons; or the use of firearms or explosives.
  • A violation of parole or probation.
  • Any criminal or civil offense involving breach of trust or fiduciary duty, including embezzlement, bribery, insurance fraud, or falsification of documents or statements for personal gain of more than $500.
  • Obstruction or corruption of government functions or deprivation of civil rights.

Two or more lesser crimes or civil offenses that indicate a pattern of illegal or irresponsible behavior, regardless of whether the person was arrested or convicted for any of these offenses. A violation of parole or probation suggests a possible pattern of criminal behavior. Multiple offenses indicate intentional, continuing behavior that raises serious questions about the person’s trustworthiness, reliability, and judgment. A pattern of disregard for the law is more significant than the monetary value or penalty ascribed to a given crime.  A close and continuing voluntary association with persons known to be involved in criminal activities.

Most Reported Crimes Do Not Lead to Arrest

Most Crimes are not reported. The 1994 National Crime Victimization Survey found that only 36% of crimes against individuals are reported to police. Broken down by type of crime, 42% of violent victimizations and 34% of all property crimes were reported. Even fewer crimes against businesses are reported to police. Shoplifting and theft by retail employees are very common, but even those few offenders who are caught are seldom reported to police. Most businesses handle these and other economic crimes such as fraud and embezzlement internally (through job termination, restitution, demotion), through civil litigation, or by writing them off as a cost of doing business.

Many Arrested Persons Are Not Prosecuted or Convicted

For each 100 persons arrested by the police on felony charges, about 45 are typically released due to insufficient evidence or legal technicalities unrelated to guilt or innocence. About 55 are prosecuted, with one acquitted and 54 convicted. To avoid the cost and uncertainties of a trial, more than half the prosecuted cases are plea-bargained down to conviction for a misdemeanor rather than a felony, which generally involves far less serious consequences for the defendant. Only about 32 of every 100 persons arrested on felony charges actually spend any time in a correctional institution. 

Records of cases that are dismissed without prosecution or that are plea-bargained may be incomplete or misleading. When evaluating criminal conduct, the individual’s behavior is the primary consideration, not whether the individual was prosecuted or convicted. If there is good reason to believe the person committed a felony but plea-bargained down to a misdemeanor, it counts as a felony. 

Criminal Records Are Often Incomplete

The quality of criminal records leaves much to be desired. Although many efforts are under way to automate and centralize criminal records, it will be years before a single check of criminal records at the national level provides reasonably complete coverage. For the following reasons, the FBI records contain only a fraction of the data on criminal offenses available through state and other local agencies:

  • Only felonies and serious misdemeanors are recorded in FBI files. 
  • Juvenile arrest records are not normally forwarded to the FBI, and juvenile crime represents a large part of the criminal history of military enlistees. 
  • Many adult arrest records are not forwarded to the FBI for a variety of reasons that differ from state to state. A principal reason is that many reports received by the states from their local jurisdictions are not complete enough to meet requirements for inclusion in the FBI data base. 

Several Defense Department studies have provided insight into how much criminal history data is missed when a check is limited to the national level. Automated military records were compared with state criminal records for several hundred thousand recruits who entered military service between 1979 and 1988 from the states of Florida, Illinois, and California. About 30% of the recruits had at least one arrest as a juvenile or adult. Self-disclosure during enlistment processing and the Entrance NAC combined identified less than half of those with a history of arrest. More than half were identified only by checking the state criminal records repository. 

Efforts to Improve Criminal History Records Accuracy

The Department of Justice started in 1991 an aggressive program to assist states in upgrading the quality of criminal records at their central repositories. 

In 1991 and again in 1995, the Department of Justice published a comprehensive survey of criminal history information systems in each of the U.S. states and territories. The survey provides data on degree of automation, completeness and timeliness of criminal history information systems. Copies may be ordered free of charge from the Bureau of Justice Statistics Clearinghouse. Twenty-nine states which account for 74% of the nation’s population now participate to some degree in the Interstate Identification Index. The national index will contain personal identification data on individuals whose criminal records are maintained in state record repositories or by the FBI.

At present, access to the Interstate Identification Index is restricted to law enforcement purposes. The effort to improve state criminal history records is driven by recent federal and state laws that focus on keeping repeat offenders off the streets, by the Anti Drug Abuse Act of 1988 which mandates development of “a system for immediate and accurate identification of felons who attempt to purchase” handguns, and by the mobility of the criminal population across county and state lines, The goal is automated linkage of state systems to permit prompt and efficient retrieval of information on criminal offenses, with emphasis on felonies, committed anywhere in the country.

Common Crimes Unlikely to Be Uncovered By a Criminal Records Check

  • Shoplifting
  • Employee Theft
  • Traffic Offenses
  • Conditions
  • Isolated Incident
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