As a defense lawyer and now a prosecutor, Utah County Attorney David Leavitt says he knows a mugshot can harm a reputation for life, even if the person is acquitted or the charges are dropped.
His experiences in both positions prompted Leavitt to speak in favor of House Bill 228, which would bar law enforcement from sharing with the public or the media a photo taken during the booking process unless the person is convicted or a judge orders its release. Exceptions also could be made if the individual is an imminent threat or a fugitive being sought by police.
“It concerned me that, in today’s internet society, that someone who is presumed innocent could have the moniker of a mugshot, which, in our society, really indicates guilt from the outset,” Leavitt told members of the Utah Legislature’s House Law Enforcement and Criminal Justice Committee at a Feb. 4 hearing.
Years ago, Leavitt said, he convinced a judge not to require a jail photo for a defendant he was representing, which resulted in there being no mugshot online after the man was exonerated of the charges against him.
Things didn’t go as well for the accused in a more recent case of a local man whose arrest was reported on the evening news along with his mugshot. When the case was brought to the Utah County Attorney’s Office, seven lawyers reviewed the matter and agreed unanimously that no charges should be brought.
Despite the determination that no crime had been committed, the man’s mugshot remains online.
Leavitt said he recognizes that sometimes there’s a need to publish a mugshot but not in all cases.
“We simply believe that in today’s world, that someone who is presumed innocent should not have their mugshot distributed worldwide for the rest of their life over the internet,” he said.
‘Virtual scarlet letter’
In Utah, records are public unless a law expressly restricts access to them. House Bill 228 would amend provisions in the state’s Government Records Access and Management Act (GRAMA) regarding images taken during the process of booking an individual into jail.
Rep. Keven Stratton, R-Orem, the bill’s sponsor, describes having a mugshot on the internet as “cruel and unusual punishment” for those who have not been convicted or charged with a crime and said the measure addresses that “inequality.”
“The reality is today, we hang a virtual scarlet letter around the one that’s been accused or arrested,” Stratton said.
Opponents argued that the bill is a danger to open and accessible government. However, at the conclusion of the hearing, the committee voted unanimously to send the bill with a favorable recommendation to the entire House, where passed it Feb. 11 by a 69-1 vote.
The dissenter, Rep. Nelson Abbott, R-Orem, said he sympathizes with people whose mugshots are publicized when they have not been convicted but voted no because he thinks the bill could be improved.
The booking photos can protect the public from individuals who might be dangerous and somebody might recognize a missing person whose image they’ve seen, he said.
“I think the criminal justice system needs to have a certain level of transparency and I think there are benefits of having sunshine on that whole system,” Abbott also said.
On Feb. 17, the Senate Judiciary, Law Enforcement, and Criminal Justice Committee voted 4-0 to give the measure a favorable recommendation.
Seeking balance
Stratton stresses that the bill prohibits distribution of mugshots based on arrest or accusation but does not bar access to other records in a case. He said the measure takes into account the First Amendment, the Seventh Amendment’s prohibition against cruel and unusual punishment and the Utah Constitution, which says that persons who are arrested or imprisoned “shall not be treated with unnecessary rigor.”
“We trying to seek a proper balance,” Stratton said.
As part of that effort, the bill was amended to include the law enforcement exceptions, he said. It meets the needs of the individual, as well as providing for the protection, health, safety and welfare of society, he said.
The publication of a mugshot based on an arrest or accusation and before a conviction has devastated some Utahns, Stratton said.
“It’s just destroyed their lives,” he said. “Sometimes it’s their family and their reputation. Other times, it’s professional opportunities.”
Molly Davis, a policy analyst for the Libertas Institute, a think tank and educational organization in Lehi, said the nonprofit supports the measure.
“This bill is going to be really good at protecting identities and making sure the public isn’t convicting someone as guilty before the courts get to,” Davis said.
The bill’s supporters also include Kane County Attorney Rob Van Dyke, who said at the hearing that the policy would protect the rights of the accused while providing dissemination of mugshots in limited legitimate law enforcement circumstances.
And Steven Burton, executive director of Utah Association of Criminal Defense Lawyers, said his clients whose cases are dismissed have a difficult time getting mugshots taken off the internet and that “sometimes, these simply never go away.”
Alyce Armstrong said people have been harmed by having their mugshot used by the media before they’ve had their day in court. A “very unflattering” booking photo of a Utah man who was charged in connection with his alleged participation in the riot at the U.S. Capitol was shown on TV and on social media, she said.
“I don’t believe that media monitors themselves,” Armstrong said. “That person was tried and convicted on Facebook from that mugshot. He was ridiculed.”
The posts include allegations that the man, who was released pending trial, is a terrorist and a criminal who should be locked up.
Some are concerned there is bias in the publication of mugshots, with stories about people of color more likely to include them. Lex Scott, of Black Lives Matter Utah, said the organization supports the bill.
Benefits of openness
Journalists and representatives of media organizations argue that mugshots should continue to be public records.
Marc Sternfield, Fox 13 news director, said the criminal justice process should not be shrouded in secrecy and that the bill impinges on a news organization’s ability to cover important issues.
“It also helps to protect minorities from being lopsided victims or targeted by law enforcement,” he said. “The only way we find these things out is if the mugshots are released.”
If that oversight is not available, then there’s a possibility that the public also would not know about people who are hurt while being arrested, according to Sternfield.
Attorney Michael O’Brien, legal counsel for the Utah Media Coalition, said the bill causes more harm than good by protecting criminal defendants at the expense of the law-abiding public. He noted that federal courts have ruled that mugshots should not be private under the federal Freedom of Information Act (FOIA) because they serve important public interests.
O’Brien said FOIA does not affect state records laws but Utah’s GRAMA provides the same benefits including making the arrest and charging process transparent; helping find at-large suspects; identifying additional possible crime victims or witnesses; and rooting out cases of mistaken arrest or mistaken identity.
In addition, posting a mugshot at a workplace can protect an employee stalking victim by alerting everyone to bar entry of the stalker, O’Brien said.
Mugshots also can reveal possible physical abuse or racial bias by law enforcement officers – which is a reason police shouldn’t be the ones to decide whether the image should be public, he said.
“Yet, HB 228 imposes a blanket ban on the release of such information that advances good law enforcement and protects personal liberty. The result is more government secrecy and bad public policy,” O’Brien said in written talking points submitted to the Law Enforcement and Criminal Justice Committee.
‘Anathema’ to transparent government
The bill is futile anyway because there are worse images available during the state court process, such as video from an arraignment where someone appears in jail clothes or in shackles, and information in criminal court can be more damning, O’Brien said.
“To really achieve their goal, HB 228 proponents must close from public view the entire criminal justice process, something which is anathema to good transparent government,” he said.
O’Brien said there are viable alternatives to the bill, including seeking assistance from Google to remove images from search results and asking news media outlets to take them off their websites.
Nate Carlisle, a FOX 13 News journalist, said news outlets do not publish every mugshot and that they are capable of regulating the use of the jail photos themselves, as they have for decades.
“We are judicious about this,” Carlisle said.
He also said lawmakers are focusing on the wrong issue.
“We’ve got this anecdote and the Legislature is running with it,” Carlisle said, referring to Leavitt’s example. “Rather than talk about the police investigation that wound up getting this man booked into jail, they seem to want to take it out on the mugshots. So, here you have one case where a mugshot didn’t serve somebody so well and the Legislature wants to change the whole law because of it. I just find that alarming.”
