Sharing Promising Practices and Assessing Incentives Could Better Position Justice to Assist States in Providing Records for Background Checks
GAO-12-684: Published: Jul 16, 2012. Publicly Released: Jul 16, 2012.
What GAO Found
From 2004 to 2011, the total number of mental health records that states made available to the National Instant Criminal Background Check System (NICS) increased by approximately 800 percent—from about 126,000 to 1.2 million records—although a variety of challenges limited states’ ability to share such records. This increase largely reflects the efforts of 12 states. However, almost half of all states increased the number of mental health records they made available by fewer than 100 over this same time period. Technological, legal, and other challenges limited the states’ ability to share mental health records. To help address these challenges, the Department of Justice (DOJ) provides assistance to states, such as grants and training, which the 6 states GAO reviewed reported as helpful. DOJ has begun to have states share their promising practices at conferences, but has not distributed such practices nationally. By disseminating practices that states used to overcome barriers to sharing mental health records, DOJ could further assist states efforts.
The states’ overall progress in making unlawful drug use records available to NICS is generally unknown because of how these records are maintained. The vast majority of records made available are criminal records—such as those containing arrests or convictions for possession of a controlled substance—which cannot readily be disaggregated from other records in the databases checked by NICS. Most states are not providing noncriminal records, such as those related to positive drug test results for persons on probation. On May 1, 2012, DOJ data showed that 30 states were not making any noncriminal records available. Four of the 6 states GAO reviewed raised concerns about providing records outside an official court decision. Two states also noted that they did not have centralized databases that would be needed to collect these records. DOJ has issued guidance for providing noncriminal records to NICS.
DOJ has not administered the reward and penalty provisions of the NICS Improvement Amendments Act of 2007 because of limitations in state estimates of the number of records they possess that could be made available to NICS. DOJ officials were unsure if the estimates, as currently collected, could reach the level of precision needed to serve as the basis for implementing the provisions. The 6 states GAO reviewed had mixed views on the extent to which the reward and penalty provisions—if implemented as currently structured—would provide incentives for them to make more records available. DOJ had not obtained the states’ views. Until DOJ establishes a basis for administering these provisions—which could include revising its current methodology for collecting estimates or developing a new basis—and determining the extent to which the current provisions provide incentives to states, the department cannot provide the incentives to states that were envisioned by the act.
Nineteen states have received federal certification of their programs that allow individuals with a precluding mental health adjudication or commitment to seek relief from the associated firearms prohibition. Having such a program is required to receive grants under the 2007 NICS act. Officials from 10 of the 16 states we contacted said that grant eligibility was a strong incentive for developing the program. Reductions in grant funding could affect incentives moving forward.
Why GAO Did This Study
The 2007 Virginia Tech shootings raised questions about how the gunman was able to obtain firearms given his history of mental illness. In the wake of this tragedy, the NICS Improvement Amendments Act of 2007 was enacted to, among other things, provide incentives for states to make more records available for use during firearm-related background checks. GAO was asked to assess the extent to which (1) states have made progress in making mental health records available for use during NICS checks and related challenges, (2) states have made progress in making unlawful drug records available and related challenges, (3) DOJ is administering provisions in the act to reward and penalize states based on the amount of records they provide, and (4) states are providing a means for individuals with a precluding mental health adjudication or commitment to seek relief from the associated federal firearms prohibition. GAO reviewed laws and regulations, analyzed Federal Bureau of Investigation data from 2004 to 2011 on mental health and unlawful drug use records, interviewed officials from a nongeneralizable sample of 6 states (selected because they provided varying numbers of records) to obtain insights on challenges, and interviewed officials from all 16 states that had legislation as of May 2012 that allows individuals to seek relief from their federal firearms prohibition.
What GAO Recommends
GAO recommends that DOJ share promising practices in making mental health records available and assess the effectiveness of rewards and penalties and how to best implement them. DOJ agreed with the results.
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Recommendations for Executive Action
Status: Closed - Implemented
Comments: In July 2012, we found that most states had made limited progress in providing mental health records for use in the National Instant Criminal Background Check System (NICS). Although the total number of mental health records that states made available for firearm background checks increased from about 126,000 records in 2004 to about 1.2 million records in 2011, this increase largely reflected the effort of 12 states. As of October 2011, 17 states and all five U.S. territories had made fewer than 10 records available to the NICS Index. DOJ and state officials identified technological, legal, and other challenges that hinder states' ability to make these records available. DOJ has made several forms of assistance available to help states provide records, including grants, conferences, and training. States reported that hearing about the experiences of other states during regional conferences was helpful in making mental health records available to NICS, but the Department of Justice (DOJ) had not identified promising practices employed by all states or shared this information nationally. We recommended that the Attorney General work with states to identify and disseminate promising state practices so that states in the early phases of their efforts to make mental health records available can address barriers and identify solutions to challenges faced in this effort. DOJ agreed with this recommendation and has taken steps to address it. In response to our recommendation and to requirements in the NICS Improvement Amendments Act of 2007, the Bureau of Justice Statistics (BJS) identified seven states with promising practices and worked with these states to produce summaries of these practices. BJS disseminated the practices on their website, which involve identifying, collecting, maintaining, automating, and transmitting information that determines whether a person is prohibited by federal or state law from possessing or receiving a firearm. According to BJS, several of these practices focus on how to improve reporting of mental health information, while others address how to determine relevant records, how to facilitate broader coordination, or other process improvement efforts. Making such information readily available to states that may still be in the early phases of their efforts to share mental health records should help these states save time, money, and address potential barriers early on. Based on DOJ's actions, we consider this recommendation to be closed as implemented.
Recommendation: To help ensure effective implementation of the NICS Improvement Amendments Act of 2007 (NIAA), and to further assist states in their efforts to make mental health records available for use during NICS background checks, the Attorney General should work with states to identify and disseminate promising state practices nationally so that states in the early phases of their efforts to make such records available can address barriers and identify solutions to challenges faced in this effort.
Agency Affected: Department of Justice
Status: Closed - Implemented
Comments: To help ensure that incentives exist for states to make records available and that DOJ has a sound basis on which to base incentives, we recommended that DOJ determine whether the NIAA reward and penalty provisions were likely to act as incentives and whether DOJ can develop a revised estimate methodology whereby states are able to generate reliable estimates that could serve as the basis for rewards and penalties. To respond to this recommendation, the Bureau of Justice Statistics (BJS) facilitated two group discussions with states. The first set was with a group of National Consortium for Justice Information and Statistics (SEARCH) members, who are current staff of criminal records repositories, at the SEARCH annual meeting in January 2013. A total of 38 states, as well as representatives from the FBI, were represented in these discussions. In focus group meetings, state representatives shared feedback for each category of records currently included on the NIAA records estimates form. States offered recommendations on how some categories could be improved to reflect better estimates and be used to measure improvements in states' record reporting. For example, regarding mental health records, states recommended that DOJ provide more detailed instructions in the survey in terms of the unit of analysis (e.g., people, events, or legal orders/findings) and to provide guidance on legal privacy restrictions and any exceptions that related to background check reporting. States also shared their views on rewards and penalties with DOJ. States generally concluded that the penalty was not sufficiently motivational given the laborious and costly process for completing estimates. Further, all states agreed that the resources spent compiling the estimates would be better spent improving actual record reporting and not estimating the possible existence of records. The National Center for State Courts and SEARCH made recommendations to BJS for next steps regarding the record estimates. In September 2013, BJS reported that it is exploring an alternative evaluation methodology as part of a long-range record improvement plan that would be submitted by states with specific grant applications and would include targets for annual record increases. Based on DOJ's actions, we consider this recommendation to be closed as implemented.
Recommendation: To help ensure effective implementation of the NIAA, and to help ensure that incentives exist for states to make records available for use during NICS background checks and that DOJ has a sound basis upon which to base incentives, the Attorney General should determine (1) if the NIAA reward and penalty provisions, if they were to be implemented, are likely to act as incentives for states to share more records, and (2) if, given limitations in current state estimates, whether DOJ can develop a revised estimate methodology whereby states are able to generate reliable estimates as a basis for DOJ to administer the NIAA reward and penalty provisions. If DOJ determines either (1) that the reward and penalty provisions are not likely to provide incentives for states to share more records or (2) that it is unable to establish a revised methodology upon which to administer the reward and penalty provisions, DOJ should assess if there are other feasible alternatives for providing incentives or administering the provisions and, if so, develop and submit to Congress a legislative proposal to consider these alternatives, as appropriate.
Agency Affected: Department of Justice