Americans may have increasingly different perspectives, but virtually all of them recognize the face of former President Donald Trump. Sure, some have seen enough of him, while others eagerly await his every word, but seeing a mugshot of him wouldn’t advance justice for any of us.
Even if one had been taken at his arraignment, as in nearly every other criminal case, it would almost certainly not have been released. That’s because New York State adopted legislation four years ago limiting the public dissemination of mugshots. Most states lack such protection, though some, including North Carolina, are now considering it.
Though the Trump campaign uses a fake mugshot to sell t-shirts, subjecting the former President to an actual mugshot would certainly not have advanced a “legitimate law enforcement purpose.” This standard set by New York’s 2019 law sought to protect the privacy of those arrested who have not had their day in court.
For the 330 million Americans who have not served as President and don’t have legions of supporters buying their memorabilia, the stakes are clearer and far higher than for Trump. Most Americans lack a public profile, so a mugshot could be the first or even only result that prospective employers or landlords find when searching for them online. Though the history of mugshots dates back to the 1840s, the internet has made such photos accessible worldwide and thus far more damaging.
In light of this, state lawmakers, local governments, and policing agencies should follow New York in revising policies and practices that result in the mugshots of all arrestees being posted online.
First and most importantly, many of those arrested are never charged with or convicted of a crime. A March 2023 report found that the U.S. Attorney’s Office in Washington, D.C., did not bring charges against more than two-thirds of those arrested. The overarching reason is that authorities had insufficient evidence that they had detained the right person owing to problems related to forensics, camera footage, officer veracity, or other factors. Not every arrestee who is never convicted is, in fact, innocent. Still, it is wrong to saddle them with a public mugshot that becomes a “scarlet letter.”
Additionally, most arrests are made for minor offenses, most commonly for low-level drug possession, driving with a suspended license, and warrants for unpaid fines and fees. Just 5 percent are for violent crimes, a fact that discredits the argument that automatically releasing such photos has substantial public safety benefits.
Another reason to avoid the public distribution of mugshots is that, even if they are deleted later from the government agency’s website, they can be used for extortion by for-profit websites. One such website has been accused of charging at least 5,703 people to have their mugshots taken down, enabling its creators to pocket about $2.4 million.
Though states such as Texas have enacted legislation to outlaw such profiteering, there are constitutional free speech challenges to attempting to restrict private entities from circulating content posted by a government entity as public information. Also, an image can be shared an infinite number of times online, so putting the proverbial genie back into the bottle is exceedingly difficult.
Finally, we can preclude the public dissemination of mugshots in most cases while making commonsense exceptions. For example, law enforcement agencies in New York have rightly concluded that a legitimate public safety purpose exists to post a mugshot when the arrestee is a fugitive from justice. Likewise, the North Carolina proposal sensibly exempts cases involving a defendant who has gone missing.
The most challenging circumstances involve a defendant charged with the most severe offenses, such as homicide and rape. In cases involving the highest risk, such as defendants against whom there is clear and convincing evidence of guilt, the best way to protect the public is to deny release on bail following expedited proceedings in which the accused is represented by capable counsel. Also, legislation such as that in New York and North Carolina does not prevent law enforcement from publicly sharing the defendant’s name, identifying information, and even photos other than mugshots. These could include those from a camera that purportedly depicts the person engaged in criminal activity.
President Trump’s indictment and court appearance commanded outsized attention, but all of us should be protected by a law like New York’s that avoids stigmatizing people before they have had their day in court. For the untold number of Americans whose public mugshots live in perpetuity despite never being convicted, these images are truly the worst kind of “fake news.” Despite the irony, let’s hope this case involving the National Enquirer leads more policymakers to rethink the wisdom of automatically posting mugshots of everyone arrested.
Author: Marc Levin and Khalil Cumberbatch