Clean Criminal Record Does Not Mean Absence Of Criminal Activity
Checks of criminal records identify 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 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. The more crimes a person has committed, the greater the odds of that person having a record. for a discussion of the percentage of the population that has 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.
Relevance to Security
Willingness to abide by rules is an essential qualification for eligibility for access to the nation’s secrets. A history of illegal behavior indicates an individual may be inclined to break rules. 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. See statistics on adult recidivism. 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. See statistics on juvenile recidivism. Within the U.S. military, a recruit with even a single pre-service arrest is far more likely to be discharged for unsuitability prior to completion of enlistment than a recruit with no prior arrest record. Specifically, a recruit who enters military service with a prior arrest is 65% more likely than other recruits to be discharged for unsuitability. This holds true whether the arrest is as a juvenile or an adult, whether or not the arrest is followed by a conviction, and regardless of the recruit’s educational level. Factors associated with significantly higher discharge rates are number of arrests and seriousness of the criminal charge.
Ref 1 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. National security organizations have a vested interest in maintaining high standards. A study of dishonesty in the workplace makes this observation: “Many industrial security experts have warned that if an employee is exposed to laissez faire attitudes toward honesty, there is a good likelihood that this attitude will carry over into subsequent work experiences….we have learned that the work environment which tacitly ignores or tolerates petty incidents of dishonesty is also the same climate which may cultivate further unethical activity in a variety of other settings.”
Ref 2 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. “The professional business literature contains many accounts indicating that when companies do gather the necessary data, they are often surprised at the magnitude of losses they have been sustaining.”
Statistics on Adult Recidivism
Ref 3 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.
Ref 4 Recidivism among more serious felony offenders who serve prison terms is substantially greater.
Ref 5 Another study analyzed male California residents born in 1956. It traced their arrest records as adults from age 18 to age 29. It found that of those arrested as adults (after age 18) for an offense that carried a potential sentence of incarceration, about half were arrested only once.
Ref 6 The U.S. Department of Justice’s Bureau of Justice Statistics has developed a large data base of first-time arrestees in order to study recidivism among this group. Unpublished results indicate findings similar to the California study, with 51% of first-time arrestees being re-arrested within an 11 year follow-up period. The percentages by race were 44% for whites and 56% for blacks. When this study is completed, it may provide data on how the probability of re-arrest diminishes with the passage of time after the first arrest.
Statistics on Juvenile Recidivism
Ref 7 In Maricopa County (Phoenix), Arizona, about half of the males and about 8% of females have some involvement with the juvenile court system before they turn 18. In about one quarter of those cases, the juvenile is actually adjudicated and placed on probation or receives some other formal court disposition. Average age of first referral to juvenile court is slightly less than 14 years. Only 4% of all the juvenile offenders, and 16% of those who were adjudicated as juveniles, go on to develop adult felony records.
Ref 8 A study of 10,000 boys born in 1945 and who lived in Philadelphia at least from age 10 to 18 found that 35% of the boys were arrested at least once before reaching age 18, and 6% were classified as chronic offenders (five or more arrests before age 18). These chronic offenders were responsible for over half of the offenses. Using a sample of 975 of these boys who were tracked until age 30, the study found that 45% of the chronic juvenile offenders became chronic offenders as adults, while 22% of the chronic juvenile offenders had no offenses at all as adults. Of those who had no juvenile offenses, 82% remained nonoffenders as adults.
Ref 9 The same study covered 14,000 females born in 1958, who were raised in Philadelphia and tracked until age 27. It found that 14% were arrested as juveniles, and only about 14% of those were arrested again as adults. A study by the Defense Manpower Data Center of 66,000 persons from Florida who entered the armed services from fiscal year 1984 through 1987 found that over 11% had criminal offense records in the Florida juvenile offender database. A large majority concealed these offenses when filling out personal history statements at the time of enlistment. Review of military records determined that about 30% of those with a juvenile record were separated from the service for unsuitability within four years, as compared with 20% for those who had no juvenile record. This difference in unsuitability discharge rates for offenders and non-offenders was more or less constant regardless of race, sex, marital status, educational level, aptitude test level, and age at enlistment. In other words, all categories of military personnel with a juvenile record represent a 50% greater risk of unsuitability discharge than those without a juvenile record. It should be noted, however, that 70% of those with juvenile offense records did not leave the service for reasons of unsuitability. By this criterion, 70% succeeded.
Potentially Disqualifying Conditions
Ref 10 Conditions that call into question a persons reliability, trustworthiness or judgment include:
A single serious crime, regardless of whether the person was arrested or convicted for that crime. A “serious” crime is often defined as a felony, as distinct from a misdemeanor or ordinance violation. Conviction, admission, or strong evidence of a felony will usually support a recommendation for disapproval unless there are unusual mitigating circumstances. 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:
(1) Any crime punishable by confinement for one year or more.
(2) Any crime involving the use of force, coercion or intimidation; violence against persons; or the use of firearms or explosives;
(3) A violation of parole or probation.
(4) 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.
(5) 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. See Pattern of Dishonest, Unreliable, or Rule-Breaking Behavior under the Personal Conduct guideline.
A close and continuing voluntary association with persons known to be involved in criminal activities. Association with family members is generally considered non-voluntary in this context.
The security significance of criminal behavior does not depend on whether the person was caught or upon the final outcome of legal action. It depends only on the individual’s intentions and actions, and what these show about reliability, trustworthiness, and judgment.
Relationship of Criminal Conduct
To other adjudication Guidelines A criminal record that falls below the threshold for adverse action under the Criminal Conduct guideline may nevertheless be relevant under the Personal Conduct guideline, Pattern of Dishonest, Unreliable, or Rule-Breaking Behavior. A couple misdemeanor offenses, for example, when combined with derogatory information in other issue areas, may add up to a pattern of unreliability, un-trustworthiness, or poor judgment that is a basis for adverse action under Personal Conduct. In the absence of any other criminal behavior, misdemeanor offenses related to driving under the influence would not be grounds for disqualification under Criminal Conduct. They may be a more serious concern when evaluated under the Alcohol Abuse guideline if they are part of a pattern of alcohol abuse, or under the Personal Conduct guideline if they are part of a pattern of unreliability, un-trustworthiness, or poor judgment. Sex crimes involving the use of violence are a particularly serious concern under the Criminal Conduct guideline. Sex crimes that do not involve violence, coercion or intimidation should be evaluated from a criminal perspective as well as from sexual and emotional/mental perspectives.
Multiple property crimes such as burglary, robbery, and theft could indicate drug abuse. Many property crimes are motivated by a need to obtain money for drug purchases. 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.
Ref 11 Even fewer crimes against businesses are reported to police. For example, 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 Most Reported Crimes Do Not Lead to Arrest The FBI’s annual report on crime in the United States reports that only 22% of Crime Index offenses (the most serious offenses) reported during 1990 were “cleared,” which in most cases means the offender was arrested and turned over to the court for prosecution. The clearance rate was 46% for violent crimes and 18% for property crimes.
Ref 12 If only 38% of crimes are reported and only 22% of those reported lead to arrests, this suggests that the chances of a crime leading to arrest are only about 8%. Owing to significant differences in procedures between the FBI reporting and the National Crime Victimization Survey, this 8% figure is only a very rough approximation. 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.
Ref 13 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.
Significance of Juvenile Criminal Record The vast majority of youths processed by the juvenile court system get into trouble only once. A significant number get into trouble twice, but it drops off sharply after that. Most juvenile delinquents do stop committing crimes as they mature. See statistics on juvenile recidivism As a general rule, youthful indiscretions should not be held against an individual. However, chronic juvenile offenders and those who start offending at the earliest ages are likely to continue committing crimes as adults, and such a record should be considered by the adjudicator. Also, if an individual has one or more offenses as an adult, a juvenile record becomes relevant to a judgment about a pattern of unreliability and un-trustworthiness. Juvenile records are becoming increasingly available to investigators. Until recently, confidentiality of juvenile record systems was ensured de facto because the systems were so primitive that the information could not be retrieved anyway. Currently, attention is focused on reducing crime by identifying career criminals and keeping them off the streets with longer sentences. This increases the pressure for judges, parole boards and others to have prompt access to accurate juvenile records. Efforts are under way in many states to improve the quality and retrievability of these records, and past practices of restricted access to juvenile records are being reviewed.
Ref 14 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. The National Agency Check (NAC), which includes a check of FBI Headquarters records, is normally the first step in the investigative process. 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.
Ref 15 The records that were missed during the FBI check were not just juvenile arrests or minor misdemeanor arrests. For the state or Illinois, for example, 35% of arrests of adults for robbery or burglary that were recorded in the Illinois files were not recorded in the FBI files.
Ref 16 There is also considerable slippage at the local and state level; that is, most centralized state files are also quite incomplete. The most common failing is lack of reporting on the disposition of those who have been arrested. Only about half of all arrests lead to conviction. Many who are arrested, fingerprinted, and reported to the state’s central criminal records repository are subsequently not charged with a crime, are charged but not prosecuted, or are prosecuted unsuccessfully, and these subsequent actions are often not reported to the state repository. Across the nation, including the FBI’s Identification Division and state repositories, the disposition of cases during the past five years is reported for only about 65% of reported arrests. The figures are lower when arrests older than five years are considered.
Ref 17 Another weakness is that expunging, setting aside, or pardoning felony convictions may not be recorded in the state repository, or it may result in the record of the felony conviction being removed from the file.
Ref 18 Efforts to Improve Criminal History Records The Department of Justice started in 1991 an aggressive program to assist states in upgrading the quality of criminal records at their central repositories.
Ref 19 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. To order Bureau of Justice Statistics reports, call toll-free 800-732-3277 Twenty-nine states which account for 74% of the nation’s population now participate to some degree in the Interstate Identification Index (III), a national index being developed to link together the state repositories. 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. It is often said that the way people drive is a reflection of their personalities. Various types of high-risk behavior often appear together as part of a general personality syndrome. Persons arrested for high risk driving (speeding, unsafe lane changes, tailgating, driving under the influence, etc.) are more likely than others to abuse alcohol, use drugs, and engage in high risk sexual behavior, fighting, stealing, and vandalism. Males involved in auto crashes are more likely than others to have problems controlling hostility and anger, have difficulty with authority figures, and be more impulsive and immature.
Ref 23 A record of two or more moving violations during the past three years, or three or more during the past five years, suggests the possible existence of relevant derogatory information in other issue areas. If other derogatory information is available, all of the derogatory information should be evaluated together under Personal Conduct, Pattern of Dishonest, Unreliable, Rule-Breaking Behavior. Many traffic citations for things such as reckless driving originate as arrests for driving under the influence. They are plea-bargained down to a lesser offense to avoid the cost of trial. When identified for what they are, such an offense should be evaluated as a DUI under Alcohol Consumption or Drug Involvement, as appropriate.
Crime Was Not Recent
Passage of time since committing a criminal offense may be a mitigating factor that allows approval. The question is, how much time needs to elapse before it is reasonable to conclude that a person has demonstrated sufficient reliability, trustworthiness, and good judgment to outweigh a prior criminal offense? This varies depending, in part, on the seriousness and circumstances of the offense, including age at the time of the offense, and evidence of positive change in attitudes or lifestyle since the offense was committed. Example 1. The answer to this question is also influenced by statistics on recidivism — the repetition of criminal behavior. Briefly, roughly 50% of first-time offenders in California age 18 or over are arrested for a second offense prior to age 29. The chances of an offender being returned to jail or prison drops off with the passage of time. It drops off considerably after three years, and the chances of a return to prison are small after 10 years have elapsed. See statistics on adult recidivism. State statutes and court decisions relating to fairness and privacy issues in the use of criminal records may also be relevant. At least seven states have passed statutes that recognize the small risk of recidivism by offenders with old criminal history records and no recent offenses. These statutes permit “old” records to be sealed or purged, either automatically through administrative action or selectively through court petition. These statutes generally apply to records that are either 5 years old or 10 years old with no subsequent offenses. Ref 24 On the other hand, courts in about 15 states have addressed the question of whether the passage of time alone can deprive the public of its right to access to criminal records; in most cases, they have determined that it cannot.
Ref 25 Example 1 Subject committed a single crime six years ago and completed parole six months ago. Interview of the parole officer revealed that the subject repeatedly violated the parole up until three months before the parole was to be completed. Subject was warned that another violation would cause the parole to be revoked and subject returned to prison. Although subject’s crime was committed six years ago and subject “successfully” completed parole, subject was not rehabilitated. He was failing to comply with terms of the parole less than one year ago. Repeated parole violations suggest that subject’s attitudes and life style have not changed since the original offense was committed.
Crime Was an Isolated Incident
Many people commit an occasional dishonest act while continuing to see themselves as law-abiding, honest citizens. They make an impulsive decision, have an uncharacteristic lapse of judgment, or use a convenient rationalization — that everyone is doing it, they are only taking what they deserve, or it is not harming anyone. If the offense is an isolated incident in an otherwise exemplary personal history, this may be considered as a mitigation. For discussion of favorable information that might mitigate an isolated offense, see the Whole Person Concept. Also see Example 2. One or two misdemeanor offenses younger than age 25 may be discounted on grounds that most youths do mature and grow up to be responsible citizens. Misdemeanor arrests at age 25 or older are much less common. They are more predictive of future behavior problems than misdemeanor arrests at ages younger than 25. Ref 26 More than two misdemeanor arrests under age 25, or any significant criminal activity at age 25 or older, should be assessed under Personal Conduct, Pattern of Dishonest, Unreliable, or Rule-Breaking Behavior. When combined with current derogatory information in other issue areas, this may be a basis for adverse action. Criminologists believe that an overwhelming majority of people have committed at least one crime without detection, and a substantial proportion have broken the law more than once.
Ref 27 An often-cited 1947 study, entitled Our Law-Abiding Lawbreakers, found that 99% of respondents admitted committing at least one offense from a list of 49 such offenses that carried sentences of not less than one year. None of the respondents had been arrested or classified as a criminal.
Ref 28 Offenses may take various forms. Many such as malicious mischief, disorderly conduct, bribery, perjury, indecency, or assault may result from an uncharacteristic lapse in judgment or discretion, often during one’s youth. Pilfering such as taking ashtrays or towels from a hotel room is common. Security experts estimate that one of every three hotel guests takes some piece of hotel property upon departure.
Ref 29 It may be a financial offense such as padding an insurance claim or failing to report income on an income tax return. After the Internal Revenue Service first required banks and corporations to report all interest and dividend payments to individuals so that these payments could be matched against what the recipients report, the amount of interest and dividends reported on individual tax returns increased by 45%. Ref 30 When the IRS first began in 1988 to require that names and Social Security numbers of all dependents be entered on tax returns, seven million bogus dependents vanished from the tax rolls.
Ref 31 In some cases, the individual may be unaware the action is illegal — for example, failure to pay required Social Security and unemployment compensation insurance for a maid or regular baby-sitter. Example 2 Subject was arrested while in college, four years ago, for stealing a professor’s payroll check and then attempting to cash this check using a false identification card in the professor’s name. When questioned by police, he tried to convince them he was the person to whom the check was made out. For this one offense, he was charged with forgery, possession of a forged instrument, possession of stolen property, criminal impersonation, and attempted grand larceny. Several of these are felonies. On the advice of other inmates, subject told his attorney that he has a drug problem and should be placed in an alternative sentencing program for first-time drug offenders. He was in this program for only two months due to negative drug test results. There is no evidence that drug dependency influenced subject’s behavior. He explained that his motivation for committing the crime was desire for money during the Christmas holidays. When considering mitigating factors, the adjudicator assesses the behavior in a whole person context. On the favorable side of the ledger, this was a single offense four years ago when subject was 22 years old, with no evidence of subsequent criminal conduct. On the negative side, subject lied to the police when questioned and lied about having a drug problem in an effort to receive a lighter sentence. This indicates a pattern of dishonest behavior and lack of remorse for his offense. Further, a collection agency is pursuing subject for $800 in delinquent payments to a retail store, and subject has other long-overdue bills as well. Although subject’s overdue debts alone are not sufficient for disqualification under Financial Considerations, they do indicate indifference to financial obligations. They suggest a possible current pattern of continuing unreliable or antisocial behavior. Under these circumstances, subject does not qualify for mitigation under the isolated incident criterion. Crime Was Result of Coercion It may be inappropriate to hold an individual responsible for behavior under duress, for example actions taken on the basis of threats to one’s family. This mitigation does not apply if the person’s own behavior was responsible for provoking the threats, for example threats made in an effort to collect gambling debts.
Unique Circumstances Not Likely to Recur
Transitory conditions such as severe provocation or desperate financial need to pay a medical bill may lead an otherwise honest person to suffer a lapse in judgment and commit a crime. If the offense is explained by extenuating circumstances that are unlikely to occur, and if the whole-person evaluation is favorable, this may be a mitigating condition. Example 3 Subject is a 31-year-old data entry clerk. She was arrested three years ago for welfare fraud — failing to report income and thereby receiving $1,300 in over-payment of welfare assistance during a four-month period. She was allowed to participate in a diversion program in lieu of prosecution. Two years ago, she was arrested again for the same type of offense. This time she was charged with 1st degree theft, which is a felony. Again, instead of being prosecuted, she was placed in a diversion program on condition that she repay the $1,809 in over-payments. At about the same time, she was charged with two other offenses. She issued a non-sufficient funds check to a grocery store; the check was subsequently paid prior to court action. And she was arrested, found guilty, fined, and given a 30 day suspended sentence for shoplifting. Subject explained that she plead guilty to shoplifting because she was present at the scene of the crime, although she did not participate in it. Subject has exhibited a pattern of criminal conduct, including a felony offense, which is disqualifying. She also has problems on financial issues. However, there are a number of extenuating circumstances. At the time of the crimes, subject was raising two small children while working two part-time jobs and attending school. There is no evidence that the money obtained illegally was spent for anything other than supporting her children. By attending school, subject was making a clear effort to improve her long-term prospects in life. She made a favorable impression during personal interview and received a good work performance evaluation from her supervisor. She has taken commendable steps to make restitution for previous offenses and to develop stable finances. She has made full restitution for one of the welfare fraud offenses and is maintaining a schedule of payments for the other. Most other debts have either been paid or are being paid. In summary, there is mitigating evidence to outweigh the disqualifying evidence.
Successful rehabilitation may be demonstrated by the passage of time leading a productive life with no further violations. This is, in essence, the same as the recency guideline. Alternatively, rehabilitation may be demonstrated more rapidly by a significant improvement in life style and in attitudes toward social responsibility. Successful completion of a job training or higher education program in prison (other than studying law to learn how to beat the legal system) might be one indication of rehabilitation. Religious conversion might be another.
Glossary of Legal Terms
This glossary is based on FBI Uniform Crime Reports, information provided by Department of Defense Security Institute, and legal dictionaries. These definitions are quite general. Some terms may have specific definitions under various state or federal laws. For additional information, consult a legal dictionary available in many adjudication facilities and most public libraries. Acquittal means the case went to trial and the defendant was found not guilty because all elements of the crime were not proven beyond a reasonable doubt. Acquittal applies to criminal cases only. Arraignment is where an accused person is brought before a court to enter a plea in response to a criminal charge presented by a prosecutor. Arrest is the taking of a person into physical custody to answer a criminal charge or civil demand. Article 15 of the Uniform Code of Military Justice defines procedures for nonjudicial punishment for minor offenses. See nonjudicial punishment. Assault (aggravated) is an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury. This type of assault usually is accompanied by the use of a weapon or by other means likely to produce death or great bodily harm. Assault (simple) is an assault or attempted assault where no weapon is used and which does not result in serious or aggravated injury to the victim. Bad conduct discharge is a punitive discharge from military service that is less serious than a dishonorable discharge. It may be imposed for bad conduct by either a general or special court-martial. Breaking and entering is the unlawful entry of a structure, similar to burglary, except that there is no intent to commit a felony. Burglary is the unlawful entry of a structure to commit a felony. Captain’s Mast is a U.S. Navy term for nonjudicial punishment. Civil case is a legal action based on a complaint lodged by one individual against another. The action is brought by a plaintiff seeking compensation for injury, damages or performance of a contract. Conspiracy is an agreement to engage in criminal activity by two or more persons. Conviction is the result of a criminal trial in which the court finds the accused person guilty of a criminal offense. The conviction may come about by trial, guilty plea, plea of “no contest” or a plea bargain. Court-martial is a military court that decides guilt or innocence and determines the punishment for offenders. There are three levels of court-martial: summary court-martial for the least serious offenses, special court-martial for moderate to serious offenses, and general court-martial for the most serious offenses. See separate descriptions for each type of court-martial. Court of inquiry is a formal fact-finding body convened under the Uniform Code of Military Justice. Crime is an act or omission that is punishable on conviction in judicial proceedings in the name of the government. The case is brought by a government prosecutor defending the interests of society as a whole. A crime differs from a civil offense in which a complaint is lodged by one individual against another. Decline Prosecution is a decision of a prosecutor to not prosecute. Prosecution may be declined for many reasons, including insufficient evidence, the crime is not serious, and the prosecutor’s caseload. Discharge means to release or extinguish an obligation. Discharge of bankruptcy means the debtor has been relieved of the debts identified by the bankruptcy proceedings. Do not confuse with dismissal of a bankruptcy proceeding, which is just the opposite. Discharge from military service means termination of service. For types of military service discharge, see Dishonorable Discharge, Discharge under Other than Honorable Conditions, General Discharge, and Honorable Discharge. Dishonorable discharge is the most serious form of punitive discharge from military service. It is reserved for those convicted of offenses usually recognized by civil law as felonies or offenses of a military nature requiring severe punishment. Discharge under other than honorable conditions is a form of discharge given to a member of the military services when the reason for discharge from military service is either a pattern of behavior, or one or more acts or omissions, that constitute a significant departure from the conduct expected of members of the military services. It is a less severe form of punishment than a dishonorable discharge. This type of discharge is awarded only if the individual has been afforded the opportunity to request an administrative board or a discharge in lieu of trial by court-martial. Dismissal is the final disposition of an action, suit, or motion by sending it out of court without a trial. Dismissal of a bankruptcy proceeding is the opposite of discharging a bankruptcy. The bankruptcy petition has been rejected. Due process is a course of legal proceedings which provides for the protection or enforcement of individual or private rights under the law. Embezzlement is taking or misapplying money or property entrusted to one’s care, custody, or control. Felony is the most serious category of crime. It is usually defined as a criminal act for which the maximum sentence is imprisonment for one year or more or by death. A federal felony is a violation of federal law such as espionage, counterfeiting, kidnapping, bank robbery, postal fraud, or interstate transportation of stolen goods. A state felony is a violation of state law such as murder, burglary, aggravated assault and battery, grand larceny, auto theft, or rape. Conviction for a federal or state felony causes an individual to lose certain civil rights, i.e., a convicted felon cannot vote, hold public elective office, practice certain professions and occupations, or purchase a gun. Fraud is obtaining or converting to one’s own use money or property by misrepresentation or false statements. Confidence games and bad checks are included; counterfeiting is excluded. General court-martial is the military court that considers the most serious cases such as murder, rape, and robbery. It is composed of a military judge, five or more members who serve as a jury, and prosecuting and defense counsels. This court may impose the death penalty if legally allowed for the offense in question. General discharge is a form of discharge given to a member of the military services whose service has been honest and faithful, but for whom significant negative aspects of the member’s service, conduct or performance of duty outweigh the positive aspects of the member’s military record. It is an administrative discharge that may be given, for example, to an individual who is unable to adapt or is otherwise unsuitable for military service. Homicide is the killing of a human being. It includes criminal charges of murder, non-negligent manslaughter (willful killing of one human being by another), and manslaughter through gross negligence. Honorable discharge is a form of discharge given to a member of the military services whose service generally has met the standards of acceptable conduct and performance of duty, or is otherwise so meritorious that any other type of discharge would be inappropriate. Indictment is an accusation of a crime to be proven at a trial. Indictments are considered by grand juries. If an indictment is made by a grand jury, the grand jury returns a “True Bill.” If a grand jury does not believe the person committed a crime, it returns a “No Bill” finding. Larceny is the unlawful taking, carrying, leading, or riding away with property from the possession of another person. Examples are thefts of property such as bicycles or automobile accessories; shoplifting; pocket-picking, or the stealing of any property or article which is not taken by force and violence or by fraud. Motor vehicle theft is usually considered a separate category of offense. Misdemeanor is a category of crime less serious than a felony. It is usually defined as an offense for which the maximum sentence is a fine or imprisonment for up to one year. Time is usually served in a city or county jail rather than in a state prison. Examples of misdemeanors are retail theft, petty larceny, trespassing, possession of small amounts of marijuana, disorderly conduct, and resisting arrest. The distinction between a felony and misdemeanor varies from state to state. For example, some states (primarily Michigan and New Jersey) have a category of high misdemeanor or gross misdemeanor crimes that would be less-serious felonies in other states. The federal system has a lesser category of petty offenses for which the maximum penalty is a fine of $500. Nolo Contendere means “I will not contest it.” It is a plea to a criminal charge that has a similar effect to pleading guilty. If the court accepts the plea, the person will be convicted and sentenced. The “nolo” procedure is used when the accused does not want to admit the crime. It is often called a “no contest” plea.
Nolle Prosequi is the same as a decision not to prosecute. Nonjudicial punishment is imposed under Article 15 of the Uniform Code of Military Justice for minor offenses (for example, unauthorized absence) without the intervention of a court-martial. Rules of evidence do not apply. Offenders have an incentive to accept punishment under Article 15 rather than court martial, as Article 15 punishment is recorded as administrative rather than criminal in nature. Ordinance violations are prosecuted in local or municipal court, not state court. Ordinance violations are minor offenses such as violation of local health codes, noise restrictions, etc. Penalties vary by jurisdiction. Parole is release from prison after serving a portion of the sentence or upon meeting certain specified conditions. Violation of parole could result in the person being returned to prison for the remainder of the sentence. Plea Bargain is the process whereby the accused and the prosecutor in a criminal case agree on a disposition of the case without trial, subject to the court’s approval. It often involves the accused person pleading guilty to the crime or to a lesser offense in return for a lighter sentence. There are many different reasons for a plea bargain. A plea bargain avoids the need for a trial, thereby significantly reducing the work load for the court system. In some jurisdictions, up to 75% of the cases may be plea bargained. A problem for adjudicators is that the plea bargain agreement, which is part of the court record, may not always contain the reasons for the plea agreement, just that an agreement has been made. A guilty plea through a plea bargain generally has the same legal effect as a guilty verdict in a trial. Probation is a sentence, after a criminal conviction, that releases the person into the community under the supervision of a probation officer instead of sending the person into confinement or imposing a fine. The person is required to comply with certain terms of the probation, such as community service and good behavior. Violation of probation could result in the person being sent to prison. Punitive discharge is a discharge from military service imposed as a punishment, either a bad conduct discharge or a dishonorable discharge. Recidivism is relapse into crime by a previous offender. Record expunged means the criminal record has been removed from those records available for public release. Many states have laws that provide for sealing, purging, or expunging certain criminal records — generally those of juveniles, first offenders, or offenses more than 5 or 10 years old. In order to have a record expunged, the offender may be required to petition the court to remove the record. Restriction is a form of punishment for military personnel. It is less severe than arrest. The individual may not leave a military installation or facility unless required to do so pursuant to military duties and activities. Robbery is taking or attempting to take anything of value from the care, custody, or control of a person or persons by force or threat of force or violence and/or by putting the victim in fear. Special court-martial is the military court that handles moderate to severe offenses. There is a military judge and three or more persons serving as a jury. The accused has the right to an attorney. The maximum punishments that can be imposed are a bad conduct discharge, confinement for six months, forfeiture of two-thirds of pay for six months, and reduction in grade to E-1. Summary court-martial is the lowest of the three levels of military courts. A single presiding officer serves as prosecution and defense, judge and jury. This officer takes evidence and passes judgment. The court can impose one month’s confinement at hard labor, 45 days hard labor without confinement, restriction for 60 days, forfeiture of pay, or reduction in grade. Uniform Code of Military Justice is the body of criminal statutes that applies uniformly to all the military services. It is commonly abbreviated UCMJ. Vagrancy is begging, loitering, aimless wandering, etc. Vandalism is willful or malicious destruction, injury, disfigurement, or defacement of any public or private property without consent. Willful refers to an action which is done intentionally, knowingly, and purposefully, not accidentally or thoughtlessly.
Sources of Crime Statistics
There are two principal sources of statistics on prevalence of crime in American society. The Uniform Crime Reports (UCR) published annually by the Federal Bureau of Investigation (FBI) since the early 1930s collates information on crimes reported to police and on arrests nationwide. Federal, state and local law enforcement agencies voluntarily transmit to the FBI information on 29 types of offenses. For eight major crimes, known as “index offenses,” the data include information on age, race, and number of reported crimes solved. Data are not as complete for the other 21 offenses. In 1973, the Bureau of the Census began the annual National Crime Survey (NCS), which was subsequently renamed the National Crime Victimization Survey (NCVS). In the 1994 survey, about 120,000 people age 12 and over in a representative sample of 56,000 housing units were interviewed about crimes directed against them personally during the previous six months. The Uniform Crime Reports and the Crime Victimization Survey each have marked strengths and weaknesses. Most crimes are never reported to the police, so they are not included in the UCR. Many of these unreported crimes against individuals are reflected in the NCVS, but the NCVS covers only household and personal crimes where the individual is the victim; it does not cover crimes against organizations such as embezzlement, fraud, shoplifting, or arson. The victimization studies were started in 1973 because so much crime was believed to be going unreported. The first victimization survey confirmed this belief, showing that the number of robberies and aggravated assaults was about four times the number recorded by local police departments. This prompted programs to encourage reporting of crime to the police, to keep better local records on crime, and to standardize procedures including reporting to the FBI. The steady increase in crime shown in the FBI’s annual reports reflects, in part, the success of programs to improve reporting procedures rather than an increase in crime. Improvements in reporting procedures for the UCR significantly reduce the validity of comparisons over time, especially when comparing current crime rates with the rates of 10 to 20 years ago. The victimization surveys rely on data collected the same way year after year, so this is the preferred source when analyzing changes in the crime rate over time. Most crimes against businesses, such as shoplifting and employee theft are handled outside the criminal justice system and are not captured by either the UCB or NCVS. They are handled internally (job termination, restitution, demotion, etc.), through civil litigation, or are written off as a cost of doing business.
Prevalence of Crime
Most studies of the prevalence of crime count the number of crimes committed. Of course, one person may commit many crimes. Few studies analyze what percentage of the population has participated in committing crimes. Such studies tell us what percentage of the population we should expect to have a criminal record. One of the more useful studies of criminal participation looked at all males born in 1956 and arrested as adults in California for “retainable offenses” between 1974 and 1985. This includes most felonies and misdemeanors for which the defendant is booked and fingerprinted and subject to incarceration. It excludes juvenile offenses. It also excludes most misdemeanor traffic offenses including DUI, public drunkenness, possession of not more than 28.5 grams of marijuana, and violations of local ordinances. In other words, the study tracked the more serious adult offenses for this group from age 18 to age 29. The number of arrests was compared with the total California population in this age group to determine the percentage arrested for the first time during any given year and the cumulative percentage arrested at least once by age 29. The study found that 35.4% of California males born in 1956 had been arrested at least once for a felony or serious misdemeanor after age 18 and before they reached age 29. Almost half of these were arrested for one of the most serious offenses (the eight FBI Crime Index offenses).
Ref 33 Caution is appropriate when using statistical data about the prevalence of any type of behavior, as such information may be misleading and can be misused. For example, statistics that apply to the general population will usually be different from frequency rates found in a self-selected and pre-screened pool of persons undergoing security processing..
Employee Integrity Tests
In response to the high cost of employee theft, many businesses, especially retail stores, have sought additional means to screen out job applicants most likely to engage in theft or other dishonest practices. A number of psychological tests, commonly called integrity or honesty tests, have been developed for this purpose.
There are two general types of tests. One type asks direct questions about attitudes toward dishonest behaviors, such as: What percentage of people do you think steal from their employer? Do you know for certain that some of your friends steal from their employer? What punishment is appropriate for a person caught stealing $5?
This line of questioning is based on the theory that people tend to assume that other people are much the same as themselves. That is, the dishonest person is likely to believe that dishonesty is common, to know people who are dishonest, and to believe that petty dishonesty does not deserve severe punishment.
A second type of test measures personality characteristics such as conscientiousness, reliability and trustworthiness. These tests aim to predict a broad range of counterproductive work behaviors including absenteeism, disciplinary problems, and drug abuse as well as theft. The American Psychological Association (APA) formed a Task Force on the Prediction of Dishonesty and Theft in Employment Settings to assess the accuracy of integrity tests and the social policy questions associated with them. The task force identified many problems with these tests, but found that the best tests are useful and have predictive validity. However, the APA found little information is available to justify the cutoff scores marking success or failure on the tests, and no information is available on how many potentially honest employees are lost for each potentially dishonest one who is excluded. Although the purpose of many test questions is transparent, lying on the test does not seem to be as much of a problem as many people fear.
Ref 34 A recent review of all previous analyses of integrity tests also concludes that these tests have some predictive validity, but that they are better at predicting organizationally disruptive behaviors in general than the more specific behavior of employee theft.
Ref 35 Although integrity tests purportedly identify an individual as honest or dishonest, or high, medium or low risk, the result is actually a probabilistic judgment. A more careful scoring might indicate, for example, a 60% or 70% chance that a given employee will or will not steal merchandise from the store. Integrity tests have a large number of what are called false positives, that is, cases in which an individual is identified incorrectly as high risk. Others may be identified as low risk when they are really high risk. All screening mechanisms are fallible to some degree. An integrity test may be appropriate when many applicants are being screened for just a few jobs, or when it is used as only one of many variables in the employment decision. For a retail store seeking to hire honest sales clerks, a simple paper-and-pencil integrity test will be at least as effective and objective as a personal interview, and more effective than simply hiring the first qualified applicant for the job. The integrity test does not appear to be sufficiently sophisticated and discriminating to be used in the security clearance process.
Sources of Additional Information
The Department of Justice maintains the Bureau of Justice Statistics Clearinghouse, which is a central location for ordering a wide variety of studies and reports dealing with the criminal justice system. Reports are sent free of charge. The address is P.O. Box 179, Annapolis Junction, MD 20701-0179. Phone: 800-732-3277. Fax: 410-792-4358. The Internet address, which has lists of publications, is http://www.ojp.usdoj.gov/bjs/. For data on drugs and crime, information is available from the Drugs & Crime Data Center & Clearinghouse, 1600 Research Blvd., Rockville, MD 20850. Phone: 800-666-3332. Most reports are free. The FBI’s annual Uniform Crime Reports may be purchased from the Government Printing Office.
1. Flyer, Eli S. (February 1995). Recruits with a Preservice Arrest History: Identification, Characteristics and Behavior on Active Duty. Report prepared for Directorate for Accession Policy, Office of the Assistant Secretary for Defense (Force Management Policy). Contract No. DAAL03-91-C-0034. Conclusions are based on automated records analysis of over 300,000 recruits who entered military service between FY 1977 and FY 1988 from the states of Florida, Illinois and California. Prior arrests were identified through self-reporting by recruits, Entrance NAC, and automated check of state criminal history records.
2. Hollinger, R. C. (1989). Dishonesty in the workplace: A manager’s guide to preventing employee theft. Park Ridge, IL: London House Press, pp. 10-11.
3. Baker, M., & Westin, A. (1987). Employer perceptions of workplace crime. Washington, DC: Bureau of Justice Statistics, Department of Justice.
4. Langan, P. A., & Cunniff, M. A. (1992). Recidivism of felons on probation, 1986-89. (Bureau of Justice Statistics Special Report). Washington, DC: Department of Justice.
5. See Bureau of Justice Statistics (1989). Recidivism of prisoners released in 1983. (Special Report). Washington, DC: Department of Justice, and Greenfield, L. A. (1985). Examining recidivism. (Bureau of Justice Statistics Special Report). Washington, DC: Department of Justice. Secondary analysis of Table 3.
6. Tillman, R. (1986). The prevalence and incidence of arrests among adult males in California. BCS Forum. Sacramento: California Department of Justice, Bureau of Criminal Statistics.
7. Telephone communication from Dr. Allan Beck, U.S. Department of Justice, Bureau of Justice Statistics, to Richards J. Heuer, Jr., Defense Personnel Security Research Center, July 1995. Dr. Beck is the principal researcher for the study of recidivism of first-time arrestees. The study uses a sample of persons from eight states arrested for the first time for a felony or misdemeanor in 1978 and 1984 and tracks them through 1991. The preliminary results are based on a sample of 23,371 persons arrested in 1978.
8. Garcia, E. (1990). An integrated county court system. In Proceedings of a Bureau of Justice Statistics/SEARCH Conference, Juvenile and adult records: One system, one record? Washington, DC: Department of Justice.
9. Wolfgang, M. E. (1990). The nature and severity of juvenile crime and recidivism. In Proceedings of a Bureau of Justice Statistics/SEARCH Conference, Juvenile and adult records: One system, one record? Washington, DC: Department of Justice. Also see Wolfgang, M., Thornberry, T., & Figlio, R. (1987). From boy to man, from delinquency to crime. Chicago: University of Chicago Press.
10. Defense Manpower Data Center (1990). Juvenile offenders in the military: Summary of fiscal year 1984-1987 Florida accessions. Monterey, CA: Author. Also Flyer, E. S. (1991). Juvenile offenders in military service: Florida delinquency study. Report prepared for the Directorate of Accession Policy, Office of the Assistant Secretary of Defense (Force Management and Personnel).
11. Bureau of Justice Statistics (1996). Criminal victimization in the United States, 1994. (NCJ-158022) Washington, DC: U.S. Department of Justice.
12. Federal Bureau of Investigation (1991). Crime in the United States: Uniform crime reports, 1990. Washington, DC: U.S. Department of Justice, Table 1.
13. Boland, P., Mahanna, P., & Sones, R. (1992). The prosecution of felony arrests, 1988. (Report No. NCJ-130914). Washington, DC: Department of Justice, Bureau of Justice Statistics.
14. Belair, R. R. (1990). The future availability of juvenile records. In Proceedings of the Bureau of Justice Statistics/SEARCH Conference on Juvenile and adult records: One system, one record? Washington, DC: Department of Justice.
15. Flyer, Eli S. (February 1995). Recruits with a Preservice Arrest History: Identification, Characteristics and Behavior on Active Duty. Prepared for Directorate of Accession Policy, Office of the Assistant Secretary of Defense (Force Management Policy), Contract No. DAAL03-91-C-0034.
16. Data developed by E. S. Flyer for his previously cited study on Recruits with a Pre-Service Arrest History. Flyer provided the data to R. J. Heuer, PERSEREC, in July 1992.
17. Bureau of Justice Statistics (1995). Survey of criminal history information systems, 1993, (NCJ-148951). Washington, DC: Department of Justice.
18. SEARCH (1985). Criminal justice information policy: Data quality of criminal history records. Washington, DC: Bureau of Justice Statistics.
19. See Bureau of Justice Statistics (1991). National conference on improving the quality of criminal history records: Proceedings of a BJS/SEARCH conference. (Report No. NCJ-133532). Washington, DC: Department of Justice.
20. Woo, J. (1992, Sept. 9). Most states now have laws permitting stores to impose civil fines on shoplifters. The Wall Street Journal, p. B1.
21. Baumer, T. L., & Rosenbaum, D. P. (1984). Combating retail theft: Programs and strategies. Boston: Butterworth Publishers, Chapters 2 and 3.
22. Clark, J. P., Hollinger, C., Smith, L. F., Cooper, P. W., Parilla, P. F., & Smith-Cunnien, P. (1979). Theft by employees in work organizations–a preliminary final report. Minneapolis: University of Minnesota Press.
23. COMSIS Corporation (1995). Understanding youthful risk taking and driving. DOT HS 808 318. Washington, DC: National Highway Traffic Safety Administration.
24. Snyder, J. M. (1988). The private employer and criminal history records, p. 33, in Bureau of Justice Statistics (1988). Open vs. confidential records, conference proceedings,. (NCJ-113560). Washington, DC: U.S. Department of Justice, p. 57.
25. Kirtley, J. E. (1988). Media access to criminal history records. In Bureau of Justice Statistics (1988). Open vs. confidential records, conference proceedings. (NCJ-113560). Washington, DC: U.S. Department of Justice.
26. COMSIS Corp. (1995). Understanding youthful risk taking and driving. DOT HS 808 318. Washington, DC: National Highway Traffic Safety Administration.
27. Pursley, R. D. (1984). Introduction to Criminal Justice (3rd ed.). New York: Macmillan, p. 90.
28. Wallerstein, J. & Wyle, C. J. (1947). Our law-abiding lawbreakers. Probation, 25, 107-112.
29. Lasky, M. S. (1974, January 27). One in three hotel guests is a towel thief, Bible pincher or worse. The New York Times Travel Section.
30. The President’s Commission on Law Enforcement and the Administration of Justice (1967). Task force report: Crime and its impact — an assessment. Washington, DC: U.S. Government Printing Office, p. 103.
31. McNamee, M. (1996). A flat tax might make Apr. 15 trickier. Newsweek, Apr. 8, p. 135.
32. Provided by Defense Investigative Service with additions from undated FBI publication Reference Guide to Aid in
Understanding Arrest Abbreviations.
33. Tillman, R. (1986). The prevalence and incidence of arrests among adult males in California. BCS Forum. Sacramento: California Department of Justice, Bureau of Criminal Statistics.
34. Goldberg, L. R., Grenier, J. R., Guion, R. M., Sechrest, L. B., & Wing, H. (1991). Questionnaires used in the prediction of trustworthiness in pre-employment selection decisions: An A.P.A. task force report. Washington, DC: American Psychological Association. For different assessment of integrity tests, see U.S. Congress, Office of Technology Assessment (1990). The use of integrity tests for pre-employment screening. Washington, DC: U.S. Government Printing Office. For recent literature reviews on integrity testing, see O’Bannon, R. M., Goldinger, L. A., & Appleby, G. S. (1989). Honesty and integrity testing: A practical guide. Atlanta, GA: Applied Information Resources. And Sackett, P. R., Burris, L. R., & Callahan, C. (1989). Integrity testing for personnel selection: An update. Personnel Psychology, 37, 491-529.
35. Ones, D. S., Viswesvaran, C., & Schmidt, F. L. (1992). Meta-analysis of integrity test validities (Final Technical Report prepared for Defense Personnel Security Research Center). University of Iowa: Department of Management and Organizations. Also refer to limitations of FBI criminal record data base. The Attorney General’s Report on Criminal History Background Checks.