Even if a person is acquitted, the mugshot can still circulate online for years. Some people argue a mugshot can change the outcome of a case.
“Viewing someone’s photograph after the fact, sometimes months after the fact, there’s a danger of them identifying in court the person whose photograph they saw instead of the person who actually committed the offense,” said attorney Donald Kelly with Tully Rinckey PLLC.
Innocent or guilty, once a photo hits the web, it can be saved by nearly anyone with access to a computer.
The use of mugshots for grandstanding prosecutors in their “naming and shaming” promotions has made for great press. After all, what’s a story on the telly without an image? The fact that the disgraced criminals are presumed innocent, and end up having their charges dismissed by the truckload shouldn’t ruin a decent prosecutorial self-promotional opportunity, right?
“No one should have to go to the courthouse to find out if their kid’s baseball coach has been arrested, or if the person they’re going on a date with tonight has been arrested. Our goal is to make that information available online, without having to jump through any hoops.”
Is your neighbor a child molester, a drunkard, a wife-beater, just salaciously dirty? Don’t you have a right to know? Well, no, not when the person hasn’t been convicted of anything, because an arrest, the act giving rise to a mugshot, means nothing.
Robach, who interestingly began his political career as an Assembly Democrat, but later turned conservative Republican when he was elected to the Senate, where he voted against the Marriage Equality Act, includes three exceptions to the prohibition.
BUT SHALL BE MADE AVAILABLE
(A) TO A PERSON, AGENCY OR ENTITY PERFORMING A CRIMINAL JUSTICE FUNCTION, AS DEFINED IN SUBDIVISION TEN OF SECTION EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE LAW, UPON ITS REQUEST, FOR ANY SUCH FUNCTION, WHICH MAY WHEN APPROPRIATE INCLUDE PUBLIC RELEASE OF SUCH PHOTOGRAPH;
(B) PURSUANT TO A COURT ORDER DIRECTING THE RELEASE OF SUCH PHOTOGRAPH; AND
(C) TO THE ARRESTED PERSON OR DEFENDANT, UPON HIS OR HER REQUEST.
While (c) is uncontroversial, both (a) and (b) appear to need some significant fleshing out. His purpose is explained in the bill summary,
This legislation would prohibit mug shots from becoming publicly available until conviction, with certain exceptions for criminal justice functions and compliance with court orders. A valid law enforcement purpose also includes use by defense attorneys, and allows for publication by newspapers to aid in the arrest or apprehension of wanted criminals.
But the bill doesn’t preclude other “valid law enforcement purposes” that will no doubt arise, like warning of dangerous individuals, providing a deterrent effect or educating the public. And who decides what’s valid, or is that left to be determined after the harm is done and can’t be undone?
“Valid” is in the eye of the beholder, and ultimately becomes a matter of rhetorical skill rather than actual necessity. No doubt there will be efforts made by law enforcement and prosecutorial groups to craft weighty sounding reasons to circumvent this prohibition. They’re remarkably good at stringing words together that mean little but sound persuasive.
While one might suppose that release under court order would be uncontroversial, the bill fails to provide guidance to judges as to the legitimate purposes of release or the burden of proof. Is it sufficient to seek release “because we wanna,” and if some village court non-lawyer judge says “whatever,” is that good enough?
Naturally, law enforcement’s historic concern with transparency and freedom has given rise to grave concerns about how this bill will impair the public’s right to know:
“I’m always concerned when government restricts access to things and restricting access to a photo that is public record is a little bit concerning,” said Deputy Chief John Balloni with the Onondaga County Sheriff’s Office.
No doubt he feels the same way about his deputies’ reports containing information suggesting the defendant is innocent or the complainant is lying, and desperately wants the public, if not the defense, to be aware as quickly as possible.
While it might prove difficult for media outlets to cry foul over a law designed to protect the innocent from being publicly smeared by their mugshot on the internet, given the vested interest in having visuals to put on the screen when they breathlessly name the “alleged” perpetrator of some horrible crime that has yet to be proven, the “public’s right to know” mantra fails to make a persuasive argument for disclosure. Perhaps after conviction, but there is no “right to know” that a person who is presumptively innocent was arrested.
The destruction of a life, the harm to the integrity of the legal system and the facilitation of the mugshot removal industry provide some pretty strong reasons to support Sen. Robach’s bill. And unlike other laws designed to eliminate online content, this applies only to content generated by the government and passed out by the government for its own, dubious purposes, whether as a revenue generator or to smear the innocent.
While the exceptions still need a bit more work, this is a law with no legitimate downside, unless you happen to be a District Attorney running for higher office in desperate need to put on a show. But fear not, there’s always something to shriek about in the criminal justice system, and if it’s not the mugshots of the innocent, they’ll come up with something.