U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics Report of the National Task Force on Federal Legislation Imposing Reporting Requirements and Expectations on the Criminal Justice System Findings Recommendations Criminal Justice Information Policy July 2000, NCJ-183458 U.S. Department of Justice Bureau of Justice Statistics Jan M. Chaiken, Ph.D. Director This report was prepared by SEARCH, The National Consortium for Justice Information and Statistics, Kenneth E. Bischoff, Chairman, and Gary R. Cooper, Executive Director. The project director was Sheila J. Barton, Deputy Executive Director. Robert R. Belair, SEARCH General Counsel; Paul L. Woodard, SEARCH Senior Counsel; and Dr. Thomas A. Henderson, Executive Director, Office of Government Relations, National Center for State Courts, provided staff assistance for this report. Twyla R. Cunningham, Manager, Corporate Communications, and Michele J. Dawson, Writer/Researcher, edited this report. Jane L. Bassett, Publishing Specialist, provided layout and design assistance. The Federal project monitor was Carol G. Kaplan, Chief, Criminal History Improvement Programs, Bureau of Justice Statistics. Report of work prepared under BJS Cooperative Agreement No. 96-BJ-CX-K010, awarded to SEARCH Group, Incorporated, 7311 Greenhaven Drive, Suite 145, Sacramento, California 95831. Contents of this document do not necessarily reflect the views or policies of the Bureau of Justice Statistics or the U.S. Department of Justice. Copyright (c) SEARCH, Group, Incorporated, dba SEARCH, The National Consortium for Justice Information and Statistics, 2000 The U.S. Department of Justice authorizes any person to reproduce, publish, translate, or otherwise use all or any part of the copyrighted material in this publication, with the exception of those items indicating they are copyrighted or printed by any source other than SEARCH, The National Consortium for Justice Information and Statistics. Contents I. Introduction and executive summary II. Description of the State court systems and State criminal justice repositories State court systems State criminal justice repositories III. Examples of Federal mandates National Child Protection Act of 1993 Summary Specific requirements imposed Brady Handgun Violence Prevention Act Summary Specific requirements imposed The Lautenberg Amendment Summary Specific requirements imposed Sex offender registration statutes Summary Specific requirements imposed Establishment of registry Registration procedures Periodic address verification Special requirements for sexually violent predators Participation in the National Sex Offender Registry Court protection orders Summary Specific requirements imposed Entry of orders Hit confirmation and record validation Revision of protection order forms Federal grant programs National Criminal History Improvement Program Five Percent Set-Aside Program Crime Identification Technology Act Program Other Federal statutes and proposals Adoption and Safe Families Act of 1997 Welfare Reform Act Federal confidentiality regulations for drug and alcohol treatment records IV. Constraints on Federal mandates: The Tenth amendment and the Unfunded Mandate Reform Act of 1995 Constitutional challenges to Federal mandates on State and local governments. The Federal Government cannot co-opt the State legislative process. The Federal Government cannot require State officers to administer Federal programs Can the Federal government mandate "purely ministerial reporting requirements imposed on the States pursuant to the Commerce Clause? An open question The Federal Government can regulate State disclosures of motor vehicle information into the stream of interstate commerce Other Tenth amendment challenges since Printz Unsuccessful Tenth amendment challenges Tenth amendment issues raised but not resolved Unfunded Federal mandates State and local governments demand reform Requirements of the Unfunded Mandate Reform Act Post-Unfunded Mandate Reform Act developments V. National Task Force findings VI. National Task Force recommendations Appendix 1: Task Force participants Appendix 2: Implementation of Federal legislation imposing reporting requirements and expectations on selected State judicial systems Colorado Florida Louisiana I. Introduction and executive summary The Bureau of Justice Statistics (BJS), U.S. Department of Justice; SEARCH, The National Consortium for Justice Information and Statistics; and the National Center for State Courts established a national task force in response to the courts' expressed need to examine the extent to which and the manner in which Federal legislation imposes reporting requirements and expectations on the criminal justice system and, in particular, the courts. ***Footnote1: A complete list of the task force members and staff, and their biographies, is set out at appendix 1.*** This report of the National Task Force on Federal Legislation Imposing Reporting Requirements and Expectations on the Criminal Justice System ***Footnote2: Hereafter, Task Force or National Task Force.*** is focused on providing a response to the courts' request to review this issue. It is based on discussion and analysis by the Task Force at three meetings held as follows: in Sacramento, California, on January 14-15, 1998; in Baltimore, Maryland, on October 14-15, 1998; and in New Orleans, Louisiana, on March 11-12, 1999. The report is also based upon staff research of relevant case law, statutory law, secondary sources, and several surveys and interviews. The Task Force identified a number of Federal statutes that contain information reporting requirements that directly or indirectly impose financial, administrative and technical demands on State and local courts and justice agencies. The Task Force recognizes that such statutes are intended to serve important societal interests and that these statutes frequently result in or facilitate information benefits, including more complete records and integrated systems. The Task Force is concerned, however, that the need to evaluate the impact of these reporting demands on the criminal justice system is not being met. The Task Force is further concerned that, if current trends continue, Federal reporting mandates ***Footnote3: "Mandate" is used in a general context without implication of legal appropriation. See discussion in section III, infra.*** will place increasingly difficult demands on the criminal justice system, particularly the courts. This Task Force report: * Provides a "snapshot" of the State court and central repository systems and a review of legislative and judicial trends relating to Federal directives. See sections II and III. * Includes a review of constitutional challenges to certain Federal mandates on State and local governments, as well as congressional efforts to address the issue of Federal requirements imposed without sufficient accompanying funding. See section IV. * Examines three clusters of Federal statutes that create obligations or expectations that State and local courts and justice agencies will provide information: those establishing the sex offender registry systems; those relating to court protection orders; and sections of the Welfare Reform Act of 1996. See section III. Finally, the report includes the National Task Force's findings and recommendations relevant to the issue of Federal requirements and expectations that create demands upon State and local courts and justice agencies. Specifically, the National Task Force adopted the following findings and recommendations (commentary concerning each finding and recommendation appears in sections V and VI of this report). National Task Force findings 1. The National Task Force finds that, in recent years, the Federal Government's need for information from State and local courts and justice agencies has increased in terms of the quantity and the complexity of data required, and in terms of the speed with which information must be provided. 2. The National Task Force finds that information needs arising from the implementation of Federal legislation increasingly require both civil and criminal justice information. 3. The National Task Force finds that, customarily, many State and local courts have not been actively involved in implementing Federal information initiatives, and have not received Federal assistance to meet the information demands arising from the implementation of Federal legislation. 4. The National Task Force finds that the recognition of the courts as a partner in the design and implementation of criminal justice information systems and in meeting the information needs arising from Federal legislation is a positive and effective approach. 5. The National Task Force finds that the demands imposed by federally mandated reporting requirements are exacerbated when the requirements do not build upon existing information practices. 6. The National Task Force finds that some important Federal justice assistance programs have been structured in such a way that they have effectively excluded the courts from full participation. 7. The National Task Force finds that the response to information needs arising from Federal legislation has been most effective in those States that have adopted a statewide strategy and approach that includes the courts. 8. The National Task Force finds that disposition reporting requirements impose significant demands on courts, which, to be met effectively, require greater resources than currently available to many courts, as well as an effective statewide approach to meeting disposition reporting requirements. National Task Force recommendations 1. The National Task Force recommends and encourages the development and implementation of integrated information systems because these systems, among other benefits, enhance the capacity to comply with information needs arising from the implementation of Federal legislation. 2. The National Task Force recommends that States include all affected parties, including the courts, in the process for the development and implementation of justice information systems and the implementation of information reporting requirements that arise from Federal legislation. 3. The National Task Force recommends that courts and justice agencies explore and provide for the use of civil justice information for criminal justice purposes. 4. The National Task Force recommends that in order to increase the efficiency and effectiveness of State and local courts and justice agencies, these organizations should work with Congress and relevant Federal departments and agencies to: a) identify and evaluate the purposes of and need for imposing new reporting requirements and determine what information resources are currently available; b) define, with specificity, the information to be reported while retaining flexibility to take advantage of new technologies; c) identify collateral consequences of imposing these requirements; d) ensure that appropriate Federal financial resources reach all of the entities that are involved in fulfilling the information needs arising from Federal legislation, particularly the courts; and e) evaluate whether proposed reporting requirements create conflicting or ambiguous demands on the State and local justice agencies required to implement them. 5. The National Task Force recommends that information needs arising from the implementation of Federal legislation or expectations should, where possible, leave States with substantial discretion to determine the manner in which the State will comply with the reporting requirement or expectation. 6. The National Task Force recommends that State and local courts and justice agencies work together and with Congress and the appropriate Federal departments and agencies to design and implement necessary reporting mechanisms. 7. The National Task Force recommends that Congress provide funding to State and local courts and justice agencies sufficient to implement Federal information reporting requirements and expectations. 8. The National Task Force recommends the establishment of a catalogue of Federal programs and initiatives that impose or encourage information reporting requirements to be met by State and local courts and justice agencies. II. Description of the State court systems and State criminal justice repositories State court systems State court systems are large and diverse, with more than 16,200 State trial courts, including more than 13,600 courts of limited jurisdiction (authorized to hear only certain types of cases) and more than 2,500 courts of general jurisdiction. ***Footnote4: Brian J. Ostrom and Neal B. Kauder, Examining the Work of State Courts, 1996 (Williamsburg, VA: National Center for State Courts, 1997) p. 12 [hereafter, Examining the Work of State Courts Report].*** The structure of State court systems varies widely. Thirteen States, for example, have adopted a unified trial court structure, meaning that courts are consolidated into a single general-jurisdiction court level with jurisdiction over all cases and procedures. ***Footnote5: Ibid.*** The remaining 37 States retain nonunified trial court systems featuring a sometimes-baffling array of courts of general and limited jurisdiction. As the June 1999 report of the National Task Force on Court Automation and Integration notes, the organizational and funding structures of State courts are widely varied. "In some [S]tates, all court staff work for a centralized unified [S]tate court administrative office. In others, the administrative office plays a very minor role in court operations. In some [S]tates, staff reports to an elected clerk of the court in the executive branch, which means the courts do not control resources related to their operations." ***Footnote6: U.S. Department of Justice, Bureau of Justice Assistance, Report of the National Task Force on Court Automation and Integration, by SEARCH Group, Inc. (Washington, DC: Government Printing Office, June 1999) p. 9 (internal citations omitted) [hereafter, Court Automation and Integration Task Force Report].*** The report continues, "Courts are not built with the hierarchical structure commonplace in either executive branch agencies or the private sector. Leadership is more fragmented than in justice agencies." ***Footnote7: Ibid., p. 7.*** Independent, elected court clerks with control over their own budgets are common. Some States are funded almost entirely at the State level, and others at the local level; most receive mixed funding. ***Footnote8: Ibid., p. 9. "About 10 [S]tates are almost totally [S]tate-funded, and 11 are mostly [S]tate-funded. Fifteen are almost totally locally funded, and another six are mostly locally funded. Eight have an equal mix of [S]tate and local funding." Ibid.*** When considering the impact of Federal reporting requirements and expectations on State and local courts, it is important to keep these distinctions in mind. The demand imposed on a highly centralized urban court by a particular mandate may be significantly different than the demand imposed by that same requirement or expectation on a small rural court in a State with a decentralized court system. It is estimated that a staggering 87.5 million new cases were filed in State courts in 1996. These cases included more than 20 million civil and domestic relations cases, more than 13 million criminal cases, 2 million juvenile cases and approximately 52 million traffic and ordinance violations. ***Footnote9: Examining the Work of State Courts Report, p. 7, supra note 3.*** Between 1984 and 1996, the number of civil filings increased by 31 percent, criminal filings were up by 41 percent, juvenile filings by 64 percent and domestic relations filings by 74 percent, yet traffic filings fell by 15 percent. ***Footnote10: Ibid.*** Not surprisingly, roughly two-thirds of the States were unable to keep up with the number of criminal and civil cases filed during the 1984-1996 period. ***Footnote11: Ibid.*** In 1996, there were more than 28,000 trial judges and quasi-judicial officers in the Nation's State trial courts, with more than 1,200 (mostly quasi-judicial) officials added since 1995. As these figures indicate, the domestic relations category - comprised of divorces, support/custody matters, domestic violence, paternity, interstate child support and adoption - was, by far, the fastest growing category during the 1984-1996 period. With the exception of interstate-support cases, caseloads grew in all of these categories during the covered period. ***Footnote12: Ibid., p. 37.*** Criminal caseloads are also growing, reaching an all-time high of 13.5 million State court filings in 1996, the most recent year for which statistics are available. ***Footnote13: Ibid., p. 51.*** Criminal caseloads increased by 50 percent in courts of general jurisdiction and by 43 percent in courts of limited jurisdiction during the 1984-1996 period. ***Footnote14: Ibid.*** The number of filings, as would be expected based upon population differences, varied widely from State to State. Illinois, for example, reported approximately 563,000 criminal case filings in 1996, while Wyoming reported slightly fewer than 2,000 criminal filings during that period. ***Footnote15: Ibid., p. 54.*** Approximately one-third of the States - 16 - each reported more than 100,000 criminal filings in unified and general jurisdiction courts. ***Footnote16: Ibid.*** It is estimated that there were more than 169,000 criminal trials in the United States in 1996. ***Footnote17: Ibid., p. 57.*** In addition to their traditional responsibility for the adjudication of cases, courts increasingly are being called upon to perform social service functions, consuming enormous time and effort. ***Footnote18: Court Automation and Integration Task Force Report, p. 26, supra note 5.*** Furthermore, these functions require the courts to collect more information, develop new data management functions, and improve their ability to exchange information with other justice system agencies. ***Footnote19: Ibid.*** To meet these challenges, new court information systems are in demand to facilitate the exchange of new kinds of data and to balance conflicting needs for reporting statistical data while still meeting operational needs. ***Footnote20: Ibid.*** Mushrooming caseloads, new responsibilities, and limited resources combine to place a premium on improvements in efficiency. As the National Center for State Courts has noted: "Given that the resources necessary to process cases in a timely fashion, such as judges, court support staff, and automation, seldom keep pace [with increased caseloads], courts must constantly search for more efficient ways to conduct business. Moreover, [F]ederal and [S]tate governments have adopted or proposed significant changes in our criminal, juvenile, domestic, and civil justice systems over the past 5 to 10 years. In many instances, these changes are not adequately funded to cover any additional or unintended burden placed on [S]tate courts." ***Footnote21: Examining the Work of State Courts Report, p. 10, supra note 3.*** Increasingly, courts and other justice agencies are integrating their information systems to improve efficiency. In fact, the cost savings factor associated with increased efficiency is one of the main driving forces behind the move to integrate State court information systems. ***Footnote22: Court Automation and Integration Task Force Report, p. 17, supra note 5.*** The need for additional resources has led the courts, in recent years, to seek Federal financial assistance to aid in their efforts to introduce new technologies and to assist them in meeting their increasing responsibilities and information reporting obligations. This was not always the case. One Task Force Member recalled that a former Chief Justice in the early 1980s was very proud that his court did not accept any Federal funding. Although this is an extreme case, it illustrates the old view that the courts do not and should not participate in Federal criminal justice assistance programs. State and local courts, for example, customarily do not view themselves as "soldiers" in the "wars" on crime and drugs. Instead, the courts view themselves as neutral arbiters. Traditionally, this has led to a somewhat detached attitude toward Federal funding. Today, however, most court systems realize the importance that Federal financial assistance can play in meeting many of their goals for innovation. As a result, courts are reaching out to the Federal Government, as well as the legislatures and State executives, in order to secure increased funding to assist in paying for technological improvements and to assist in meeting Federal and State reporting requirements and other obligations. Other "change drivers" that are promoting the development of integrated court information systems (and thereby further blurring the line that once existed between the civil and criminal court systems) are: Federal mandates (discussed in section III), advances in technology, public expectations that justice information will be made available, and the changing role of the courts to encompass not only adjudication, but also an increasing number of social service information reporting functions. ***Footnote23: Ibid., pp. 17-27.*** State criminal justice repositories The State courts are critical players in the State criminal justice information system. Other critical players, which supply the courts with information and also rely upon the courts to provide them with information, are the "State central repositories." State central repositories - now established in every State - are responsible for the collection, maintenance and dissemination of criminal history records. The State repositories are agencies or bureaus within State governments, often housed within the State police or a cabinet-level agency with public safety and criminal justice responsibilities. ***Footnote24: U.S. Department of Justice, Bureau of Justice Statistics, Use and Management of Criminal History Record Information: A Comprehensive Report, by Robert Belair and Paul Woodard, SEARCH Group, Inc. (Washington, DC: Government Printing Office, 1993) p. 19.*** Typically, the repositories are charged under State law with establishing comprehensive files of criminal history records; establishing an efficient and timely system for retrieving the records; ensuring that the records are accurate and up to date; and establishing rules and regulations governing the dissemination of criminal justice and noncriminal justice users (State and Federal law also establish such standards). ***Footnote25: Ibid.*** Central repositories are often responsible for maintaining fingerprint and other identification records. At the heart of the repositories' mission is responsibility for maintaining comprehensive criminal history records, popularly referred to as "rap sheets." Criminal history records typically contain information identifying the subject of the record, including name and numeric identifiers, such as social security number, physical characteristics and fingerprints. ***Footnote26: Ibid., p. 22.*** Criminal history records also include information about the record subject's current and past involvement with the criminal justice system, including arrests or other formal criminal charges and dispositions resulting from these arrests or charges. ***Footnote27: Ibid.*** The repositories typically limit their collection of criminal history information to felonies or serious misdemeanors. ***Footnote28: Ibid., p. 23.*** Other types of criminal justice information seldom included in criminal history files include "investigative information," "intelligence information," traffic offenses, and certain other petty offenses, all of which are excluded from the definition of "criminal history records" in Federal regulations governing federally funded record systems. ***Footnote29: Ibid.*** Criminal history information is reported to the State repositories by courts and criminal justice agencies at every level of government (Federal, State, and local) and at each stage in the criminal justice process (by police departments, prosecutors offices, courts and corrections agencies). ***Footnote30: Ibid., p. 26.*** State and Federal statutes mandate that courts and criminal justice agencies report information to the central repositories. While the particulars of these requirements vary, they are designed to ensure that "downstream" agencies - such as prosecutor, courts, parole, and corrections agencies - provide prompt and accurate data to the State repositories. ***Footnote31: Ibid., p. 28.*** While criminal history records traditionally were used exclusively for criminal justice purposes, in recent years many public and private noncriminal justice agencies have argued, persuasively and successfully, for access to these records. ***Footnote32: Ibid., p. 39.*** Among the noncriminal justice users that have been successful in persuading policymakers to grant them access to criminal history records are the military, national security agencies, and State licensing boards, as well as private employers and nonprofit organizations that are hiring for sensitive positions (or volunteers in sensitive child-servicing positions) involving vulnerable populations, such as children and the elderly. III. Examples of Federal mandates "Mandates" is a broad term that is used frequently as a catchall for five types of regulations: 1. Direct orders imposed by the Federal Government on State and local governments to carry out policies or programs. 2. Conditions tied to grants to States and localities, which, while technically voluntary, are unlikely to be declined by the States (for example, Medicaid and highway funds). 3. "Cross-cutting requirements," which crosscut almost all federal grant programs, such as requirements that non-discrimination and environmental protections must be adhered to when the grant funds are spent by the State or local government entity. 4. "Cross-over sanctions," which tie a State or local government's compliance with a smaller program to their receipt of some larger pot of Federal money. 5. Preemption of State or local actions. ***Footnote33: Paul Posner, The Politics of Unfunded Mandates: Whither Federalism? (Washington, DC: Georgetown University Press, 1998) p. 4.*** The Task Force uses the term in the broad sense, although the Unfunded Mandate Reform Act of 1995 and the Supreme Court's 10th amendment jurisprudence rely on more narrow definitions. In recent years, the Federal Government has increasingly required States to provide various noncriminal justice agencies and private sector entities with access to criminal justice records. These various mandates are designed to further important governmental interests, ranging from locating missing children to the regulation of sexual predators to gun control. This section of the report examines some of those requirements, particularly those related to establishing the sex offender registry systems, those relating to court protection orders, and sections of the Welfare Reform Act of 1996. The demands these obligations impose upon State and local courts and justice agencies vary depending upon a number of factors. It is almost always more demanding, for instance, to implement and carry out a reporting requirement that requires the State or local court or agency to provide "interpretive data" (such as an assessment of whether a defendant "knowingly and intelligently" waived his or her right to a jury trial) than it is to simply forward facts, such as whether the defendant was arrested or convicted. Interpretive data are less reliable than factual data because they require court and justice agency personnel to make subjective judgments. Another factor that may result in a Federal requirement being difficult to implement is if it requires that data be collected or processed in a nontraditional way, rather than building upon preexisting directives or customary information practices. The mandates discussed in this section are intended to be illustrative and the discussion is designed to convey the nature of the reporting requirement, as well as its impact on affected State agencies (frequently State repositories and State courts). National Child Protection Act of 1993 * Summary Section 2(a) of the National Child Protection Act of 1993 requires an authorized criminal justice agency in each State (in most cases, the State's central criminal records repository) to report child abuse crime information (arrests, convictions, and so forth) to the Federal Bureau of Investigation (FBI) for inclusion in its criminal history files (the Interstate Identification Index system, also known as the III), or to index such information in such files. ***Footnote34: Pub. L. 103-209, codified at 42 U.S.C. Sec. Sec.5119, et. seq.*** The Act also authorizes the appropriation of funds to help the States meet established timetables for automating child abuse crime records, improving arrest and disposition reporting for such records, and making the records available on-line through the national criminal history background check system (the III system). Subsequent amendments to the Act provided that States need identify child abuse crime records only to the extent that such records can be identified by reference to statutory citations or descriptive labels set out in their criminal record databases. Further, the mandatory reporting requirement applicable to child abuse crime records can be met by reporting or indexing all felony and serious misdemeanor arrests and dispositions, without accounting for child abuse crime records separately. * Specific requirements imposed The requirement of reporting child abuse crime information to the FBI is mandatory. However, the amendments seemed to modify the requirement so that it amounts to nothing more than what the State repositories were already supposedly doing voluntarily: (1) reporting all arrests and dispositions in felony and serious misdemeanor cases to the FBI; and (2) identifying child abuse crimes only if they could do so under existing criminal statutes and record maintenance procedures. Brady Handgun Violence Prevention Act * Summary The "interim provision" of the Brady Handgun Violence Prevention Act established a 5-day waiting period applicable to the sale of handguns by federally licensed gun dealers. ***Footnote35: Pub. L. 103-159, 107 Stat. 1536, codified at 18 U.S.C. Sec. 922.*** It also required local law enforcement agencies to make reasonable efforts - including record searches in available State and national record systems - to ascertain during the 5-day period whether the sale of a handgun would violate the law. ***Footnote36: This latter provision was declared to be unconstitutional by the Supreme Court in Printz v. United States, 117 S. Ct. 2365 (1997), which is discussed in section IV.*** The "permanent provision" of the Brady Act provides for point-of-sale background checks on purchasers of all firearms, using the National Instant Criminal Background Check System (NICS), which became operational on November 30, 1998. The Act also requires the Attorney General to establish timetables by which all of the States can provide criminal records on an on-line basis to the NICS, and provides for additional Federal funding to expedite the upgrading of State and Federal criminal history record systems, the indexing of records in these systems, and the linking of the systems together to form the NICS. Because the NICS must be able to provide an immediate response as to whether a prospective sale of a firearm would violate Section 922 of the 1968 Gun Control Act, an effective NICS must have access to information concerning all of the disqualification categories set out in that section. In addition to felons and fugitives, these categories include drug addicts and abusers, adjudicated "mental defectives," persons subject to certain domestic relations protective orders, and persons who have been convicted of certain domestic violence misdemeanors. * Specific requirements imposed The NICS required by the permanent provisions of the Brady Act is a Federal system established and operated by the FBI. The extent to which the States (and State and local justice agencies) participate actively in the system is voluntary. All States have set timetables for full participation in the III system, which will provide the essential framework of the NICS. However, compliance with those timetables is not mandatory, except to the extent that the States have accepted Federal funding to assist in preparing for III participation and to assist in establishing databases of prohibited classes of firearms purchasers. Also, participation in the NICS by conducting an initial State search is voluntary. Most States are participating, however, and have received Federal funding to support their efforts. The Lautenberg Amendment * Summary The Lautenberg Amendment is a provision of the 1997 Omnibus Appropriations Act that amends the 1968 Gun Control Act to add a new category of persons prohibited from buying or possessing firearms: persons convicted of certain domestic violence misdemeanors. ***Footnote37: Pub. L. 104-208, codified at 18 U.S.C.Sec. 922(g).*** The law applies to persons with misdemeanor convictions involving elements of domestic violence, as defined in the law, if there was an "intimate-partner" relationship between the offender and the victim and if the offender was represented by counsel (or waived counsel) and had a jury trial, if entitled to one (or waived the right). * Specific requirements imposed The Lautenberg Amendment is a Federal law. The extent to which State and local justice agencies participate in screening gun purchasers for Lautenberg-type convictions is voluntary, except to the extent that obligations have been undertaken in connection with Federal funding, or where States have added a comparable prohibition to their State firearms law. Whether undertaken by Federal or State officials, the Lautenberg Amendment will require the following decisions to be made concerning gun purchasers who have misdemeanor convictions that might trigger the prohibition: 1. Whether the conviction is for an offense that is classified as a misdemeanor or, if such classification is not in use, is an offense punishable by a prison term of 1 year or less. 2. Whether the offense involved an element of domestic violence (the use or attempted use of physical force). 3. Whether there was an "intimate-partner" relationship between the offender and the victim. 4. Whether the offender was represented by counsel or intelligently waived the right of representation. 5. Whether there was a jury trial, if the offender was entitled to one, or the right was intelligently waived. There is no mandatory requirement that States report misdemeanor domestic violence crimes to the FBI, nor a requirement that such crimes, if reported, be flagged. Sex offender registration statutes The following Federal statutes relate to sex offender registration: * Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (including Megan's Law). ***Footnote38: Pub. L. 103-322, Section 170101, codified at 42 U.S.C.Sec. 14071.*** * Pam Lychner Sexual Offender Tracking and Identification Act of 1996. ***Footnote39: Pub. L. 104-236, codified at 42 U.S.C.Sec. 14072.*** * Section 115 of General Provisions of the 1998 Appropriations Act for the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies. * Summary The 1994 Jacob Wetterling Act, as amended by Megan's Law, sets minimum standards for State sex offender registration programs, including a requirement to register certain sex offenders for at least 10 years; to inform offenders of their registration obligations when they are released from custody; and to keep registration information up to date and release it as necessary for public safety. The 1996 Lychner Act amended the Wetterling Act to add several new requirements, including a lifetime registration requirement for certain serious offenders and recidivists. Finally, the 1998 Appropriations Act for the Departments of Commerce, Justice and State (CJSA) further amended the Wetterling Act to add new requirements relating to the registration of sexually violent predators, persons convicted of sex offenses by Federal courts or military courts martial, and nonresident offenders who have crossed into another State to work or attend school. The CJSA also requires States to participate in the National Sex Offender Registry maintained by the FBI. States that fail to comply with these standards within the applicable timeframe are subject to a mandatory 10 percent reduction of Federal formula grant funding they receive from the Edward Byrne Memorial State and Local Law Enforcement Assistance Program. The deadline for compliance with the Wetterling Act, as amended by Megan's Law and the 1997 CJSA, was September 12, 1997, subject to a possible 2-year extension to September 12, 1999, for States that demonstrated good-faith efforts to achieve compliance. The deadline for compliance with the Lychner Act was October 2, 1999, subject to a possible 2-year extension for States that made good-faith efforts. * Specific requirements imposed Establishment of registry Each State must establish a sex offender registry conforming to the requirements of the Wetterling Act, as amended. The Wetterling Act does not specify where the registry must be located, nor how access is to be provided to appropriate officials. The registry must provide for: * Registration for at least 10 years for persons convicted of (1) offenses involving sexual molestation or sexual exploitation of minors, or (2) sexually violent offenses. * Lifetime registration for (1) persons who are subject to registration for a current offense and who have a prior offense that qualifies for registration, (2) persons convicted of aggravated sexual abuse, or (3) sexually violent predators. States must also register resident offenders who were convicted in other States or by Federal courts or court martial, and nonresidents who come into the State to work or attend school. Registration procedures The Wetterling Act requires that whenever a person subject to the registration requirement is released from prison or placed on parole, probation or supervised release, the court, correctional official, or other appropriate official shall: 1. Obtain fingerprints and a photograph of the person. 2. Inform the person of his or her duty to register and obtain the information required for registration. 3. Inform the person of the need to keep registration information current, including changes of address and re-registration in other States to which the person may move or into which the person may cross to work or attend school. 4. Require the person to read and sign a form stating that the requirements have been explained. Registration information, including changes of address, must be made available to local law enforcement agencies where registered persons will reside and to an appropriate State records system. In addition, fingerprints and conviction data for persons required to register must be promptly transmitted to the FBI, if not previously transmitted. Law enforcement agencies are required to notify the public that registered persons will be released into the community, as necessary to protect the public. Periodic address verification Addresses of registrants must be verified at least annually through some means designed to effectively verify the location of registrants, impress upon them that they continue to be under observation, and make law enforcement agencies aware of the presence of registered sex offenders in their jurisdictions. Special requirements for sexually violent predators Persons who have been classified in this category are subject to these additional registration requirements: * They are subject to lifetime registration, even if subsequently determined to be rehabilitated. * They must verify their addresses on a quarterly basis. * In addition to their name, identifying information and address, their initial registration information must include offense history and documentation of any medical treatment received. States must establish procedures for making sexually violent predator determinations. Such a determination must be made by a court after considering the recommendation of a board comprised of treatment experts, victims' rights advocates, and law enforcement officials, unless the U.S. Attorney General approves alternate procedures allowing the determination to be made by some other agency or board utilizing some other method of securing appropriate input to ensure fair determinations. In lieu of the above registration requirements, the U.S. Attorney General may approve alternative State approaches that provide comparable or greater effectiveness in protecting the public from unusually dangerous or recidivistic sexual offenders. Participation in the National Sex Offender Registry The CJSA amendments to the Wetterling Act require each State to provide information to the FBI for inclusion in the National Sex Offender Registry (NSOR). This file will be established as part of the FBI's "National Crime Information Center (NCIC) 2000" program and will include - in addition to basic registration information - fingerprints and mugshots of registrants. Until the NSOR is operational, States may participate in an interim national pointer system that flags FBI criminal records of persons registered in State sex offender registries. Court protection orders The following Federal statutes relate to court protection orders: * National Protection Order File provision of the 1994 Violent Crime Control and Law Enforcement Act. ***Footnote40: Pub. L. 103-322, amending 28 U.S.C.Sec. 534.*** * Gun Control Act of 1968. ***Footnote41: 18 U.S.C.Sec. 922(g)(8).*** * Summary A provision of the 1994 Violent Crime Control and Law Enforcement Act provides that Federal and State justice agencies that submit information for inclusion in the FBI's national crime databases may also submit court orders for the protection of persons from stalking or domestic violence. Orders issued by both criminal and civil courts may be entered into the FBI's National Protection Order File, which operates as a part of the NCIC. Another provision of the 1994 Violent Crime Control and Law Enforcement Act amended the 1968 Gun Control Act to make it unlawful for persons subject to certain domestic abuse restraining orders to purchase or possess firearms. In order to qualify as firearms disqualifiers, court protection orders must meet the following criteria: * The order must be a "final" order issued after a hearing with appropriate notice to the subject of the order. * There must be an "intimate partner" relationship between the parties to the order. * The order must contain explicit findings or restraining language indicating clearly that the court intended the order to protect the victim from actual or threatened physical harm. * Specific requirements imposed Entry of protection orders into the FBI National Protection Order File is voluntary. However, due to the relevance of these orders to firearms sales, Federal funding is available from two bureaus within the U.S. Department of Justice, the Bureau of Justice Statistics (BJS) and the Bureau of Justice Assistance (BJA), to encourage States to establish State protection order files and to participate in the national file. Participation in State protection order files or in the FBI file will entail the following responsibilities for State and local justice agencies: Entry of orders In most cases, protection orders will be entered into the FBI file and comparable State files by local law enforcement agencies, which will receive such orders from issuing courts through the same procedures now applicable to arrest warrants issued by criminal courts. These law enforcement agencies will need to determine whether particular orders qualify for entry into the files and whether certain orders qualify for entry into the FBI file as so-called "Brady disqualifiers." Most local jurisdictions will need to establish communications between their law enforcement agencies and civil courts, similar to the arrangements that exist with criminal courts. Hit confirmation and record validation Protection orders entered into the FBI file will be subject to the same requirements regarding hit confirmation and periodic record validation that are applicable to other FBI "hot files." Law enforcement agencies will be able to use existing procedures and arrangements with criminal courts to comply with these requirements. However, new arrangements will need to be made between law enforcement agencies and civil courts in their jurisdictions. Revision of protection order forms Most State courts in the country will need to revise the forms now in use for protection orders in domestic violence and stalking cases. Current forms frequently are deficient in two respects: (1) they do not contain the minimum mandatory identification information concerning the subject of the order to qualify for entry into the FBI file or any State file that will be accessible for name searches, and (2) the language of the orders makes it difficult or impossible for law enforcement officials to determine whether particular orders meet the requirements for entry as Brady disqualifiers or as firearms disqualifiers under comparable State firearms laws. Federal grant programs As noted above, several of the information needs arising from the statutes summarized in this section are tied to Federal funding. This means that in some cases, these obligations are established as conditions of Federal funding, and, in other cases, failure to implement particular requirements can cause a loss of existing grant entitlements. The two Federal grant programs to which most of the requirements are tied are: (1) the National Criminal History Improvement Program (NCHIP), administered by BJS and (2) the Five Percent Set-Aside Program, administered by BJA. A third Federal grant program, established by the Crime Identification Technology Act of 1998 (CITA) is designed to provide funding for an especially wide array of criminal justice information identification and communications initiatives. ***Footnote42: Pub. L. No. 105-251,Sec. Sec. 101-102 (Oct. 9, 1998), 112 Stat. 1871, codified at 42 U.S.C.Sec. 14601.*** Eligibility requirements for CITA funds are tied to assurances that the State "has the capability to contribute pertinent information" to NICS and assurances that a "statewide strategy for information sharing" using integrated systems is underway or will be initiated to improve the functioning of the criminal justice system. * National Criminal History Improvement Program The National Criminal History Improvement Program (NCHIP) implements grant provisions in the Brady Act, the National Child Protection Act and the 1994 Violent Crime Control Act that pertain to the improvement of criminal history record systems. The program is aimed primarily at increasing the accuracy and completeness of State criminal history records and the extent to which these records are maintained in automated systems, and appropriately flagged, so as to be immediately available to the NICS. Some NCHIP funds are also available to assist States in establishing databases and database links to facilitate the identification of persons other than felons - for example, drug addicts, mental defectives, and persons subject to court restraining orders - who are prohibited from purchasing firearms under the 1968 Gun Control Act, as amended. NCHIP builds upon an earlier grant program administered by BJS - the Criminal History Record Improvement Program (CHRI), which awarded $27 million to the States in fiscal years 1990 through 1992, to improve criminal history record systems. * Five Percent Set-Aside Program The Five Percent Set-Aside Program basically supports the same objectives as the CHRI program and NCHIP and is closely coordinated with them. Under that program, each State is required to set aside 5 percent of the Edward Byrne Memorial State and Local Law Enforcement Assistance Formula Grant funds received in fiscal year 1992 and thereafter specifically for the improvement of criminal justice records. Under grant guidelines issued by BJA, each State is required to take the following actions before spending any set-aside funds: * Establish a criminal justice records improvement task force. * Conduct an assessment of the completeness and accuracy of criminal history records within the State. * Identify the reasons why record quality is low. * Develop a records improvement plan, which BJA must approve. Although these grant programs were intended to help the States implement the requirements of the Federal statutes summarized earlier, in some ways they impose additional demands, such as the requirements to establish task forces and conduct record assessments. In addition, successful implementation of the Federal initiatives invariably involves the allocation of State funds. Finally, in some cases, funding does not reach all of the agencies that are required to undertake new obligations, or not in sufficient amounts to cover all of the new costs. * Crime Identification Technology Act Program Congress established the third program, CITA, in 1998 in recognition of the importance of criminal justice information, identification, and communication technologies. ***Footnote43: 42 U.S.C.Sec. 14601.*** CITA authorizes $1.25 billion over 5 years for grants to the States to "establish or upgrade an integrated approach to develop information and identification technologies and systems" to: * Upgrade criminal justice and criminal history record systems, including systems operated by law enforcement agencies and courts. * Improve criminal justice identification. * Promote the compatibility and integration of national, State, and local systems for criminal justice purposes, firearms eligibility determinations, identification of sex offenders, identification of domestic violence offenders, and for certain authorized background checks unrelated to criminal justice. * Capture information for statistical and research purposes to improve the administration of criminal justice. ***Footnote44: 42 U.S.C.Sec. 14601(a).*** In support of these goals, CITA specifically authorizes 16 categories of projects for which grant funds made available under the Act can be used. Select examples include: * Court-based criminal justice information systems that promote the reporting of dispositions to State central repositories and the FBI and also promote compatibility with, and integration of, court systems with other criminal justice information systems. ***Footnote45: 42 U.S.C.Sec. 14601(b)(9).*** * Sexual offender and domestic violence offender identification and information systems. ***Footnote46: 42 U.S.C.Sec. 14601(b)(12)-(13).*** * Systems to facilitate full participation in NICS (both criminal justice and noncriminal justice information components). ***Footnote47: 42 U.S.C.Sec. 14601(b)(6), (8).*** * Programs and systems to facilitate full participation in the III or the III Compact. ***Footnote48: 42 U.S.C.Sec. 14601(b)(4)-(5).*** * State centralized, automated, adult and juvenile criminal history record information systems, including arrest and disposition reporting. ***Footnote49: 42 U.S.C.Sec. 14601(b)(1).*** * Automated fingerprint identification systems and finger imaging, livescan, and other automated systems to digitize and communicate fingerprints. ***Footnote50: 42 U.S.C.Sec. 14601(b)(2)-(3).*** * Integrated criminal justice information systems to manage and communicate criminal justice information among law enforcement agencies, courts, prosecutors and corrections agencies. ***Footnote51: 42 U.S.C.Sec. 14601(b)(7).*** In order to be eligible for CITA funding, States must provide the Attorney General with a number of assurances, including that: * A "statewide strategy for information sharing systems" is underway or will be initiated to improve the functioning of the criminal justice system, with an emphasis on integration. This plan must take into consideration the needs of "all branches of the State Government," and those preparing the plan must have "specifically sought the advice of the chief of the highest court of the State." ***Footnote52: 42 U.S.C.Sec. 14601(c)(2).*** * The State "has the capability to contribute pertinent information" to the NICS. ***Footnote53: 42 U.S.C.Sec. 14601(c)(1).*** CITA is designed to provide substantial funding, but not fund the total cost of particular programs or proposals from the States. CITA restricts Federal funding to a maximum of 90 percent of the cost of a program or proposal to be funded, unless a waiver is obtained from the Attorney General. ***Footnote54: 42 U.S.C.Sec. 14601(d).*** Other Federal statutes and proposals Following are brief summaries of new laws or proposals pertaining to noncriminal justice programs that are outside the scope of the Task Force's study, but which may impose demands on State and local courts and justice agencies. * Adoption and Safe Families Act of 1997 The objective of the Adoption and Safe Families Act of 1997 is to ensure that children live in safe and permanent homes through requirements for more timely decisions and stronger guarantees of safety for abused and neglected children. ***Footnote55: Pub. L. 105-89.*** The Act establishes Federal standards and timelines for foster care and adoption proceedings, and for related programs and activities. Courts are the primary source of information on foster care and adoption proceedings, and can be expected to be involved in the tracking and reporting systems that support these initiatives. The Act requires States to make "reasonable efforts" to preserve and reunify families, except in egregious situations where the parent has: 1. Subjected the child to aggravated circumstances (as defined by State law and which might include, but which are not limited to, abandonment, torture, chronic abuse, and sexual abuse); 2. Been convicted of certain crimes; or 3. Had his or her parental rights to a sibling of the child involuntarily terminated. Court records and criminal histories will be the primary sources of the information needed to establish the existence of these egregious situations. The new timelines established by the Act will require the tracking of foster care and adoption proceedings. Permanency hearings, for example, must be held within 12 months of a child entering foster care. Subsequent judicial "reasonable-efforts" determinations must be made every 12 months, as long as the child remains in State custody. The Act also requires that a petition to terminate parental rights be filed for any child in State custody for 15 of the prior 22 months, unless the circumstances satisfy one of the exceptions set forth in the Act. Additionally, the Act establishes other timelines for cases that do not meet the "reasonable-efforts" test for which the case plan is not reunification with the child's family. To ensure compliance with the Act's requirements, State courts must be able to track these cases and activities. Further, the Act expands the requirement for providing notice of hearings. States are required under the Act to provide notice of hearings and reviews to foster parents, pre-adoptive parents, and relative caregivers, and to provide them with an opportunity to be heard. The requirement for providing these additional notices typically falls primarily on court personnel. The Act also requires States to establish procedures for criminal record checks of prospective foster and adoptive parents. Responsibility for this requirement will fall on local law enforcement agencies, court personnel, and the State repositories. The Act does not require that State background check procedures include fingerprinting of prospective foster or adoptive parents, and it does not preclude the charging of fees for criminal record checks. * Welfare Reform Act The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), better known as the Welfare Reform Act, replaced Aid to Families with Dependent Children (AFDC), an open-ended entitlement program. ***Footnote56: Pub. L. 104-193 and 45 C.F.R.Sec. 307.11.*** By contrast, PRWORA's Temporary Assistance to Needy Families (TANF) program is a State block grant program. TANF funds must be administered by the State legislatures. In addition, the Governor of each State is required to submit a State plan before a State can receive funds. PRWORA also imposes child-support enforcement requirements. These requirements, rather than the changes to the public assistance program, have had more of an impact on the courts. Because PRWORA requires implementation of specified support enforcement techniques and other programs, State legislative changes are required, which, in turn, affect State courts. Most significantly related to the data-gathering and data-sharing requirements, PRWORA requires that each State establish an automated State case registry that contains abstract information on the administrative and judicial support orders relating to paternity and support. For all support orders related to "IV-D cases" ***Footnote57: Section IV, Subtitle D of the Act, relating to restricting welfare and public benefits for aliens.*** and for every support order related to a non-IV-D case established or modified after October 1, 1998, abstract data must be gathered by the State case registry and transmitted to the Federal Case Registry (FCR). Federal regulations specify the data elements that must be gathered by the State case registry and transmitted to the FCR. ***Footnote58: 45 C.F.R.Sec. Sec. 307.11(e)(3), (e)(4) and (f)(1).*** The data needed to comply with this requirement reside with the courts. In fact, the courts are the only single source for the required data on the Non IV-D cases. In addition to the child support provisions, the Act denies some welfare eligibility if a family member is a fugitive felon or a probation or parole violator or has been convicted of a drug-use felony. State repositories and courts will be involved in supplying the information necessary to implement this provision. Finally, the Act authorizes the Social Security Administration to enter into agreements with State and local correctional agencies to obtain information on incarcerated persons who are denied some or all benefits because of incarceration, and to study the feasibility of obtaining such information from other sources, including courts. * Federal confidentiality regulations for drug and alcohol treatment records Federal law and regulations intended to protect the confidentiality of drug and alcohol treatment records also have an impact on the State courts, particularly drug courts: ***Footnote59: 42 U.S.C.Sec. 290dd-2 and 42 C.F.R. Part 2.*** These laws and regulations apply to programs or agencies providing diagnosis of chemical dependency and referral to treatment for addicted offenders within the criminal justice system and substance abusing minors in the delinquency system as well as to actual rehabilitative services providers. Therefore when staff employed by the Drug Court performs the assessment (or diagnosis) of chemical dependency and/or the referral to treatment, the Drug Court is a 'treatment program' for purposes of confidentiality regulations. ***Footnote60: Rebecca Holland, "Confidentiality of the Substance Abuse Treatment Records of Drug Court Participants: An Overview of the Federal Laws and Regulations" (unpublished report, October 1997) p. 1 (citing 42 C.F.R.Sec. 2.11).*** These regulations place detailed restrictions on the disclosure of protected records unless the patient has consented to the release or pursuant to one of the exceptions set forth in the regulations. ***Footnote61: 42 C.F.R.Sec. 2.31.*** Violations of the regulations are a criminal offense and violators are subject to fines of up to $500 for the first offense and $5,000 for each subsequent offense. ***Footnote62: 42 C.F.R.Sec. 2.4.*** IV. Constraints on Federal mandates: The Tenth amendment and the Unfunded Mandate Reform Act of 1995 Congressional imposition of mandates, such as those discussed in section III, has not gone without notice or controversy. ***Footnote63: As noted previously, the term "mandates" is used in a broad context in this report as a catchall for various types of regulations.*** Federal directives that impose enforceable duties on State and local governments, as well as on Indian tribes and the private sector, have, in fact, received considerable attention in recent years from Congress, the courts, and State and local governments. Congress has used mandates ***Footnote64: For example, the previously referenced National Child Protection Act of 1993 (Pub. L. 103-209).*** as a means to require State and local governments to comply with a wide array of legislation, ranging from information reporting requirements to environmental laws to labor and civil rights statutes; at the same time, Congress has taken notice that these requirements place demands on the resources of State and local governments. These Federal mandates have been frequently criticized, particularly by the State and local governments that are required to implement them. While State and local governments and other critics acknowledge that Federal directives may produce societal benefits, they object to certain mandates on constitutional and/or fiscal grounds. Constitutional objections are based on the principle of federalism and the belief that the Constitution (particularly the 10th amendment) creates a Federal Government of limited powers, with those powers not delegated to the Federal Government or prohibited to the States being reserved to the States or the people. Fiscal objections arise when the Federal Government imposes a required activity on State and local governments without also providing the funds to pay for the implementation of those mandates. These measures, commonly referred to as "unfunded mandates," force State and local governments to either raise taxes or fund the federally mandated program at the expense of State and local programs. Both the constitutional and fiscal arguments against Federal requirements have resulted in congressional action and court decisions that place modest restrictions upon the ability of the Federal Government to impose mandates on State and local governments. Constitutional challenges to Federal mandates on State and local governments The 10th amendment, ***Footnote65: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Constitution, Amendment X.*** once dismissed by Justice Stone as nothing "but a truism that all is retained which has not been surrendered," ***Footnote66: United States v. Darby, 312 U.S. 100, 124 (1941).*** has become an increasingly dynamic area of constitutional law. States have challenged a number of Federal statutes in recent years, alleging that the challenged statutes unconstitutionally infringe on State authority by requiring State executive or legislative officials to participate in Federal legislative schemes governing such diverse areas as radioactive waste disposal, background checks for prospective firearms purchases, and the collection and disclosure of motor vehicle record information. Mississippi has even established a committee to evaluate whether Federal mandates encroach on State authority under the 10th amendment, presumably as a means of identifying possible directives to be legally challenged. ***Footnote67: Jeffrey A. Keithline and Daniel L. Skoler, "Unfunded Mandates: Headaches, Dilemmas and Myths for Government Lawyers at all Levels," The Public Lawyer (Summer 1998) p. 16.*** In recent years, several of these challenges have reached the Supreme Court, and it appears likely that 10th amendment constraints on Federal power will continue to evolve. Guidance from existing 10th amendment case law provides some guideposts - and leaves many open questions, as discussed in this section. * The Federal Government cannot co-opt the State legislative process In 1992, the Supreme Court, in New York v. United States, ***Footnote68: 505 U.S. 144 (1992).*** invalidated a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which required the States to either enact legislation providing for the disposal of radioactive waste generated within their borders or take title to and possession of the waste. The Court concluded that the choice offered to the States under the Act was a false one because requiring the States to accept ownership responsibilities for the waste would "commandeer" the States for the implementation of Federal regulatory programs. On the other hand, requiring the States to enact legislation would also be unconstitutional. The Court concluded that the Federal Government "may not compel the States to enact or administer a Federal regulatory program." ***Footnote69: Ibid., at 188.*** * The Federal Government cannot require State officers to administer Federal programs Five years later, the Supreme Court, in Printz v. United States, ***Footnote70: 521 U.S. 898 (1997).*** ruled 5-4 that portions of the Brady Act ***Footnote71: Pub. L. No. 103-159, as amended (codified at 18 U.S.C.Sec. 922).*** that imposed requirements on State and local chief law enforcement officers (CLEOs) on a temporary basis were unconstitutional. The Brady Act required CLEOs, under certain circumstances, to accept a notice of proposed firearm transfer from a gun dealer and "make a reasonable effort to ascertain within 5 business days whether receipt or possession [by the prospective purchaser] would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General." ***Footnote72: 18 U.S.C.Sec. 922s(2).*** The Brady Act imposed this background check obligation on a temporary basis, until the NICS - the method by which immediate on-line purchase checks would be accomplished - became operational. The Supreme Court, noting that the text of the Constitution was silent on the precise issue involved, concluded: "The answer to the CLEOs challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court." ***Footnote73: Printz, 521 U.S. 898, 905.*** The Court found that historical practice "tends to negate the existence of the congressional power asserted here" ***Footnote74: Ibid., at 918.*** but, in the end, was inconclusive. ***Footnote75: The Court found that early congressional enactments "establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce Federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power." Ibid., at 907 (emphasis in original). The government pointed to a number of more recent statutes; however, the Court found them to be either inapposite or too recently enacted to be indicative of a constitutional tradition. Ibid., at 918.*** Turning its attention to the structure of the Constitution, the Court concluded that the Constitution envisioned a system of "dual sovereignty" with the State and Federal Government exercising concurrent power over the people, and that allowing the Federal Government to impress the police of the 50 States into service would "immeasurably and impermissibly" augment the power of the Federal Government and also threaten the balance of power among the branches of the Federal Government, permitting Congress to circumvent the executive branch and use State officials to implement its policies. Turning to its own prior rulings, including the previously referenced New York, the Court found the challenged provisions of the Brady Act to be an unconstitutional co-opting of State executive officers. ***Footnote76: The government had argued in favor of a balancing test to weigh the Federal Governmental interest against a statute's potential imposition on the States. The Court declined this invitation, concluding that while a balancing analysis would be permissible under "a federal law of general applicability [that] excessively interfered with the functioning of state governments" in cases, "where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a "balancing" analysis is inappropriate." Ibid., at 932 (emphasis in original).*** * Can the Federal Government impose "purely ministerial reporting requirements" on the States pursuant to the Commerce Clause? An open question In Printz, the Supreme Court took notice of the issue of the Federal imposition of information reporting requirements on State and local governments, but reserved the issue for future consideration. The Court noted that statutes "which require only the provision of information to the Federal Government, do not involve the precise issue here, which is the forced participation of the States' executive in the actual administration of a Federal program. We, of course, do not address these or other currently operative enactments that are not before us; it will be time enough to do so if and when their validity is challenged in a proper case." ***Footnote77: Ibid., at 918.*** Justice O'Connor, in a concurring opinion, stated: "The Court appropriately refrains from deciding whether other purely ministerial reporting requirements imposed by Congress on State and local authorities pursuant to its Commerce Clause powers are similarly invalid. See, e.g., 42 U.S.C.Sec. 5779(a) (requiring State and local law enforcement agencies to report cases of missing children to the Department of Justice)." ***Footnote78: Ibid., at 936 (Justice O'Connor, concurring).*** "Purely ministerial reporting requirements," as Justice O'Connor characterized them, are the type of mandate most frequently imposed on State and local courts and justice agencies. While the Court declined to address the constitutionality of these measures in Printz, the Court recognized these types of reporting requirements as a distinct category of Federal mandate, increasing the likelihood that the constitutionality of one of these measures will be challenged in the future. * The Federal Government can regulate State disclosures of motor vehicle information into the stream of interstate commerce In Reno v. Condon, ***Footnote79: 120 S. Ct. 666, 2000 U.S. LEXIS 503 (Jan. 12, 2000). The Fourth Circuit case was the first of four decisions issued by the Courts of Appeals on the constitutionality of the DPPA; two decisions upheld the constitutionality of the DPPA, two held it to be unconstitutional. See, Condon v. Reno, 155 F.3d 453 (4th Cir. 1998) (holding DPPA is unconstitutional); Pryor v. Reno, 171 F.3d 1281 (11th Cir. 1999) (holding DPPA is unconstitutional); Travis v. Reno, 160 F.3d. 1000 (7th Cir. 1998) (upholding DPPA); Oklahoma v. United States, 161 F.3d 1266 (10th Cir. 1998) (upholding DPPA). The DPPA has also been challenged on 1st amendment grounds; however, discussions of 1st amendment challenges are omitted here. See, for example, Travis v. Reno and Oklahoma v. United States.*** the Supreme Court reversed the Fourth Circuit Court of Appeals, rejecting a 10th amendment challenge by the State of South Carolina to the constitutionality of the Driver's Privacy Protection Act of 1994 (DPPA). ***Footnote80: 18 U.S.C.Sec. 2721, et. seq.*** The DPPA provides that State departments of motor vehicles (DMVs) "shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record." ***Footnote81: 18 U.S.C.Sec. 2721(a).*** The Act, designed to restrict public and commercial access to motor vehicle records in order to protect the privacy of licensees, contains a number of exceptions. DMVs, for example, are required to disclose information for certain purposes related to motor vehicle administration. In addition, the DPPA contains 14 exceptions pursuant to which States may elect to disclose DMV records in certain other instances, such as with the consent of the licensee. ***Footnote82: 18 U.S.C.Sec. 2721(b).*** Violation of the DPPA may result in criminal fines and a civil cause of action against a person who knowingly violates the statute. ***Footnote83: 18 U.S.C. Sec. Sec.2723(a) and 2724(a).*** The Fourth Circuit, relying on its interpretation of Printz and New York, concluded that while the DPPA did not require the States to legislate, as was the case in New York, and did not require the State executive to enforce the DPPA against individuals, as was the case in Printz, the DPPA did require that States administer a Federal program applicable only to the States. Therefore, Congress lacked the power to enact DPPA under the Commerce Clause because "rather than enacting a law of general applicability that incidentally applies to the States, Congress passed a law that, for all intents and purposes, applies only to the States. Accordingly, the DPPA is simply not a valid exercise of Congress's Commerce Clause power." ***Footnote84: 155 F.3d 453, 456.*** The Supreme Court, in a unanimous decision, reversed the Fourth Circuit and upheld the constitutionality of the DPPA. The Court concluded that "the DPPA does not require States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of databases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require State officials to assist in the enforcement of Federal statutes regulating private individuals. We accordingly conclude that the DPPA is consistent with the constitutional principles enunciated in New York and Printz." ***Footnote85: Reno v. Condon, 2000 U.S. LEXIS 503 at 17.*** In addition, the Court disagreed with the Fourth Circuit's holding that the DPPA exclusively regulated the States, finding instead that the "DPPA regulates the universe of entities that participate as suppliers to the market for motor vehicle information - the States as initial suppliers of the information in interstate commerce and private resellers or redisclosers of that information in commerce." ***Footnote86: Ibid.*** As a result, the Court did not address the "question whether general applicability is a constitutional requirement for Federal regulation of the States." The 10th amendment challenge to the DPPA did not raise the issue of "purely ministerial" reporting requirements, which was reserved in Printz and could affect many Federal reporting mandates. In addition, the Condon decision did not resolve the question of whether the general applicability of a law is a constitutional requirement for Federal regulation of the States. It is clear from the Court's decision in Condon that there are limits to the extent to which the Court is willing to use the 10th amendment to shield the States from regulation under Federal law. Given the brevity of the Court's decision and its efforts to distinguish Condon from New York and Printz, however, the scope of the protections afforded to the States by the 10th amendment remains unclear. * Other Tenth amendment challenges since Printz Since Printz, in addition to the DPPA cases discussed above, both States and private parties have used the 10th amendment to challenge the constitutionality of a number of Federal statutes. In one case, a court even raised the issue on its own, although it subsequently concluded that the issue had been waived. A sample of the cases that have reached the Courts of Appeals demonstrate the wide range of Federal activities being challenged on 10th amendment grounds, albeit unsuccessfully, since the Printz decision in June 1997. Unsuccessful Tenth amendment challenges * The Lautenberg Amendment ***Footnote87: 18 U.S.C.Sec. 922(g).*** was unsuccessfully challenged by a defendant convicted of possessing a gun in interstate commerce, alleging that it unconstitutionally interfered with the power of State courts to implement State domestic relations law. ***Footnote88: United States v. Wilson, 159 F.3d 280, 287-288 (7th Cir. 1998).*** In another unsuccessful challenge, the Fraternal Order of Police argued that the Amendment, which contains no special exemption for police officers, violated the 10th amendment because it interfered with the ability of State law enforcement agencies to arm those officers who had been convicted of domestic violence misdemeanors. ***Footnote89: Fraternal Order of Police v. United States, 173 F.3d 898 (DC Cir. 1999), cert. denied 120 S. Ct. 324, 145 L. ed. 2d. 253 (1999).*** * A provision of the Foreign Trade Zones Act ***Footnote90: 19 U.S.C.Sec. 81o(e).*** was unsuccessfully challenged by a group of local school districts that alleged that the Act's exemption of designated foreign trade zones from State and local taxes was a violation of the 10th amendment. ***Footnote91: Deer Park Independent School District v. Harris County Appraisal District, 132 F.3d 1095 (5th Cir. 1998).*** * Massachusetts unsuccessfully used the 10th amendment to allege that a Federal court lacked the constitutional authority to enjoin a State law it had determined to be in conflict with the Endangered Species Act. ***Footnote92: 16 U.S.C.Sec. 1531, et seq.*** While acknowledging that the Federal courts are bound by the 10th amendment, the Court of Appeals rejected the claim. ***Footnote93: Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1998).*** * The Federal Labor Standards Act ***Footnote94: 29 U.S.C. Sec. Sec.201, et. seq.*** was challenged as unconstitutional by Anne Arundel County, Maryland. The Fourth Circuit declined to find the Act unconstitutional because the Supreme Court had upheld the constitutionality of the Act in the 1985 case of Garcia v. San Antonio Metro Transit Authority, ***Footnote95: 469 U.S. 528 (1985).*** and had not explicitly overruled that decision in Printz. ***Footnote96: West v. Anne Arundel County, 137 F.3d 752 (4th Cir. 1998).*** * A defendant in a joint civil suit brought by the United States and Connecticut unsuccessfully challenged the constitutionality of the lawsuit as a violation of 10th amendment dual sovereignty principles. The Court reasoned that Connecticut's participation in the suit was voluntary and therefore not in violation of the 10th amendment. ***Footnote97: United States v. Vazquez, 145 F.3d 74 (2nd Cir. 1998).*** Tenth amendment issues raised but not resolved * A provision of the Telecommunications Act of 1996 governing the placement of wireless communications facilities ***Footnote98: 42 U.S.C.Sec. 704(c)(7)(b).*** was challenged by the City of Virginia Beach as an unconstitutional violation of the 10th amendment because it interfered with local zoning authority. The Court of Appeals did not reach the constitutional question, finding for the city on statutory grounds. * The Second Circuit raised the 10th amendment issue itself regarding a provision of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). ***Footnote99: 42 U.S.C.Sec. 9658.*** The Court noted that the provision "appears to purport to change state law and is therefore of questionable constitutionality." ***Footnote100: ABB Industrial Systems v. Prime Technology Inc., 120 F.3d 351, 360 n. 5 (2nd Cir. 1997).*** The Court did not address the issue, however, concluding that it had not been raised on appeal and had therefore been waived. Unfunded Federal mandates * State and local governments demand reform While State and local governments are frequently critical of Federal mandates, that criticism customarily becomes more vocal when the mandate imposed by the Federal Government is not accompanied by Federal funding sufficient to implement the mandate. By the early 1990s, these critics had become increasingly vocal. On October 27, 1993, for example, State and local officials from across the country, including representatives from the National Conference of Mayors, the National Association of Counties, the National League of Cities, the National Conference of State Legislatures, and the National Governors Association, came to Washington, D.C., and declared the day "National Unfunded Mandates Day" in an effort to draw public and congressional attention to the burdens that unfunded mandates were imposing on State and local governments. ***Footnote101: Theresa A. Gullo and Janet M. Kelly, "Federal Unfunded Mandate Reform: A First Year Retrospective," Public Administration Review (September/October 1998) pp. 379, 380.*** Congress subsequently held hearings on the issue, and heard State and local officials complain of the burdens that unfunded mandates were imposing on their governments. The 103rd Congress, however, did not pass unfunded-mandate legislation, despite bipartisan support. Unfunded mandates received additional attention when the issue was included in the Republican "Contract with America" for the 1994 congressional elections. Following their victory in the 1994 elections, the "Unfunded Mandate Reform Act of 1995" (UMRA) was given the symbolic honor of being the first bill introduced in the Senate at the opening of the 104th Congress (and the fifth bill introduced in the House of Representatives). Hearings were again held on the issue; State and local officials again complained of the burdens imposed by unfunded mandates. The mayor of Columbus, Ohio, explained the problem this way: "Others have called [unfunded Federal mandates] spending without representation. Across this country, mayors and city councils and county commissioners have no vote on whether these mandated spending programs are appropriate for our cities. Yet, we are forced to cut other budget items or raise taxes or utility bills to pay for them because we must balance our budget at our level. ***Footnote102: Report of the Committee on Governmental Affairs, United States Senate, "Unfunded Mandate Reform Act of 1995" (January 11, 1995) p. 2 (quoting Mayor Greg Lashutka of Columbus, Ohio) [hereafter, Senate Governmental Affairs Report].*** The mayor of Philadelphia was perhaps even more direct: "What is happening is we are getting killed. In most instances, we can't raise taxes. Many townships are at the virtual legal cap that their State government puts on them, or in my case in Philadelphia, I took over a city that had a $500 million cumulative deficit that had raised four basic taxes 19 times in the 11 years prior to my becoming mayor. We have driven out 30 percent of our tax base in that time. I can't raise taxes, not because I want to get re-elected or because it is politically feasible to say that, but because that would destroy what is left of our tax base, and our base isn't good enough .... So when you pass a mandate down to us and we have to pay for it, the police force goes down, the firefighting force goes down. Recreation departments are in disrepair. Our [recreation] centers are in disrepair because our capital budget is being sopped up by Federal mandates, by the need to pay for Federal mandates." ***Footnote103: Ibid., pp. 2-3 (quoting then-Mayor Edward Rendell of Philadelphia, Pennsylvania).*** While not present at the hearings, then-Governor Fife Symington of Arizona coupled State and local concerns over Federal mandates with a simmering resentment at perceived Federal interference with State and local affairs. In a statement that the Goldwater Institute characterized as "like a complaint to King George III," Symington declared, "the [S]tate and local governments around this [N]ation are losing their power to better the lives of our own people. The most vital decisions about our futures as [S]tates are being made for us by far-off unelected bureaucrats and handed down like summary orders from distant gods." ***Footnote104: Douglas Munro, "Summary Orders from Distant Gods: The Unfinished Agenda Following the Unfunded Mandates Reform Act of 1995," Issue Analysis series (Phoenix, AZ: The Goldwater Institute, February 1995) p. 1.*** During this period, Congress received a number of reports addressing the problem facing State and local governments. The Advisory Commission on Intergovernmental Relations issued detailed recommendations for Federal mandate relief. ***Footnote105: Advisory Commission on Intergovernmental Relations, "Federal Mandate Relief for State, Local, and Tribal Governments" (January 1995).*** Another report, produced by Price Waterhouse for the National Conference of Mayors, estimated that the cost of unfunded mandates for the period from 1994 to 1998 would total nearly $54 billion for cities alone. ***Footnote106: Report of the Committee on Rules, United States House of Representatives, "Unfunded Mandate Reform Act of 1995" (January 13, 1995) pp. 4-5.*** According to the Senate Report that accompanied UMRA, environmental mandates "headed the list of areas that State and local officials have claimed to be the most burdensome." ***Footnote107: Senate Governmental Affairs Report, supra note 99, p. 6.*** Other Federal requirements that State and local officials cited as burdensome and costly included: "compliance with the Americans with Disabilities Act and the Motor Voter Registration Act; complying with the administrative requirements that go with implementing many Federal programs; and meeting Federal criminal justice and educational program requirements." ***Footnote108: Ibid., pp. 6-7.*** The cost of unfunded mandates to State and local governments was not the only issue before Congress as it considered UMRA; the need for cooperation among the various levels of government was also a consideration. As the Senate committee report noted: "What is lost in the debate is the need for all levels of government to work together in a constructive fashion to provide the best possible delivery of services to the American people in the most cost-effective fashion." The report went on to state: State and local officials emphasized in the Committee's hearings ... that over the last decade the Federal Government has not treated them as partners in the providing of effective governmental services to the American people, but rather as agents or extensions of the Federal bureaucracy. In their view, this lack of coordination and cooperation has not only affected the provision of services at a local level but also carries with it the penalty of high costs, costs that they pass on to local citizens. ***Footnote109: Ibid., p. 4.*** * Requirements of the Unfunded Mandate Reform Act The 104th Congress passed UMRA and President Clinton signed it into law on March 22, 1995. ***Footnote110: Pub. L. No. 104-4 (1995).*** UMRA does not prohibit Congress from enacting unfunded mandates. Instead, UMRA seeks to provide Congress with information about the cost of unfunded mandates in proposed legislation and provide a procedural mechanism for striking unfunded mandates from legislation if they would impose an annual direct burden of $50 million or more on State, local, or tribal governments. ***Footnote111: The monetary caps are in 1996 dollars and are adjusted annually for inflation.*** UMRA requires the Congressional Budget Office (CBO) to estimate, with certain exceptions, the cost of unfunded mandates in proposed legislation. CBO is required to make a detailed report on any covered bill that it estimates would result in an aggregate annual direct cost of $50 million or more on State, local, or tribal governments, or $100 million or more in aggregate annual direct cost on the private sector. With certain exceptions, a parliamentary point of order can be raised against bills that are not scored by the CBO or bills that impose unfunded intergovernmental mandates above the $50 million threshold (mandates on the private sector currently are not subject to a point of order). In the House, if a Member raises a point of order, the entire House must vote on whether to consider the entire bill regardless of whether there is a violation. "In the Senate, if a point of order is raised and sustained, the bill is essentially defeated." ***Footnote112: Congressional Budget Office, "An Assessment of the Unfunded Mandates Reform Act in 1997" (February 1998) at box 1.*** In addition, Title II of UMRA requires that Federal agencies assess the effects of new regulations on State, local, and tribal governments and the private sector to minimize burdens, when possible. * Post-Unfunded Mandate Reform Act developments The passage of UMRA, while a positive development, has not solved the unfunded mandate issue, particularly as it relates to State and local courts and justice agencies. Information reporting requirements, for example, may not meet the threshold of $50 million in direct costs that is required to trigger the procedural protections of UMRA. Another drawback is that UMRA defines a "mandate" narrowly to include only that category that directly requires the compliance of the criminal justice agency, excluding mandates that are tied to Federal grant programs from UMRA's protections. Of course, UMRA is only a means of raising the unfunded mandates issue as Congress considers a particular piece of legislation. It does not prevent Congress, if it is so inclined, from imposing mandates. UMRA, while beneficial, is not the answer to the mandate issue. As one commentator has noted, "Relying solely on [UMRA] to protect State and local governments from onerous and costly Federal mandates is expecting too much. State and local officials will need to remain vigilant in identifying impacts in proposed and final Federal legislation." ***Footnote113: Mary Kay Falconer and Francis Berry, "Federal Mandates: Getting Beyond the Rhetoric," Spectrum (Spring 1995) p. 21.*** Toward that end and recognizing that UMRA does not actually prevent unfunded mandates from being imposed on the States, the Council of State Governments created a "Federalism Index" designed to "inform States about federalism activities in all three branches of the Federal Government." ***Footnote114: Bert Waisanen, "A Watchdog for the States," State Government News (March 1997) p. 12.*** The Federalism Index relies on information generated by a number of sources, including the CBO and agency estimates required by UMRA to track: (1) statutes enacted by Congress containing unfunded mandates or preemption provisions; (2) finalized Federal regulations having a serious impact on State economies; (3) Supreme Court federalism cases; and (4) pending bills or amendments that are costly to State and local governments. ***Footnote115: Ibid., p. 13.*** In addition, the National Conference of State Legislatures has called upon Congress to strengthen Title II of UMRA, which addresses rules by Federal agencies, accusing the agencies of "ignoring the spirit of [UMRA] and exploiting loose language in the text of Title II ... to avoid any change in their behavior." ***Footnote116: National Conference of State Legislatures, "Mandate Watch," The States' Advocate (April 1998) p. 2.*** In Congress, however, the focus has shifted to unfunded mandates on the private sector. On February 10, 1999, the House, by a bipartisan vote of 274-149, passed H.R. 350, "The Mandates Information Act of 1999." This bill would strengthen UMRA - which currently requires only that the CBO score mandates on the private sector in excess of $100 million without subjecting such directives to a point of order - by allowing points of order against private sector mandates, as well as the intergovernmental mandates. As of April 2000, the measure was before the Senate. The House passed a similar measure during the 105th Congress; however, the Senate did not act. Opponents of the Mandates Information Act argued that the bill would make it easier to defeat health, environmental, and labor legislation. Supporters argued that neither the "Mandates Information Act of 1999" nor UMRA would prevent Congress from enacting an unfunded mandate if it were so inclined. Instead, both measures are designed to ensure that Congress is informed about unfunded mandates before it, and that Members be required to go on record in support of such mandates so that the voters can hold them accountable. V. National Task Force findings Based on its discussions of issues and concerns related to Federal legislation that imposes reporting requirements and expectations on the criminal justice system, the Task Force adopted the following findings: Finding 1: The National Task Force finds that, in recent years, the Federal Government's need for information from State and local courts and justice agencies has increased in terms of the quantity and the complexity of data required and in terms of the speed with which information must be provided. Commentary: The Federal Government's need for information from State and local courts and justice agencies has increased in recent years to support important Federal policy initiatives. As illustrated by the statutes and regulations cited in section III of this report, the Federal Government customarily seeks information for countless Federal initiatives, ranging from gun control to adoption and welfare reform. The information needs of the Federal Government have increased not only in number, but also in complexity. Early reporting requirements tended to "harvest" event-driven facts, such as arrests and dispositions. Recent Federal legislation, however, requires interpretation, as well as event reporting. The Lautenberg Amendment, for example, requires courts to make determinations about whether an offender was represented by counsel or "intelligently" waived the right of representation. ***Footnote117: Pub. L. 104-208, codified at 18 U.S.C.Sec. 922(g).*** The same law also requires a determination of whether there was a jury trial, if the offender was entitled to one, or whether the right was intelligently waived. Finally, there is an increasing premium on the speed with which information is made available. Under the Brady law, for example, background checks about individuals seeking to purchase firearms are completed almost instantly, or in some cases, in days. ***Footnote118: Pub. L. 103-159, 107 Stat. 1536, codified at 18 U.S.C.Sec. 922.*** If information about potential disqualifiers, such as felony convictions, is not made available by the courts and the State repositories promptly, an improper firearms sale may be authorized. Of course, these circumstances are not unique to the Federal Government. State governments, as well as courts and criminal justice agencies themselves, are increasingly using civil and criminal justice information to improve the efficiency and the effectiveness of the justice system. In Colorado, State officials attribute increased demands for timely, complete and accurate information by the State judiciary to the judiciary's increased understanding of what is technologically possible as a result of the judiciary's experiences with Federal reporting requirements. Finding 2: The National Task Force finds that information needs arising from the implementation of Federal legislation increasingly require both civil and criminal justice information. Commentary: Traditionally, Federal information reporting requirements focused primarily on criminal justice information, such as arrest and disposition reporting. Federal financial support was tailored to support the reporting of the required criminal justice information. Information from civil justice records was typically not required and, as a result, there was a scarcity of Federal financial support for the automation of civil justice records. In recent years, there has been a considerable increase in reporting requirements drawing on civil justice information. Implementation of provisions of the 1994 Violent Crime Control and Law Enforcement Act that restrict the ability of those subject to domestic abuse protection orders to purchase firearms, for example, requires information from protection orders, which most frequently arise from civil court petitions. ***Footnote119: Pub. L. 103-322, amending 28 U.S.C.Sec. 534.*** In another example, it will be necessary to track civil court proceedings involving covered foster care and adoption proceedings in order to monitor compliance with the timelines mandated by the Adoption and Safe Families Act of 1997. ***Footnote120: Pub. L. 105-89.*** Implementing these civil reporting requirements is difficult for many courts for a variety of reasons. First, in most courts, the automation of civil justice information lags behind automation of criminal justice information. Second, civil justice information has not always been reported, including identifiers, such as a date of birth or social security number. This information, of course, is necessary to match against other records. Finding 3: The National Task Force finds that, customarily, many State and local courts have not been actively involved in implementing Federal information initiatives and have not received Federal assistance to meet the information demands arising from the implementation of Federal legislation. Commentary: Unlike executive branch agencies, State and local courts customarily have not been involved in shaping the information reporting requirements that arise from Federal legislation. Furthermore, courts frequently lack the infrastructure to respond to information reporting requirements, particularly where these requirements are not directly related to accomplishing the courts' mission. Task Force discussions trace this lack of involvement by State and local courts in the decisionmaking processes and the failure of the courts to participate in a proportionate share of the funding that has accompanied many Federal initiatives to several factors (the weighting of which varies substantially from State to State). Some State and local courts, for example, have traditionally been reluctant to participate in Federal initiatives or accept Federal funds out of concern that such involvement would somehow be interpreted to mean that they were not neutral arbiters of justice. Other courts have sought to participate and obtain funding, but have been unsuccessful due to local political considerations. In other settings, the courts have not been viewed as intended participants or funding recipients of particular Federal initiatives. This lack of involvement led to the creation of information reporting mechanisms that, from the perspective of the courts at least, are less than optimal. Law enforcement systems, for example, customarily feature the arrest as the key event, to which all subsequent data must be tied. The arrest event, however, is not featured in most court systems, creating the potential for mismatching and other problems when it becomes necessary to tie final court dispositions to the original arrest. Despite the traditional lack of funding, infrastructure and involvement in the decisionmaking process, the courts increasingly recognize the importance of information for the courts' own internal needs, as well as for the needs of outside information users, such as the Federal Government and other branches of the State governments. The courts view the Crime Identification Technology Act of 1998 (CITA) as a positive development. ***Footnote121: Pub. L. No. 105-251, 112 Stat. 1871.*** CITA authorizes $1.25 billion over 5 years for grants to the States to upgrade criminal justice and criminal history record systems, improve criminal justice identification, promote the compatibility and integration of national, State and local systems for a variety of purposes, and to capture information for statistical and research purposes to improve the administration of criminal justice. ***Footnote122: Pub. L. No. 105-251,Sec.¤ 102(a), (e).*** In doing so, CITA recognizes court-based criminal justice systems as a category of system eligible for CITA funds and requires States to provide "an assurance that the individuals who have developed the grant application took into consideration the needs of all branches of the State Government and specifically sought the advice of the chief of the highest court of the State with respect to the application." ***Footnote123: Pub. L. 105-251Sec. 102(c)(2)(D).*** Federal initiatives, such as CITA, that include the courts in technological initiatives and information system planning, are seen as important trends in helping to ensure that the courts are able to play a role in the development and implementation of new information reporting requirements. These initiatives also help courts to modernize their own information systems. Finding 4: The National Task Force finds that the recognition of the courts as a partner in the design and implementation of criminal justice information systems and in meeting the information needs arising from Federal legislation is a positive and effective approach. Commentary: Some recent Federal initiatives require that States establish advisory bodies or task forces comprised of representatives of courts and criminal justice agencies to develop implementation plans. The Task Force finds that these bodies are effective when the approach taken is truly collegial in nature and when there is determined political leadership supporting a collegial approach. The Task Force notes with approval that the courts have become active participants in some States, such as Colorado, through involvement and leadership from the Chief Justice, key legislators, judges, and State court administrators. Similarly, court officials in Maryland have become active participants in the efforts in that State to modernize and integrate their information systems. Finding 5: The National Task Force finds that the demands imposed by federally mandated reporting requirements are exacerbated when the requirements do not build upon existing information practices. Commentary: Task Force deliberations highlighted the fact that federally mandated reporting requirements are more difficult to implement when they significantly depart from preexisting information collection practices. For example, members of the Task Force reported that courts encounter significant difficulty in providing information necessary to implement the Lautenberg Amendment, such as, (1) whether an offender was represented by counsel or intelligently waived the right of representation, (2) whether there was an "intimate partner" relationship between the offender and the victim, and (3) whether there was a jury trial, if the offender was entitled to one, or the right was intelligently waived. These data elements, which require either a court finding or some value judgment as to "intelligent waiver" or "intimacy," were not traditionally tracked by court clerks and administrators; therefore, making these assessments had proven more demanding than traditional, fact-based reporting requirements, such as disposition information. Similarly, State repositories have reported difficulties in satisfying Immigration and Naturalization Service requirements that justice agencies report the arrest of aliens. Traditionally, the FBI and law enforcement officials collected the place of birth of arrestees on fingerprint cards, but not their self-reported citizenship status. Complying with the INS requirements forced a redesign of the fingerprint card and raised issues regarding the utility of self-reported citizenship information obtained at the time of arrest. It is the sense of the Task Force that this is part of a growing trend. Task Force members cited examples ranging from welfare reform to initiatives by the Departments of Transportation and Health and Human Services, which increasingly require State and local agencies to collect information that had not previously been collected or tracked. The Task Force recognizes that courts and law enforcement agencies are frequently in a unique position to capture information. The courts, for example, interact with individuals in controlled situations, which facilitate obtaining a considerable amount of information. Collection of new information, however, frequently requires new resources and the implementation of new systems and protocols. Finding 6: The National Task Force finds that some important Federal justice assistance programs have been structured in such a way that they have effectively excluded the courts from full participation. Commentary: The Five Percent Set-Aside Program, which requires States to set aside 5 percent of their Edward Byrne Memorial State and Local Law Enforcement Assistance Program formula grant funds for the improvement of criminal justice records, is a prominent example. The definition of "local unit of government" used to determine eligibility for pass-through funding has been interpreted to exclude most courts because they are not considered a unit of city or county government (municipal courts, as a part of city or county government, are an exception). As another example, courts are expressly excluded from receiving funds for child support services, except in very particular circumstances. Other examples of the exclusion of the courts from funding initiatives can be found in the Adoption and Safe Families Act of 1997. Predictably, these restrictions limit the ability of the courts to develop the internal systems they need to meet information requirements arising from Federal legislation. Finding 7: The National Task Force finds that the response to information needs arising from Federal legislation has been most effective in those States that have adopted a statewide strategy and approach that includes the courts. Commentary: Providing the information necessary to support Federal information needs that arise from Federal legislation and initiatives can involve numerous State and local entities, ranging from State social services agencies to the courts and criminal justice agencies. Given the wide range of State and local entities that are sometimes involved in complying with Federal information requirements, the Task Force believes that the most effective means of satisfying these requirements is through development and implementation of statewide strategies. Successful development and implementation of these statewide strategies depends upon the involvement of all of the entities, including the courts and criminal justice agencies. Colorado, for example, has created an integrated criminal justice information system that standardizes data and communications technology throughout its criminal justice community, including State-funded courts. This integrated system is governed by an Executive Policy Board, comprised of the Executive Directors of the State Departments of Public Safety, Corrections, and Human Services, as well as the State Court Administrator and a representative of the Colorado District Attorneys Council. Under the guidance of this inclusive coordinating body, Colorado courts and agencies have "substantially revised" their operations, forms, and systems to streamline operations. As the statewide system was being developed and the streamlining of operations was underway, system planners were able to integrate Federal information requirements into the new system. Finding 8: The National Task Force finds that disposition reporting requirements impose significant demands on courts, which, to be met effectively, require greater resources than currently available to many courts, as well as an effective statewide approach to meeting disposition reporting requirements. Commentary: Disposition reporting is a cornerstone of the criminal history record information system. Federal regulations require that covered criminal history records include, "to the maximum extent feasible," dispositions for all arrests included in an individual's criminal history record, within 120 days after the disposition has occurred. ***Footnote124: 28 C.F.R.Sec. 20.37 (1999).*** Disposition reporting depends upon the State courts, which handle the vast majority of criminal cases in the United States - some 13 million in 1996. ***Footnote125: See, supra note 8 and accompanying text.*** The Task Force finds that some courts have had trouble meeting their disposition reporting demands. In some cases, these difficulties have resulted from a lack of financial resources for staff or new technology, which would ease the courts' reporting burden. In other cases, these difficulties have resulted from the lack of a coordinated statewide disposition reporting plan designed to ensure that all of the appropriate dispositions are reported to the State criminal history repositories in a prompt and efficient manner. VI. National Task Force recommendations Based on the findings set out in section V, the Task Force approved the following recommendations: Recommendation 1: The National Task Force recommends and encourages the development and implementation of integrated information systems because these systems, among other benefits, enhance the capacity to comply with information needs arising from the implementation of Federal legislation. Commentary: In recent years, there has been an important and appropriate emphasis on the development of integrated information systems. A recently completed report by the National Task Force on Court Automation and Integration, sponsored by BJS and coordinated by SEARCH, the National Center for State Courts, the National Association for Court Management, and the Conference of State Court Administrators, emphasizes the importance of establishing integrated information systems. That National Task Force Report defines integration as "the electronic sharing of information by two or more distinct justice entities within a system. The degree to which information systems are considered 'integrated' depends on who participates, what information is shared or exchanged, and how data are shared or exchanged within the system." ***Footnote126: Court Automation and Integration Task Force Report, p. 2, supra note 5. For a more detailed explanation of the definition of integration, see, ibid., pp. 2-4.*** These systems not only improve the capacity to meet information needs arising from the implementation of Federal legislation, but also facilitate an integrated and shared reporting responsibility among components of the criminal justice system, as opposed to focusing reporting demands on a particular component of the system. In addition, integration can help all courts and justice agencies involved in the justice process achieve their mission in a more effective and efficient way through enhanced decisionmaking. The continued development of integrated criminal justice information systems and their enhanced ability to interface with new Federal information systems holds great promise for improving information reporting capabilities and reducing the demands associated with information reporting. Integration efforts should focus not only on criminal history record information, but also on other criminal justice information and civil justice information. Frequently, the courts obtain and use criminal justice information arising from a variety of judicial actions and orders. Courts, for example, issue orders requiring electronic monitoring or restricting child sex offenders from places frequented by children. Currently, these orders are not always readily available to law enforcement. In addition, as noted earlier, there is also a growing demand for access to civil justice information, such as protective orders, which could be more readily available if included in integrated systems. Recommendation 2: The National Task Force recommends that States include all affected parties, including the courts, in the development and implementation of justice information systems and in the implementation of information reporting requirements that arise from Federal legislation. Commentary: The Task Force believes that the most effective means of creating integrated justice information systems - as well as the most effective means of meeting Federal information needs arising from Federal legislation - is through a collegial approach, which includes the opportunity for input and participation from representatives of all affected courts and agencies. Colorado, as discussed in the commentary to Task Force Finding 7, has had success in meeting Federal information reporting requirements and in integrating its criminal justice information systems, through such a collegial, statewide approach for crafting strategies and implementing new systems. ***Footnote127: Appendix 2 describes how the court systems in three selected States - Colorado, Florida, and Louisiana - have dealt with the issues surrounding the implementation of Federal reporting requirements.*** The Task Force recognizes that the situation in every State is different, and what has worked for States such as Colorado may not necessarily work in another State. The Task Force believes, however, that the underlying principle at work in Colorado - an integrated statewide strategy devised with the input of all of the interested parties - is a strategy that could benefit all of the States as they work to comply with Federal information-reporting requirements. Recommendation 3: The National Task Force recommends that courts and justice agencies explore and provide for the use of civil justice information for criminal justice purposes. Commentary: As noted in the Task Force's findings, reporting requirements drawing on civil justice information have grown. This increasing use of civil justice information is a recognition that some civil justice information, including information from family courts, is useful to criminal justice agencies, particularly in instances in which the courts have issued restraining orders, home confinement orders, civil commitment orders, or other civil orders that implicate criminal justice concerns. The Task Force notes that additional groundwork may be necessary, such as the creation of a common "data dictionary," to facilitate the use of civil justice information. The Task Force noted that the increased use of civil and criminal justice information should lead to a reevaluation of the way in which most courts and justice agencies organize their records. The Task Force noted that the program begun by the Conference of State Court Administrators and the National Association for Court Management to develop national functional standards for automated trial court management systems should provide a critical foundation for the exchange of information between civil and criminal dockets and with State and national databases. Task Force members observed that the advances in livescan and automated fingerprint information system technology will accelerate this trend. Many Task Force members believe that this technology will fuel a change in court recordkeeping practices from the current case or arrest cycle number system to a system that uses the individual, rather than a case number, as the basis for the recordkeeping system. If so, this could create a mechanism for the compilation of comprehensive records of an individual's involvement with the justice system, be it through the system's criminal or civil component. Recommendation 4: The National Task Force recommends that in order to increase the efficiency and effectiveness of State and local courts and justice agencies, these organizations should work with Congress and relevant Federal departments and agencies to: a) identify and evaluate the purposes of and need for imposing new reporting requirements and determine what information resources are currently available; b) define, with specificity, the information to be reported while retaining flexibility to take advantage of new technologies; c) identify collateral consequences of imposing these requirements; d) ensure that appropriate Federal financial resources reach all of the entities that are involved in fulfilling the information needs arising from Federal legislation, particularly the courts; and e) evaluate whether proposed reporting requirements create conflicting or ambiguous demands on the State and local justice agencies required to implement them. Commentary: The National Task Force urges the Congress and State and local courts and justice agencies to work together to identify all significant reporting requirements or expectations proposed in Federal legislation; to clearly identify which parts of the criminal justice system are being asked to participate in a reporting requirement or request; and to define the information elements that are involved in any information reporting requirement or request, prior to enacting a mandate. Consultations between Congress, relevant Federal departments and agencies, and representatives of the State and local courts and justice agencies that will be charged with carrying out the proposed mandates will promote greater efficiency and cost-effectiveness in the implementation of mandates. The National Task Force believes that such consultations will not only help apprise the Congress of the best and most efficient ways to collect the desired information, but will also help remove any ambiguities over what information is required and who is to provide it. Obviously, vagueness creates uncertainty at the State and local levels; has the potential to create unnecessary costs for erroneous or incomplete reporting; and, of course, has the potential for failing to provide an intended or effective response to the Federal legislation. The National Task Force recommendation that Congress, relevant Federal departments and agencies, and State and local courts and justice agencies work together to evaluate the cost to State and local courts and justice agencies is based on the same rationale as the Unfunded Mandate Reform Act (UMRA). ***Footnote128: Pub. L. No. 104-4 (1995).*** The more information that Congress has about the impact of the information reporting requirements imposed on State and local courts and justice agencies, the easier it will be for Congress to make an informed decision as to whether to proceed with the mandate and what form the mandate should take. UMRA is rarely applicable to information needs arising from the implementation of Federal legislation because these needs are infrequently likely to meet the $50 million per year in direct costs required to trigger UMRA, or the reporting requirements that are tied to State eligibility for Federal grants, and are therefore outside of the UMRA definition of a "mandate." While it is possible that one mandate will not cost much to implement, the cumulative demand of mandates on the courts and justice agencies can be substantial. Recommendation 5: Information needs arising from the implementation of Federal legislation or expectations should, where possible, leave States with substantial discretion to determine the manner in which the State will comply with the reporting requirement or expectation. Commentary: The National Task Force recognizes the importance for standardized reporting of information; however, the National Task Force recommends that Congress, to the greatest extent possible, set goals for the States, allowing the State and local courts and justice agencies to determine how they can best meet that goal. When establishing reporting responsibilities, the National Task Force recommends that Congress and relevant Federal departments and agencies tailor those requirements to track existing State data collection and usage practices to maximize the efficiency and effectiveness with which State and local courts and justice agencies will be able meet those information needs. To the extent that Federal information reporting requirements and expectations exceed preexisting local practice, Federal financial support should be made available to facilitate the collection and processing of the information requested. The National Task Force recognizes that there is a degree of tension between this recommendation and Recommendation 4, which calls for a careful delineation of data elements to be reported and which agencies are to report the information. The goal of the National Task Force is to promote a cooperative relationship between the Federal Government and State and local courts and justice agencies. To assist the State and local courts and justice agencies in providing the information required, the National Task Force believes that giving State and local entities flexibility is essential, but that at the same time, Congress and Federal departments and agencies must provide as much guidance as possible to assist State and local courts and justice agencies to provide the type of information best suited to meet Federal information needs. Recommendation 6: The National Task Force recommends that State and local courts and justice agencies work together and with Congress and the appropriate Federal departments and agencies to design and implement necessary reporting mechanisms. Commentary: The National Task Force believes that State and local courts and justice agencies must be willing to work with one another and with the Federal Government to identify and resolve mandate implementation problems, and to assist the Federal Government in its efforts to address national problems. Specifically, State and local courts, repositories, law enforcement agencies, correctional agencies and prosecutors should work so that standards and implementation issues can be resolved in a collegial manner. The National Task Force believes that consultation with all relevant parties, particularly those State and local courts or justice agencies that would be responsible for meeting the information requirements, would maximize the efficient and effective collection of data to meet national information needs. Recommendation 7: The National Task Force recommends that Congress provide funding to State and local courts and justice agencies sufficient to implement Federal information reporting requirements and expectations. Commentary: In order to ensure the effective implementation of Federal information requirements and expectations, the Federal Government should provide States with sufficient financial support, both in terms of the initiation costs of a new information reporting requirement, and in terms of recurring costs necessary to meet Federal information needs. State and local courts and justice agencies do not currently receive Federal funding sufficient to meet the costs of meeting the information demands arising from Federal legislation. In response to Task Force inquiries, for example, Louisiana officials reported substantial shortfalls, especially arising from startup costs. In addition, Louisiana reported that the annual operating costs of the Louisiana Protective Order Registry (LOPR), which amount to more than $860,000 per year, are funded without direct Federal support. ***Footnote129: See table 3, Annual Recurring Costs, in appendix 2.*** Recommendation 8: The National Task Force recommends the establishment of a catalogue of Federal programs and initiatives that impose information reporting requirements to be met by State and local courts and justice agencies. Commentary: As State and local courts and justice agencies continue to work to automate their records and update their information systems and technology, it is the sense of the Task Force that State and local courts and justice agencies would find a catalogue of Federal information needs and expectations to be beneficial as they design new systems. Such a comprehensive catalogue, with periodic updates, would allow State and local courts and justice agencies to ensure that they are complying with all existing information reporting requirements imposed by Federal legislation or regulation. The information-reporting requirements identified by the National Task Force in section III of this report are examples of the types of provisions that might be included in such a catalogue. One way to establish such a catalogue would be for the Congress to establish a requirement that the Office of Management and Budget initiate such a catalogue and update it on an annual basis. Appendix 1: Task Force participants Chairman: Honorable Robert M. Bell, Chief Judge, Court of Appeals of Maryland Member Jerry L. Benedict, Director, Office of Court Administration, Texas Kenneth E. Bischoff, Director, Administrative Services, Alaska Department of Public Safety Richard C. Carlson, Deputy Director of Administration, Arizona Department of Corrections Dr. Hugh M. Collins, Judicial Administrator, Supreme Court of Louisiana Sue K. Dosal, State Court Administrator, Supreme Court of Minnesota Sheila Gonzalez, Executive Officer and Clerk, Ventura County Superior Court, California Dr. Robert C. Harrall, State Court Administrator, Supreme Court of Rhode Island Jean Itzin*, Planning and Policy Administrator, Strategic Planning and Systems Integrity Section, Criminal Justice Information Services, Florida Department of Law Enforcement Barbara C. King**, Director, Information Technology and Communications Division, Department of Public Safety and Correctional Services, Maryland J. Denis Moran, Director of State Courts, Wisconsin Edward L. Papps***, Director of Computer Services, 16th District Judicial Court of Missouri Thomas Ralston, Trial Court Administrator, Superior Court of Delaware Theron A. Schnure, Assistant Director, Policy Development and Planning Division, Connecticut Office of Policy and Management Cal Sieg, Unit Chief, Access Integrity Unit, Programs Support Section, Criminal Justice Information Services Division, Federal Bureau of Investigation Alan Slater, Executive Officer, Orange County Superior Court, California Prof. George B. Trubow, Director, Center for Information Technology and Privacy Law, The John Marshall Law School, Chicago, Illinois Richelle "Chell" Uecker,(+) Deputy Judicial District Administrator, Hennepin County District Court, Minnesota Donna M. Uzzell, Director, Criminal Justice Information Services, Florida Department of Law Enforcement Lawrence P. Webster(++), Director, Administrative Office of the Courts, Delaware Robert Wessels, Court Manager, Harris County Criminal Courts at Law, Texas Bureau of Justice Statistics, U.S. Department of Justice Carol G. Kaplan, Chief, Criminal History Improvement Programs, National Center for State Courts Kay Farley, Senior Policy Analyst II, Office of Government Relations Dr. Thomas A. Henderson, Executive Director, Office of Government Relations Edward H. O'Connell, Jr., Senior Counsel SEARCH, The National Consortium for Justice Information and Statistics Sheila J. Barton, Deputy Executive Director Robert R. Belair, General Counsel Gar