Universal Background Checks Will Not Be Effective Because of Diversion Programs

According to the ATF, if convicted of a felony criminal offense, you are not allowed to legally purchase firearms. 

We have the 2nd Amendment, but we also have diversion programs in the criminal justice system. 

Sentencing to diversion programs make it impossible for background checks to report actual cases where defendants plead guilty to a lesser offense to avoid having a felony conviction. 

One example is Frank James.  In April, 2022, Frank James opened fire in the Brooklyn, New York subway, wounding ten (10) people. 

When this story was in the news, a reporter asked if it was known how Frank James legally purchased the gun.  The answer was that James had not been convicted of a felony.

In 1995 while living in Irvington, NJ, James was charged with one count of making terroristic threats; a felony.  He was allowed to plea down to harassment, a misdemeanor, and sentenced to one year of probation. 

What we see is a person who was charged with a felony, who plead down to a misdemeanor, and because that was allowed by prosecutors, he was able to legally purchase a gun that he used to wound 10 human beings.

The judicial system supports diversion programs for “non-violent crimes”.  What they appear to be saying is that unless blood is shed, then it’s not worth prosecutors’ time taking a defendant to trial on a “non-violent” felony — so let’s plea it down so they can be sentenced to a diversion program.  Most diversion programs allow defendants to pass background checks for employment, vote, and yes  — legally purchase firearms.   

The Center For Prison Reform lists their reasons why jail diversion programs are effective substitutes.  This includes that it avoids “unnecessary expense, trauma, and bad influence of jail.”  The compassion is there, but It’s not always good to paint with a broad brush.  One young person who commits a felony might regret their actions, while another sees it as a weak system that they can manipulate while continuing criminal behavior.

It is my impression that the public-at-large needs to know why universal background checks do not tell everything about the criminal background.  This post is two-fold as it also shares the harm caused to vulnerable citizens  when diversion programs are not considered convictions to be reported on background checks.

For instance, Illinois has diversion sentencing that when completed, is not considered a conviction for disqualification or disabilities imposed by law.  730 ILCS 5/5-6-3.1(f), which states in pertinent part;

“Discharge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime.”

Although the Courts, including the Illinois Supreme Court, have interpreted “disqualification or disabilities imposed by law” to only include Constitutional rights, such as purchasing firearms, voting, and running for public office, the Illinois State Police does not include cases of supervision on background checks.  They apparently take the above statute to mean that supervision is never a conviction — just disregard the last 14 words.  

They have written on their website;

“On January 1, 1991, the Uniform Conviction Information Act (UCIA) became law in Illinois. This act mandates that all criminal history record conviction information collected and maintained by the Illinois State Police, Bureau of Identification, be made available to the public pursuant to 20 ILCS 2635/1 et seq. This law permits only conviction information to be disseminated to the public. “

While they say the law only permits conviction information to be disseminated to the public, the Illinois State Police does not include diversion program sentencing in the background reports to state agencies (government) when they conduct those checks on behalf of private employers who contract with them.   

This means that private home healthcare agencies send fingerprints of applicants to the Illinois Department of Public Health, who submits them to the Illinois State Police, who deems it is for the public.  Thus, diversion sentences are not included on those background reports.   The same can be true for gun dealers submitting background check reports.  If those gun dealers are considered the public, then even pending cases will be omitted from background check reports because they are not convictions.

The danger?  Any Frank James can apply for a job as a healthcare worker, and the Illinois Department of Public Health will find them eligible for hiring by a private home healthcare agency.   The home healthcare agencies can assign to work in the residences of the elderly or developmentally disabled, having access to their property and physical being.

I know this from experience.   It’s not an analogy nor speculation.  In calendar year 2013, the individual who stole my money in May, 2021, was indicted for using a forged credit card in an amount over $300.00; a felony.  His victim was a senior citizen.  He was allowed to plea guilty to a misdemeanor in exchange for a sentence of 2 years of court supervision, restitution, and a fine.  When prosecutors presented the plea bargain to the court, the defendant was on supervision for another case in which he had not paid the fine.

He failed to comply with the sentencing agreement and a bench warrant was issued.  It took two more years before the bench warrant was served.  He paid the fine and restitution (which was over $700.00) and the judge allowed him to skate through.  It was more than four years since he forged a stolen credit card.  Several months thereafter, his elderly victim died.  Then the defendant sought employment as a home care aid for senior citizens and the developmentally disabled, was hired, and proceeded to steal money from his client/me.  

The Illinois Department of Public Health sincerely believes that the person plead guilty to a felony, but is eligible to work in the residences of senior citizens because he received supervision that, according to the Illinois State Police, is not a conviction for any purpose, including employment.  Because the case was omitted from his background check, it was not necessary for him to file a waiver with the Illinois Department of Public Health.  Thus, they have no idea of the facts of the case. 

When charged and/or indicted for a felony, but opting to plea down to a misdemeanor to receive diversion sentencing, the defendant must plea guilty.   In the federal judicial system, a plea of guilty is the same as a conviction.   

How are Universal Background checks going to resolve this?  Deeming a plea of guilty as a conviction has to be accepted by the states so all cases can be reported.  True, the person still has rights to own firearms, but the original charges might raise a red flag.

Red Flags Should Go Beyond Mental Health Issues and Include Diversion Sentencing

When diversion programs are used to reduce felony offenses to misdemeanors, at least the government should red flag those cases.   In fact, the federal government should require all jurisdictions to report cases of felony charges or indictments that prosecutors allowed to be plead down to misdemeanors.   Keep a record because as sure as the sun rises, there are other Frank James out there, who avoided trial by pleading guilty to a misdemeanor.   Not all people with mental health issues have been placed in facilities for treatment to leave a red flag.  However, being able to see charges and some detail about the case(s) allows for consideration of interviewing the applicant who wants to own a weapon that takes life. 

If that’s too much work for all involved, just make automatic long guns illegal.  Problem solved.

For those Interested In raising the age to 21 to purchase automatic long guns, and arguments about such a law violating 2^nd Amendment Rights, the Court Has Already Spoken.  The case is Horsley v. Trame, 808 F. 3d 1126 – Court of Appeals, 7th Circuit 2015. 

In Illinois, applicants for FOID card (Firearm Owner’s Identification Card, must be age 21.  If approved, it gives the applicant permission to legally own a firearm.  If the applicant is not yet 21 years of age, they must have approval from a parent or guardian.  In Horsley v. Trame, the FOID applicant was not yet 20 when she applied, and her application was denied for not having parental permission.   When her application was denied, Horsley filed suit against Jessica Trame, the Chief of the Illinois State Police Firearms Services Bureau.  Horsely alleged that denial of her FOID application violated her 2^nd Amendment rights, and her arguments included what 18 year olds are allowed to do by law, such as vote.   The U.S. Court of Appeals for the 7^th Circuit held that the process for 18-to-20-year-olds to not own guns is not unconstitutional.  The entire published decision is interesting.