urban males, like Paul Cowan, will be arrested at some time during their lives. (The figure for nonwhite urban males is 90 percent, for U.S. males in all categories 50 per cent; for all females it is 12 per cent.) Like Paul Cowan, many of those arrested are not convicted. In fact, of about 8.6 million persons arrested in 1971 for all criminal acts other than traffic offenses, nearly 4 million were not convicted. They are presumed innocent. In practice, they often suffer consequences as grave as if they had been guilty.

The F.B.I. is the major source of arrest-record information. As a matter of routine, almost all police departments in the country forward to the bureau for filing the fingerprints of persons they have arrested. (All persons fingerprinted upon induction into the armed services are also on record in the F.B.I. fingerprint files.) Testifying in the case of Menard v. Mitchell in 1970, a bureau official reported that, on the average working day, the bureau received 29,000 sets of fingerprints. Only 13,000 came from law enforcement agencies. The remaining 16,000 sets were sent in by banks, insurance companies, government employers (municipal, county, state, and Federal), licensing agencies and the like. In return, these agencies received from the F.B.I. whatever information it had in its files on the 29,000 persons involved. That's how Paul Cowan's Brooklyn arrest record got to the people who give out hack licenses in Boston. While the bureau has been very efficient about gathering and disseminating arrest records, it has been fairly careless about including data on the disposition of the cases. In the Menard case, the special agent in charge of the F.B.I. Indentification Division, Beverly Ponder, got a little testy when questioned about this by a volunteer lawyer for the National Capital Area Civil Liberties Union, Raymond Twohig:

TWOHIG. Does the F.B.I. make any effort to obtain final dispositions where requests are received for arrest records? Before disseminating those arrest records?

PONDER. We urge the contributors [to the F.B.I. fingerprint files] to submit to us final dispositions, but we don't go out and try to pick them up.

Under further questioning, Ponder testified that there is no statistic available within the F.B.I. on the final dispositions that have been recorded in the bureau's files and that he knew of no way to make an intelligent estimate of them. That helps to explain how it happened that the Boston hack-licensing people weren't told that the charges against Paul Cowan had been dismissed. Some employers are not interested in arrests, only convictions. One such, it was thought, is the Federal Civil Service Commission. Mr. Ponder was asked about that by Twohig:

TWOHIG. Is the F.B.I. aware that recently Federal job-application forms were changed, and the question which asked if the applicant was arrested now asks if he has been convicted?

PONDER. Yes. I am aware of that.

TWOHIG. DO Federal agencies, in particular civil-service commissions, receive at present all information about arrests-or only arrests with convictions when they apply to the F.B.I.?

PONDER. They receive all the material that appears on the identification records.

TWOHIG. And that includes conviction and non-conviction arrests?
PONDER. That is correct.

The circumstances of this case were that Dale Menard, a former Marine, had been arrested by the Los Angeles police for "suspicion of burglary." He was never convicted or even prosecuted. In fact, it is not clear that a crime was committed by anyone. Menard had the misfortune to be sitting on a park bench in a neighborhood where the police had received a telephone complaint about a prowler. With the help of the National Capital A.C.L.U., Menard sued to remove his arrest record from the files of the F.B.I. and to stop the F.B.I. from reporting his record to potential employers. Menard's suit has been in court for more than five years. It has been heard twice by Federal District Courts and twice by the United States Court of Appeals in the District of Columbia, where it is now awaiting decision.

Back in June, 1971, the Menard case was the subject of a controversial decision by Federal District Judge Gerhard Gesell. He ordered the F.B.I. to stop distributing arrest records to anyone but law-enforcement agencies and then only for law-enforcement purposes. Gesell found "that Congress never intended to or did in fact authorize dissemination of arrest records to any state or local agency for purposes of employment or licensing checks." He concluded that the arrest-record distribution system "is out of effective control."

Congress acted quickly to overturn the order. A bill introduced by Senators Alan Bible and Howard Cannon of Nevada was passed which made F.B.I. arrest data available to "any non-law-enforcement official or agency" authorized to get the information by state or local law. The two Senators said they were particularly concerned that the information be available to Nevada's gaming industry so that people with arrest records would be kept out.

The case for the bureau's role of maintaining and disseminating arrest records was recently set forth by L. Patrick Gray 3d, acting director of the F.B.I., in a written response to a question from Maryland's Senator Charles Mathias Jr., of the Senate Judiciary Committee, which was considering Gray's nomination as permanent director of the F.B.I. Gray wrote:

"The arrest-record files of the F.B.I. Identification Division as well as those of many state and local identification bureaus are replete with lengthy arrest records of longtime hoodlums and members of organized crime whose arrests never resulted in conviction. Many sex offenders of children are not prosecuted because parents of the victim do not want to subject the child to the traumatic experience of testifying. Others are not tried because key evidence has been suppressed or witnesses are, or have been, made unavailable. The latter situation is not uncommon in organized-crime cases. To prohibit dissemination of such arrest records would be a disservice to the public upon whom they [persons with records] might prey again."

Gray went on to speculate about "the potential school teacher with two prior rape arrests and no convictions" and "a police applicant with a prior Peeping Tom arrest and no conviction." Given these possibilities, "the rationale for disseminating arrest records not supported by convictions is substantial,” said Gray. Protesting this viewpoint, Ralph Temple, the lawyer who recently argued Dale Menard's current appeal, has commented: "That turns the Constitution upside down-it presumes guilt." Temple, who is legal director of the National Capital A.C.L.U., is trying to persuade the U.S. Court of Appeals in the District of Columbia that punishment by record dissemination, without trial and conviction, violates the Constitutional guarantee of due process of law.

Opposition to the dissemination of arrest records is mounting elsewhere. Representative Don Edwards of California and Senators Quentin Burdick of North Dakota and Sam Ervin Jr. of North Carolina are leading a fight to pass legislation prohibiting the F.B.I. from disseminating arrest records that do not result in convictions. Two United States Courts of Appeals have also recently found that questions about arrest records are racially discriminatory. Citing these court decisions, the New York City Commission on Human Rights issued "guidelines" on Jan. 4, 1973, stating that "it will be considered an unlawful discriminatory practice for employers or employment agencies to ask of any applicant or employee any questions relating to arrest records" or to solicit the information from another source. Illinois has passed a law making it an unfair labor practice to deny a job because of an arrest record.

The guidelines of the City Commission on Human Rights were an outgrowth of several days of hearings last year on employment difficulties faced by people with arrest records and people with conviction records. Those hearings were, in part, a result of the commission's earlier hearings on the employment practices of the Board of Examiners of the New York City Board of Education, which licenses teachers for the New York City public schools. The hearings had produced testimony about such things as the denial of teacher licenses to people arrested in civil-rights demonstrations in Mississippi. Another Board of Examiners case involved a young man, David Mills (not his real name), who had been convicted of a misdemeanor in New York City Criminal Court in December, 1969. In February, 1970, Mills applied for a license as a substitute teacher in the public schools. In May, 1970, he was summoned before the Board of Examiners to explain the circumstances of his conviction. At the time, Mills' conviction was on appeal, and he was assured by two examining officers that if it was reversed, he would have no difficulty getting a license.

In October, 1970, the Appellate Court unanimously reversed Mills' conviction "on the law and the facts." Mills immediately took a copy of the decision to the Board of Examiners. He then started to get a runaround. Even though he had taken the license examination the previous February, he was told for the first time that he now needed a "nomination" from a specific high school that wished to employ him. Next, he was told that his application had to be approved by the Board of Education's Department of Personnel. In late November, the Department of Personnel approved the license but the Board of Examiners still re

fused to issue it, claiming more time was needed to investigate Mills' "criminal" record. Finally, with delay piled upon delay, Mills filed suit against the Board of Examiners to compel it to issue the license. In the face of the lawsuit, the Board of Examiners finally granted Mills his license in March, 1971.

The first court case to be decided on the basis that inquiries about arrest records are racially discriminatory was Gregory v. Litton Systems, a case brought by the American Civil Liberties Union of Southern California. At first glance, Earl Gregory, a Los Angeles black, seems an unlikely candidate for a test case. He had a record of no fewer than 14 arrests. Gregory had sought a job as a sheetmetal mechanic. Although he was otherwise qualified, he was turned down because "Litton's standard policy," it was stipulated in court, "is not to hire applicants who have been arrested on a number of occasions beyond minor traffic offenses."

Gregorys trial indicated that his arrest was not unusual. Dr. Ronald Christensen, one of the authors of the Report of the President's Law Enforcement Commission, who appeared as a witness, testified, that a person who has been arrested once tends to accumulate additional arrests during his lifetime, the average for a white man being 7; for a black man the lifetime average is 12.5 Christensen and another prominent analyst of crime statistics, Dr. Marvin Wolfgang, also testified that on one large category of arrests-on "suspicion" or for "investigation”— blacks were arrested about four times as often as whites. As an indication of how much importance could be attached to these arrests, Dr. Wolfgang cited a study of "investigation" arrests in 1964 in Baltimore, which revealed that 98 per cent of the persons arrested were released without further proceedings. The court also heard extensive testimony about studies which showed that persons who had been arrested on a number of occasions performed as efficiently and honestly on the job as persons who had never been arrested.

Litton Systems argued that the "business justification for considering a person's arrest record in determining whether or not to hire him is the same as considering a record of conviction. . . . It is not a fact, and it cannot be assumed, that all arrests which did not result in conviction are unfounded." The testimony by Christensen and Wolfgang proved to Litton "that people with arrest records are arrest-prone, and that the proneness increases with the number of prior arrests. There is business justification in declining to hire people with arrest records because the employer has a legitimate reason in not wanting to hire people who are more likely to be absent when they are arrested. . . ." While Litton cited no other "business justifications," the firm expressed a certain pique that it was being singled out for attack. An inquiry about arrest records, Litton told the court, "is one of the most common employment practices known to man. Almost anyone who has ever applied for a job has answered this type of question... the employer who does not obtain and utilize arrest information in determining whether or not to hire is the exception, not the rule."

Litton's arguments about the frequency with which employers rely on arrest records are supported by a February, 1972, report issued by the Georgetown University Law Center. The report was prepared under a grant from the U.S. Department of Labor. It found, that "the existence of arrest records is allpervasive in our society and that millions of individuals may be hampered in the efforts at finding jobs and pursuing careers because of such records." Most state and county governments inquire about such records on job-application forms, according to the Georgetown report. Sometimes arrest records are absolute barriers to public employment, the report says, but more commonly they restrict applicants to low-skill jobs.

In its first decision in the Dale Menard case, the U.S. Court of Appeals in the District of Columbia cited a study showing that 75 per cent of the employment agencies in the New York area will not accept for referral applicants with arrest records. Another survey cited by the court showed that, of 75 employers, 66 would not consider hiring a man who had been arrested for assault although he had been acquitted.

The fact that Litton's policies were no worse than those of other employers did not deter a Federal court from awarding Earl Gregory $4,400 in damages because of the inquiry about his arrest record. In February, 1973, that judgment was upheld by the U.S. Court of Appeals in California.

The most sweeping action against arrest records was a recent decision by the Supreme Court of Colorado. The court ruled that arrest records of persons not convicted must be expunged unless the police can demonstrate the need to retain a particular record.

Dorothy Davidson, executive director of the Colorado A.C.L.U., was the plaintiff in the suit. She had been arrested in 1968 while trying to act as an observer at a police-hippie confrontation in Denver. (These arrests are an occupational hazard for local A.C.L.U. directors. In 1968, there were similar arrests in four other states. I was the director of the New York C.L.U. at the time and was arrested observing an antiwar demonstration in Manhattan's Washington Square Park. None of us were convicted.) The court found expungement of arrest records necessary because "the record here is devoid of any facts showing... the ability of the [Denver police] department to keep them confidential."

Only expungement can keep arrest records confidential, as has been demonstrated in New York. In 1964, the New York State Identification and Intelligence System was established. It was not supposed to be available for private-employment checks. However, in 1969, the State Legislature passed a law requiring the fingerprinting of all employes in the securities industry, one of the state's largest. Prints are now checked against the six million on file with N.Y.S.I.I.S. and the information is given to the State Attorney General, who makes it available to the employers. In his first report on the program, Attorney General Louis Lefkowitz announced with great pride that several hundred employes had been found to have "criminal records" and that many were fired. About half of those fired had no record of convictions, only arrests. A Federal District Court dismissed the New York Civil Liberities Union challenge to the fingerprinting and the decision was upheld on appeal.

Fingerprinting of employes had been sought by the securities industry as a means of trying to stop thefts. Fear of crime is always the reason for compiling and disseminating arrest records. The records presumably tell us whom we should fear and thus enable us to shield ourselves from them. The trouble is that people with records don't simply disappear from the face of the earth. They continue to live in our cities, many of them in our black ghettos. Having used their records to keep them out of our places of employment, we still have to live with them. Are they less likely to commit crimes because we can keep them from getting jobs?

Job problems are not the only consequences of arrest records. Consider the case of Mildred Brown. She has lived in a housing project on Manhattan's East Side for 20 years. The New York City Housing Authority recently found that she was "ineligible for continued occupancy on the ground of nondesirability," a finding based in large part on her son's arrest record. While no comprehensive studies have been done on housing problems growing out of records of arrests not followed by convictions, Mrs. Brown's case is not unusual.

Arrest records also affect chances for admission to educational institutions, opportunities for financial credit, and, as Litton's arguments about "arrestprone" people suggest they increase the likelihood of re-arrest. A young black man in Washington, D.C., recently filed suit to stop police harassment growing out of his arrest record. He had been arrested while a senior in high school in May, 1970. In January, 1971, he was acquitted of a robbery charge because of an apparent case of mistaken identity. He is now a college student and a National Merit Scholarship winner. According to his court complaint, on at least three occasions police have shown his photograph in neighborhoods where crimes have been committed, seeking to have him identified as the criminal in some new crime. Each time this has been done, his family and acquaintances have been interrogated anew.

People with arrest records are natural targets for investigation when new crimes are committed. Inevitably, arrests follow. Being "arrest-prone," therefore, is often a function of having been arrested. The practice is to "round up the usual suspects," as police Capt. Louis Renault (played by Claude Rains) put it in the film "Casablanca."

Each year, law-enforcement agencies grow more efficient in disseminating records. The bureau's Identification Division, which was receiving 29,000 sets of fingerprints daily in 1970, is only a manual system operating through the U.S. mail. Recently, to supplement this service, the bureau established a computerized system, the National Crime Information Center, to speed the exchange of records with local law-enforcement agencies around the country.

Private industry is in the record-keeping and record-selling business in a big way. The biggest firm in the business, Retail Credit Company of Atlanta, has more than 7.000 employees, maintains dossiers on about 45 million people and produces more than 35 million reports a year. The members firms of a trade association known as the Associated Credit Bureaus, which among them do a business

of close to $1-billion a year, maintain files on about 10 million Americans. The information in these files is sold to creditors, employers and landlords.

Much of the information sold by the credit bureaus comes from law-enforcement files. There is no indication that the F.B.I. gives any information directly to a credit bureau. However, the F.B.I. has been notoriously loose in policing the further distribution of the records it disseminates. Here is the testimony on this point of Special Agent Ponder at the Menard trial:

Q. Is there any procedure whereby the F.B.I. or any division of the F.B.I. inquiries into the uses to which the arrest information is put by contributing agencies?

A. No.

Q. Are any restrictions imposed by the F.B.I. on the use to which that information is put?

A. Yes. Official business only.

Q. Are there memoranda or orders indicating that there is a restriction? A. It is right on the record itself.

Q. Are there any form letters that are sent to contributing agencies explaining what "official business only" means?

A. Well, in years gone by we have brought this to the attention of contributors, that this information is disseminated strictly for official use only.

The questioning of Ponder took place on Dec. 17, 1970. Subsequently, he supplied for the court record the F.B.I.'s most recent notice on the issue, a memorandum from the late J. Edgar Hoover dated Oct. 18, 1965. If the records were used for other than "official uses," Hoover warned, "this service is subject to cancellation." No other penalty was mentioned.

The laws of many states provide that juvenile records are confidential. However, they have been as readily available as all other records. The F.B.I., which respects all state and local laws which confer access to records on various agencies, disregards state laws governing confidentiality. Special Agent Ponder was asked in the Menard trial, “Are there any differences in dissemination practices with respect to juveniles and adults, of arrest records?" His complete reply was: "No."

The New York State Identification and Intelligence System also gives out juvenile arrest records. When I asked the director of the agency about this, he told me that N.Y.S.I.I.S. understood the law to make the disposition of a juvenilearrest confidential, but not the underlying arrest.

The widespread availability of law-enforcement records has created a pariah class of millions of persons made up of ex-convicts and people arrested but not convicted. That pariah class is the crime problem, or at least a large part of it. Crime is centered in those cities and those parts of cities where people go when they are trying to escape their past records. The time-honored way of escaping was to lie when asked, "Have you ever been arrested?" As law-enforcement agencies and private companies improve the efficiency of their dissemination of records, lying no longer works. The truth about the past record catches up, no matter where a person moves,

Shocking as the notion might be, those lies served an important social purpose. When a man with an arrest record could lie his way into a job all of us had a little less to fear. Today, when we expose the lie, we simply insure that one more person won't be able to escape his arrest record and integrate himself into society.

Judicial and legislative action to control the use and distribution of arrest records will not have much impact for a long time to come. The records of people arrested in the past have often been so widely circulated as to make it very difficult, if not impossible, to prevent them from continuing to haunt people for years to come. But action has to start sometime, and the best time is now. There is even a small sign that the F.B.I. is concerned. At the hearing last Feb. 28 to decide whether he should be confirmed as F.B.I. director, L. Patrick Gray testified that he had "purged inactive arrest records of individuals age 80 and older from the fingerprint files." All the octogenarians I know who are out looking for jobs are very grateful.

Mr. BUCHANAN. Mr. Speaker, we are today 10 years away from the 1984 of George Orwell, but to many of us, the Big Brother of which he wrote is with us already.

It is unfortunate that as the Federal Government has expanded to meet the needs of the American public, the rights of that same public to conduct its affairs in private has been sublimated to expediency, but this is not the way it was originally intended.