WASHINGTON — Swept along by the tide of outrage and sorrow after the 2007 Virginia Tech massacre, Congress passed a law to try to prevent future tragedies by keeping guns out of the hands of the mentally ill.
The measure, signed by President George W. Bush, promised to strengthen the 14-year-old National Instant Criminal Background Check System by establishing incentives and penalties to prod states to submit records of people legally barred under federal law from buying guns — including those who had been committed to mental institutions.
But today, that promise remains unfulfilled. More than half the states haven’t provided mental health records to the federal database that gun dealers use to check on buyers. And the gap in dealing with the mentally ill is just one of myriad problems that have hampered background checks.
In the shock that followed the Sandy Hook Elementary School killings last month in Newtown, Conn., improving that system has emerged as a major focus of the Obama administration’s plans for combating gun violence. Vice President Joe Biden, who could make recommendations to the president as soon as Tuesday, said he believed there was support for expansion to cover private gun sales, which make up much as 40% of all purchases but do not require background checks.
The history of the last change, the NICS Improvement Amendments Act, shows how difficult it will be to fix this broken system. Many states haven’t even begun to figure out which of their mentally ill residents should be included, or how to gather paper records from courthouses and mental hospitals. There is federal funding for the work, but not nearly enough.
Last year, after the 2010 Tucson shootings by a mentally ill Jared Lee Loughner, President Obama acknowledged in an opinion column that the law “hasn’t been properly implemented.”
The background check system, which became effective in 1998, was part of a 1993 law that prohibited people from possessing guns if they were convicted of a felony, addicted to drugs, committed domestic violence or were involuntarily sent to a mental institution.
Gun rights organizations, including the National Rifle Assn., have fought expansion of those checks. Though the NRA says it supports making sure the names of “violent schizophrenics” are in the database, the group also made it tougher for states to comply — by successfully lobbying for a provision in the 2007 law that requires an appeals process so the mentally ill can seek to have their gun rights restored. States must set that up before they can receive federal grants to help collect records.
As many as 2 million mental health records are not in the system, the National Center for State Courts has found. Gun control advocates say plugging holes like that could be one of the most effective ways to stem gun violence.
“Having 2 million prohibited purchasers out there whose names are not in the background check database is a ticking time bomb,” said Mark Glaze, executive director of Mayors Against Illegal Guns.
Tighter standards in 2007 might have prevented the Virginia Tech shooter, Seung-hui Cho, from buying guns. He passed two background checks even though a judge had found him to be a danger to himself and ordered him to get mental health treatment. The state had interpreted the law to cover only in-patient treatment, so his name wasn’t submitted. Virginia has since changed those rules.
Loughner too was able to pass background checks despite mounting evidence of mental problems; he had not been involuntarily committed to an institution or convicted of crimes, the main triggers under the law.
The 2007 improvement act was supposed to speed development of the system by providing grants to states to help pay for hunting down records and setting up electronic databases. But Congress has handed out just a fraction of the grants allowed. Last year, $125 million was authorized under the law, but just $5 million was appropriated.
“The cost of making those changes far outweighs the grant money coming in,” said Carol Cha, acting director for homeland security and justice issues at the Government Accountability Office. “So states are having to make that difficult choice.”
There has been progress, though. The number of gun sales denied for mental health reasons increased from 365 in 2004 to 2,124 in 2011, according to FBI data, although that still accounts for less than 2% of all denials. And the database now has 1.2 million mental health records, up from about 200,000 in 2004.
But most of those records came from just 12 states, while nearly half the states have sent in just a handful of names, according to a July GAO report. “Most states have made little or no progress in providing these records,” the report said.
Federal agencies, such as the Drug Enforcement Administration and the Department of Defense, also have been slow to submit relevant records.
California in recent years has become one of the most cooperative states, submitting more than a quarter of a million mental health records to the federal database by October 2011, more than any other state, according to FBI statistics cited by Mayors Against Illegal Guns.
For more than two decades, the state has kept centralized records on people who are ineligible under state law to possess firearms for mental health reasons. But because of privacy concerns, as well as differences in state and federal reporting standards, it took years for the state to begin sharing them.
California also goes beyond federal law in trying to keep guns out of the hands of the mentally ill. The state bans firearms possession for five years after someone is placed on a 72-hour psychiatric commitment.
One of the main obstacles in developing the federal mental health database for the background check system is confusion over who should be included. The law says the database should include people who have been judged “mentally defective.”
“Not only is that term highly offensive, it’s completely outdated,” said Ron Honberg, policy director at the National Alliance on Mental Illness. “I think there’s a lack of clarity, so states are all over the map on how to interpret it.”
In Alabama, for example, state officials decided to submit the names of people who had been involuntarily committed to institutions only when they’d also been found guilty of an “inappropriate use of firearms” or shown to be a threat to do so. That turned out to be just 243 people, according to a report by Mayors Against Illegal Guns.
Some states have delayed over worries about privacy concerns. Others have antiquated database systems or say they don’t have the money to provide the records.
In Idaho, state officials have just begun to submit mental health records to the database, 17,000 so far of an estimated 60,000. But it took the state four years to prepare, said Dawn Peck, manager of the Idaho State Police criminal identification bureau.
The first challenge was passing the state law and setting up the appeals process, she said. An early version said judges could restore gun rights if there was “clear and convincing” evidence that the person wasn’t a threat. Peck said the NRA thought that was too tough; the Legislature set the bar lower, at a “preponderance” of evidence.
The NRA did not return calls seeking comment.
Once the law was passed, Peck said, the state began the laborious process of gathering two decades of files from county courthouses. “That’s probably the more cumbersome issue,” she said.
One huge hang-up: turning over the records is voluntary. The U.S. Department of Justice can penalize states that don’t participate by cutting other federal crime grants, but it has not done that.
“What the federal government does need to do,” Glaze said, “is enlarge both the carrots and the sticks necessary to get states to do the right thing.”
A proposed federal law, the Fix Gun Checks Act, aims to plug the holes in the system by making the checks apply to all gun sales and authorizing deep cuts in federal aid for states that don’t go along.
Pennsylvania is one of the states that hasn’t turned over any mental health records — even though some of the records are already in the state’s background check system. Republican state Rep. Todd Stephens, a former prosecutor, says the State Police have cited technical difficulties. He’s planning to submit a bill to speed the process.
“It ought to be a national initiative,” he said. “Barring a tragedy, we would have no way of knowing whether someone with a mental health history from Pennsylvania was buying a gun somewhere else.”