BENCH BLOG: On this much they agree: DOJ database seriously flawed

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Read the case of Teague v. Schimel at your peril.

It’s a 92-page fractured decision consisting of three separate two-justice opinions and a dissent.

Since each of the three opinions is joined by only one other justice, there’s no majority opinion, and there’s even disagreement about whether the first opinion is actually the “lead” opinion or simply one opinion.

And there’s utter disunity about the appropriate remedy in the case.

The good news is that there is strong agreement among the six justices that something is seriously wrong with the algorithmic operation of the massive criminal history database — it contains nearly 1.5 million names – maintained by the Department of Justice.

Inaccurate DOJ reports

Dennis Teague, one of three plaintiffs, complained that the DOJ issued inaccurate reports to requestors who had asked for his criminal history.

Teague has no criminal history.

But Teague’s identity had been misappropriated in the past by his cousin, who had given Teague’s name once when he was arrested.

Remarkably, because of the algorithm the DOJ uses, any criminal-history search for Teague in the DOJ’s database elicits a report on his cousin’s criminal history. Why? Because Teague’s name appears as one of the cousin’s aliases.

The DOJ’s database is frequently used for criminal-history searches — to the tune of 900,000 a year. The requestors can be anyone from prospective employers and prospective landlords to financial institutions and, indeed, any member of the public.

When such a search is requested, subjects are never made aware of that fact. Therefore, they may never know they were passed over for a job or a rental unit or a loan because of a report from the DOJ database saying they have a criminal history.

Thus it was by chance that Teague learned the DOJ was issuing reports that were easily interpreted as meaning he has a criminal history.

Innocence letters

The DOJ readily admitted that the information it provides is unreliable. It nonetheless asserted that the disclaimers which accompany the information are sufficient to alert each requestor to this unreliability.

Four of the six justices found these to be ineffectual.

If, like Teague, people discover that they’re inaccurately reported to have a criminal history, they can send the DOJ their fingerprints with a request for an “innocence letter.” If their fingerprints are not found in the database, the DOJ will send them a notarized letter stating they have no criminal history as of the date of the letter. Teague did so.

But the DOJ doesn’t mention the innocence letter when future reports are sent out to requestors. Teague also discovered that the letter would become outdated every time his cousin was arrested again.

Kelly’s writing

Justice Daniel Kelly’s opinion appears first and contains the mandate of the case.

He easily found a violation of sec. 19.70(1). That statute provides that a public official – the attorney general here – has a duty to correct or supplement an inaccurate report. Kelly concluded that sending his cousin’s criminal history in response to a request for Teague’s criminal history constitutes an inaccurate report.

Therefore, the report must be supplemented or corrected under the statute.

That takes care of retrospective relief for an inaccurate report already issued. But what remedy will provide prospective relief? Here, the analyses in the 3 justices’ opinions diverged.

Prospective relief

Kelly’s approach was to launch into a 30-page procedural due-process analysis, complete with reference to the Magna Carta. Focusing on the liberty interest, he found that the DOJ defames Teague with each report because each one creates a presumption of Teague’s criminality.

But the stigma of criminality is not enough. So Kelly identified a multitude of statutes that require a criminal-background check before licensure, various employment, and even some volunteer activities.

He concluded that because the stigma caused by the DOJ’s report “imposes a tangible burden on Mr. Teague’s ability to obtain or exercise a variety of rights and opportunities recognized by state law,” his status had been altered and he therefore suffered a deprivation of liberty.

He would therefore remand the case to the circuit court to determine “what manner of procedural safeguards are sufficient” to satisfy Teague’s right to due process of law.

‘Separate writing’

Justice Shirley Abrahamson’s denominated her writing a “separate writing” because there is no majority opinion, therefore hers cannot be a concurrence.

She concluded that the DOJ has a “judicially enforceable duty” to correct the criminal-history records under sec. 19.70. The enforcement of this duty would be to use a declaratory judgment to find that the DOJ must comply with the statute “and hereafter issue correct criminal history records” of the plaintiffs.

Moreover, she would include an injunction in the declaratory judgment. “Only injunctive relief will prevent the [DOJ] from hereafter releasing inaccurate criminal history records pertaining to the petitioners.”

Part of her rationale for the declaratory judgment is that this leaves it up to the DOJ to figure out how it will comply, since it has the needed “expertise and institutional capacity.”

She then embarked on her own interpretation of sec. 19.70.

Concurrence

Justice Michael Gableman disagreed with Kelly’s having reached the constitutional question of due process because, according to Gableman’s view, applying sec. 19.70 was sufficient to conclude the case.

Here, the DOJ knows its database repeatedly produces the same inaccuracy. Therefore, Gableman concluded that the phrase “correct[ing] the information” in sec. 19.70 requires ensuring that Teague’s cousin’s criminal history will no longer be inaccurately reported as Teague’s.

“I agree with Justice Abrahamson that sec. 19.70 ‘would be an ineffective, worthless provision’ if Teague did not have a remedy under the statute.”

Gableman’s proposed remedy was judicial review under sec. 227.52 if the action the DOJ ultimately takes to correct the criminal-history reports under sec. 19.70 is insufficient to remedy Teague’s injury.

Commentary

In the last footnote in Kelly’s opinion, he writes:

“No proposed form of remedy garnered a majority of the justices’ votes, but neither has a majority of the court foreclosed any particular form of remedy.

“On remand, therefore, the circuit court will conduct further proceedings to determine the nature and extent of prospective relief that will be sufficient to protect the petitioners’ rights” under sec. 19.70.

In one sense, that’s pathetic. Send the burden of devising a remedy back to the circuit court when the Supreme Court itself can’t figure it out. The members of this court are too invested in their individual viewpoints and analyses to put any authentic effort into reaching consensus.

On the other hand, remanding it certainly honors the legal scholarship and in-the-trenches practicality of the circuit courts. In this case, that confidence is well placed since the circuit judge getting the remand is Dane County Judge Juan Colas.