The wall of shame

The wall of shame. Lawmakers across the U.S. are moving to stop police from releasing booking photos unless the arrestee failed to appear for court, was a fugitive or was convicted.  

After a weekend in the Burleigh County, North Dakota, detention center last summer, Dustin Gawrylow was relieved when the state’s attorney decided not to press charges against him.

Gawrylow, 38, had been in a fistfight with his brother — a “brotherly scuffle,” he called it —and was surprised to be arrested after going to the police to explain what happened.

But even though his charges didn’t stick around, his booking photo did.

“In the meantime, my mug shot got out, and it circulated widely in political circles,” said Gawrylow, who in 2012 started the North Dakota Watchdog Network, a libertarian-leaning group that advocates for lower taxes and less government spending.

He testified in January in support of a North Dakota bill that would stop police from releasing booking photos like his unless the arrestee failed to appear for court, was a fugitive or was convicted. “This idea that we are throwing out these pictures to embarrass people goes against the nature of due process,” Gawrylow said.

The measure failed on a narrow, bipartisan vote. But the Republican governors in Utah and Montana signed similar laws, and legislation has been proposed in at least three other states: California, New Hampshire and Oregon.

In recent years, legislators in many states have debated measures that would crack down on websites that post mug shots and then charge people hundreds or thousands of dollars to remove their photos. This year, some lawmakers want to go further by barring the release of the photos not just to those sites but also to the public generally, including to law enforcement social media accounts and news outlets.

Supporters say the legislation, all of which has bipartisan support, fits with the broader movement to curb police abuses. Some say mug shots exacerbate racial stereotypes.

People are innocent until proven guilty, but the public release of mug shots taken at the time of arrest can become a barrier to housing, employment and personal relationships, regardless of whether the person ends up being convicted of a crime.

”It’s just a snapshot of potentially the person’s worst day of their life without any context as to the outcome of the arrest,” said North Dakota state Rep. Shannon Roers Jones, a Republican who sponsored that state’s bill.

But in North Dakota and elsewhere, members of the media and law enforcement have come out strongly against the legislation. The media angle is personal to North Dakota Republican state Rep. Austen Schauer, who worked in broadcast news for 36 years and voted against the bill.

”The mug shots help tell the story for the media,” Schauer said. “It’s used for the public’s good as well, for investigators. It’s public information; why would we cover up public information?”

He argued that it’s the responsibility of law enforcement to arrest the right people. And a mug shot, he said, can act as a reality check to cause someone to change.

Reducing racial bias

Each year, police arrest millions of people in the United States. A booking photo is part of those arrest records. While courts have ruled federal mug shots don’t need to be released under the federal Freedom of Information Act, states largely make booking photos available through their public records laws.

Many police departments post arrest information with photos on their websites and social media accounts. Some sheriffs, for example, publicize a running roster of people in the county jail.

But some arrests don’t lead to charges. Sometimes charges are dropped, and many people charged with crimes are acquitted.

”The standard for arrest is probable cause. A simple way of putting that is a reasonable probability that that person committed a crime,” said Steve Burton, executive director of the Utah Association of Criminal Defense Lawyers, who supported the Utah bill. “It does not even have to be more than a 50% certainty.”

The internet, however, hangs on to those photos. The images can reappear with a simple browser search. ”If you read the news and you see somebody’s mug shot and that so-and-so was arrested for such-and-such, human nature is to automatically assume that they did it,” Burton said.

Supporters of the bills note that they aren’t trying to conceal basic arrest information, such as an arrestee’s name and the charge. But they argue that booking photos cause the subjects more lasting harm because it means those people can be visually identified.

Furthermore, post-arrest photos can perpetuate racial stereotypes, according to Jack Glaser, a professor at the University of California, Berkley’s Goldman School of Public Policy.

“When (people) hear about crime and hear about minority status, they tend to overestimate the relationship between those two things,” Glaser said. “Even if the reporting is proportional to the offending, there is a human tendency to ratchet it up.”

Glaser worked with William Scott, chief of the San Francisco Police Department, to develop a policy to no longer release mug shots in an effort to reduce racial bias.

That’s part of the motivation in Oregon, where state Rep. Janelle Bynum, a Democrat, has introduced a bill that would stop law enforcement from releasing booking photos to the public before a conviction. The bill has an exception for “law enforcement purposes,” such as seeking the public’s help in finding a fugitive or a known suspect.

The practice of media publicizing booking photos “tends to harm communities of color more than anybody else,” Bynum said in an interview. The bill passed the House in a 54-4 vote and is headed to the Senate.

“The worst day of someone’s life — should that be fodder for everyone in the community?” Bynum asked.

Police, media opposition

As of May 5, viewers of the “Who’s been booked?” page on the Cache County, Utah, website no longer have the option to download photos of people in jail.

A new Utah law makes a person’s booking photo a private record prior to conviction, unless law enforcement deems a person to be an imminent threat to public safety or a fugitive, or a judge orders the image to be released.

Those public safety caveats were essential, said Cache County Sheriff Chad Jensen, a Republican who’s also president of the Utah Sheriffs’ Association. When first introduced, the bill would have totally barred police from releasing photos of subjects in criminal investigations. “We had some concerns about what this legislation would do to our work,” he said.

One person voted against it: state Rep. Nelson Abbott, who said he was concerned the state was taking the lead on the issue.

”My understanding is that we are the first State to do this,” Abbott, a Republican, wrote in an email. “I’m not convinced this move has been thought through entirely.”

Abbott said he was concerned about people looking for a missing family member who may have been arrested and given police a false name. Abbott also said the public should know who has been arrested to make sure the government isn’t abusing its authority. “Utah is far off from that,” he wrote. “However, I believe an important safeguard is having transparency in law enforcement and especially in regards to incarceration.”

In other states, media associations have made the transparency argument — as has law enforcement.

At a recent New Hampshire Senate Judiciary Committee hearing, both a police chief association and the state media association testified against legislation that would stop post-arrest photos from becoming a public record.

“The need for transparency in law enforcement is paramount, particularly in today’s climate, and passing this bill would run contrary to that,” said Chief Allen Aldenberg of the Manchester Police Department.

“The public has a right to know who police have arrested, and that includes what those arrestees look like,” said Brendan McQuaid, president and publisher of the New Hampshire Union Leader.

The Montana law, signed by GOP Gov. Greg Gianforte at the end of April, requires law enforcement to charge $100 to release a mug shot before a conviction. The sponsor, Republican state Rep. Brandon Ler, said the measure targeted media outlets.

Some media outlets have changed their practices of using mug shots, independent of state law. In 2018, Gannett, among the nation’s largest newspaper chains, took mug shot galleries off its news sites. Last year, after GateHouse media acquired Gannett and its name, the galleries were taken off 26 former GateHouse sites. Sites including the Biloxi Sun Herald and the Houston Chronicle have made similar changes, according to the Poynter Institute, a nonprofit journalism research organization.

‘Lot of Potential’

Sarah Lageson, a sociologist and assistant professor at Rutgers School of Criminal Justice, who has researched the harms of digital criminal records, said she considers the mug shot legislation to be encouraging, but she’s not sure there will be compliance.

“We’ll see,” she said. “A lot of these narrow criminal justice reforms have a lot of potential.”

Lageson submitted testimony in support of a measure in California that would more narrowly block police from posting to social media mug shots of people who have been arrested on suspicion of nonviolent crimes. It too would make exceptions for a conviction and cases in which police deem a person to be a threat to public safety.

The California Assembly last week unanimously passed the bill, which now is in a Senate committee. The sponsor, Democratic Assembly member Evan Low, said he chose to limit the scope to social media because blocking mug shots entirely would mean changing the state’s public record laws.

“As newsrooms continue to exercise greater editorial discretion over the publication of mugshots, I wanted to tackle a specific problem that our office saw across social media,” Low wrote in an email. “When mugshots are posted on platforms that are designed to solicit comments and shares, the accused face public ridicule and serious consequences such as a loss of employment —all before they have even been officially charged or tried in court.”

In North Dakota, Roers Jones said she hopes to introduce the booking photo legislation for the next session. She has the support of Adam Martin, who started The F5 Project, a Fargo-based organization that supports formerly incarcerated individuals and people in addiction recovery.

Martin, who has been convicted of several misdemeanors and five felonies, has experienced and witnessed what he calls the “collateral damage” of mug shots.

Around 2008, not long after being released from jail, he logged on to Facebook. A friend had shared an article with Martin’s booking photo on it. After Martin commented on the post, the friend apologized and deleted it, saying he didn’t realize Martin was out of jail.

“The hurt was already there,” Martin said. “The stigma of people who have mug shots or felony backgrounds, they’re thought of as less than people, even when it comes to their friends.”

In his work, Martin helps people struggling to find housing or a job. No matter how many years have passed or how much they’ve changed, he said, their mug shots are an internet search away.

“I have yet to meet anyone who, when they look at a mug shot, presumes innocence,” he said.