It is also quite possible that the NCIC criminal history file violates the equal protection clause, by magnifying the consequences of present discriminatory police practices. Because the data it collects focus on street crimes and offenses that tend to be committed by the disadvantaged and minorities, and because of its indiscriminate inclusion of data on arrests for ill-defined crimes (such as arrests for suspicion) and arrests not followed by charges or convictions, the NCIC file reinforces the existing class and racial bias of the criminal justice system. Arrests for "suspicion" or "investigation," for vagrancy and other vague crimes, constitute a major form of police discrimination against blacks and Chicanos. Keeping permanent computerized files of such arrests (and in some cases convictions) adds another layer of discrimination to the criminal justice system, encouraging surveillance, the imposition of stiffer penalties, etc., on minorities. When such records are made available to employers, discrimination in the hiring process is compounded. (See Gregory v. Litton Systems. )4 2 CONCLUSIONS AND RECOMMENDATIONS LEAA is investing substantially in the creation of a national computerized criminal offender information file serving state and local contributors and users. The files at present contain too much information and are accessible to too many agencies, including private business concerns. Few safeguards protect legitimate rights of personal privacy or prevent use of the information in a discriminatory manner. Standing alone, the new information systems require immediate and comprehensive regulations and controls. The potential harm that they could inflict, however, is 42316 F. Supp. 401 (C.D. Calif. 1970). The President's Commission on Federal Statistics, Vol. II (1971), p. 546, reported: "An applicant who lists a previous arrest faces at best a 'second trial' in which, without procedural safeguards, he must prove his innocence-at worst the listing of the arrest disqualifies him per se. The arrest record is the first of a series of 'status degradation ceremonies' in the criminal law process." The Commission pointed to the fact that in a recent survey of 39 countries not one lists arrests that have not led to convictions. "The 'criminal record' in these 39 countries includes only convictions, and often only those for serious crimes." (p. 548) For a detailed treatment of the problems inherent in the broad dissemination of arrest records, see Security and Privacy of Criminal Arrest Records, Hearings before Subcommittee No. 4 of the House Committee on the Judiciary, 92nd Congress, 2nd Session (April 1972). made even more critical by (a) the coincident development of new state-level intelligence files on civil disorders and dangerous persons that are maintained by the same agencies that administer the information files and that are accessible to participants in the national system, and (b) the rapid expansion of computerized records on individuals maintained by welfare, health, education and other public and private agencies that can be (and have been) readily interfaced with the criminal offender files. To ensure integrity and fairness of such systems: No further federal funds should be distributed for the operation, expansion or development of state and/or national information systems prior to the completion of a study by a neutral and reputable scientific body-such as the National Academy of Sciences or the National Commission on Individual Rights-setting forth the policy options facing the nation in regard to such systems. In particular, the study should examine: the necessity for various possible kinds of information (and intelligence) systems to effective law enforcement; the most appropriate structure(s) for such systems (centralized, decentralized, state controlled, law enforcement controlled, etc.); the kinds of safeguards that can and should be built into such systems; the relationship of the data banks developed under such systems to other data banks; and the proper forms for public regulation of such systems. If a national or multi-state criminal justice information system is found to be justified after the full report by the independent body, federal legislation should be passed creating an affirmative right to privacy, which would require the government to justify in advance any activity that would conflict with that right. In addition, regulatory laws should be passed to control all information systems (1) developed and maintained by agencies of the federal government, (2) operated by state or local agencies but supported wholly or partly by federal funds and (3) interfacing with federal systems or federally supported systems. (If such legislation is not passed, the Attorney General should issue formal regulations under his present powers.) Among the kinds of safeguards that should be considered for inclusion in the legislation are the following: • The legislation should spell out with specificity (rather history offender files and the matter to be included therein. Only serious crimes that pose actual danger to the public and are likely to involve interstate mobility should be included.43 The national file should contain only identifying data, records of active arrests, convictions and sentencing and an identification of the state agency maintaining the full records. Records of arrests not followed by indictment or information within one year, or conviction within two years, should be deleted from the files. When a criminal law is repealed, the record of prior violations of it should be deleted from the computer. An affirmative obligation should be placed on all participating states to delete such information from their own files as well as the FBI files. Failure to do so should result in termination of participation in the system and imposition of financial penalties. • Specific congressional approval should be required for any expansion or modification of the initial system, such as a decision to interface with other data banks within the Justice Department or other federal agencies. • The legislation should provide for operation and/or monitoring of the national system by an independent agency or commission that would conduct audits and spot-checks on both the operating agency and the contributing agencies, and would report annually (and periodically, as requested) to Congress. The commission, which should include constitutional lawyers, representatives of citizens' groups and other civilians, would share responsibility with the operating agencies for the development of detailed guidelines to govern the operation of the system. No state should be allowed to participate in the federal system until such time as it has passed its own statute reflecting the national standards, creating a state monitoring body and providing for the protection of individuals whose records are included in the system. 43 This would remove most victimless crimes from the file as well as the other petty offenses that are most subject to enforcement patterns that are socially discriminatory. • Each individual should be granted the right of access, notice and challenge to all information pertaining to him. A person should receive notification when his file is opened, and upon each entry he should be informed of his right to access and challenge. During a challenge, to protect the individual from incomplete and inaccurate information, an embargo should be placed on use of the information. • The legislation itself should establish general standards for the operation of the system and should require the Attorney General to issue more specific, mandatory regulations to govern dissemination of the information to criminal justice agencies, the courts and corrections institutions and other public agencies. The information should be graded so that only the summary computer record (not access to supplementary state investigative files) will be available to certain recipients, such as federal and state employers, or courts seeking to determine sentences. 44 44 The legislation should probably also waive sovereign immunity on behalf of the United States and make them jointly liable with any individual who disseminates information to an unauthorized recipient, on a strict liability basis. The law should include minimum damage penalties, attorneys' fees, and a provision for treble damages; the individual defendant and the governmental employer shall have the burden of proving a good-faith effort to make sure that the recipient did have authority to request and receive the information, in order to escape punitive and treble damages. The same sanctions should apply for dissemination of erroneous information. U.S. district courts should be given jurisdiction without regard to the amount in controversy. APPENDIX F Correctionetics: A Blueprint for 1984 DANIEL H. LUFKIN* The American Justice Institute of Sacramento, California, working under a grant from the National Institute of Mental Health, completed in 1972 a six-volume report1 of a three-year study of "the utilization of advanced information system technology as a means of improving the correctional decision-making process." The aim of the study was to design a system to enable managers of correctional institutions to make completely objective decisions about the treatment and disposition of criminal offenders. The study was the work of the Institute's Correctional Decisions Information Project (CDIP), whose epigraph is inscribed on the second cover of Volume I of the report: "TODAY AN INFORMATION SYSTEM HOLDS FOR It must in no way demean the dedicated and intelligent effort of the CDIP staff to point out that any project that aims to create an automated personal data system to monitor and control the popula *Staff Consultant to the Committee 'Correctional Decisions Information Project, Correctionetics: Modular Approach to an Advanced Correctional Information System (Sacramento, Calif.: American Justice Institute), 1972. |