The Loopholes in California LiveScan
California LiveScan is the state run system administered by the California Department of Justice for criminal background checks and is available only on workers whose work includes working with children, the elderly and disabled. These include law enforcement agencies, public and private schools, non-profit organizations and in-home supportive care agencies. There is no other statewide criminal check available for employers. All school teachers, public and private, recreational workers and nursing home workers must be LiveScaned.
Church pastors and nursery workers are also eligible to use the program. Most churches use LiveScan if they already use it for their affiliated church school. Organizations who use this program send their applicants who have been conditionally hired pending the background check, to a LiveScan vendor who fingerprints the applicant (the applicant puts their fingerprints on a scanner which electronically scans the fingerprint, hence the name) submits the applicants data online to the state where a statewide criminal check is performed and, if chosen by the organization ordering the report, a nationwide NCIC (FBI files) check is performed. The resulting information is then sent to the participating organization.
This system is one of the best in the in the country, but the purpose of this article is to point out that it does have what I consider to be major flaws that very few people know about. I think that it is very important, especially for parents, to know the systems limitations in hopes that someday the state will tighten the loopholes and more children will be protected.
The LiveScan system places strict limitations on what information is available and how that information is distributed. The criminal history report is sent to the organizations Records Custodian, which may or may not be the person making the hiring decision and in larger organizations it us usually not the same person. The Records custodian is only allowed to tell the person making the hiring decision that the person has passed or failed the LiveScan. They dont even get to know why that person has failed the background check.
SURPRISING FACT # 1. CALIFORNIA LIVE SCAN DOES NOT REPORT ALL CRIMINAL HISTORY The state of California has mandated that only records related to the following categories are revealed by LiveScan: 1. Crimes relating to child abuse or elder abuse 2. Sex Offenders 3. Convictions or incarcerations in the last 10 years as a result of committing: theft, robbery burglary or any felony.
Now, on its face the list above looks pretty good, but lets go over some of the crimes that it doesnt cover and as we go through the list try to think of your childs nanny or her Sunday school teacher engaged in these crimes. Heres a partial list: Assault, Accessory to a crime, Aiding and abetting, Bad check writing, Carrying a gun without a license, Contempt, Domestic Violence, False impersonation, Medicare fraud, Stalking, Drug possession, Indecent exposure, Misdemeanor Prostitution, Lewd conduct, Disorderly conduct, Disturbing the peace, Vandalism, Trespassing, Malicious mischief, Public drunkenness and the list goes on. I dont know about you, but before I would hire someone to work with children I think I would want to know if they are a pot-smoking, bar-fighting drunk-in-public type person. Most people would agree.
SURPRISING FACT # 2. LIVESCAN DOESNT CHECK FOR ANY CIVIL RECORDS. OK maybe now you are thinking that this California LiveScan doesnt cover as much as you thought and you would be correct. It also doesnt cover any civil court rulings against a person such as Restraining orders, Non-molestation orders, Order for Protection and Injunctions (for things such as stalking). You dont think that is important? The Family Violence Prevention Fund estimates that up to three million women are the victims of domestic violence each year and restraining orders are one important way that they can protect themselves.
SURPRISING FACT # 3 LIVESCAN DOES NOT CHECK THE CALIFORNIA SEX OFFENDER REGISTRY (also known as the Megans Law registry). THE PRECEEDING SENTENCE IS NOT A MISPRINT; ITS TRUE! You can verify this by calling the California Department of Justice and asking them. Their number is 916 227-4974. By now you are probably asking yourself, "How in the world can this be true? A state system designed to protect children doesnt even check for drug offenders, wife beaters and sex offenders? That is unconscionable!" Even as I write this I find it hard to believe myself. It doesnt even check the Megans Law list for sex offenders who have moved to California from another state who are required to register.
BUT WAIT; THERES MORE. There are even two more area that LiveScan does not check or report. When it searches criminal records, it only searches records where a person was fingerprinted. For a minor, non-violent crime people are sometimes issued a notice to appear, just like a traffic ticket. People who are arrested in that way are not fingerprinted. I understand that when big cities do things like prostitution sweeps that they sometimes use that method for both the prostitutes and their "clients". Also, if an arrest is found on someones criminal history and there is no corresponding disposition such as a trial verdict, plea agreement or sentencing information, they withhold the information from you. The following quote is off their website: "Unless otherwise authorized by law, where only an arrest record exists but the Department is unable to obtain corresponding disposition information, the Department shall suppress that arrest information and provide the authorized agency with a response that no criminal history information exists."
As a person who has been in the background check business for 13 years and the father of two college age daughters, I would have designed the system very differently to say the least. I certainly would not have designed in holes big enough to drive a truck through and potentially let criminals have access to children. The more I study this information the more I am convinced that the State of California is more interested in protecting the rights of criminals than protecting children and the elderly. In all my dozens of conversations with pastors, school administrators and law enforcement people I have only spoken to one person, who was truly aware of the built-in limitations of the LiveScan system. Most people assume that if it is the state-run system then it must be the best and most complete.
As I was re-researching the data to write this article I also found that it is possible for someone to have their sex offence crime expunged after serving their sentence, but would still be required to be registered as a sex offender. That is one more very convincing reason to check the Megans Law list.
Again, if someone was background checking my daughters teacher, coach, counselor or pastor I would want a more thorough check and I expect better from the State of California on behalf of all children.
THE ALTERNATIVE: Most organizations who use LiveScan have to by state law, but if you have a choice you should consider a private sector background check from a reputable company that gives you all of the criminal information on a county by county basis, checks the civil records, the Megans Law list and records from any other state where a person may have lived.
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Kit Fremin is the owner and founder of Background Check International. Since 1994 BCI has served clients a varied as: the LA Times, Department of Defense, Mars, Inc., the UN, the NTSB and Calvary Chapels nationwide. His website is: www.bcint.com and he can be e-mailed at kit@bcint.com.
