Moving

Rethinking mugshots: On-line period means they stay endlessly so states, together with Oregon, are shifting to restrict launch

Julie Levitch wasn’t arrested until a sweaty evening in August 2020 when a neighbor heard broken glass and called the police.

Levitch, a 52-year-old mother of two, had gone to her boyfriend’s house to return his phone. The doorbell was broken, so she knocked on the window. It had cracked, and when she tapped the glass, her hand broke right through, leaving a bloody wound, she said. When the Phoenix police arrived, the couple stated there was nothing wrong – but officers arrested Levitch and charged her with criminal harm through misdemeanor.

She spent the night in jail, where she says she was sexually molested, the cave was searched and put in solitary confinement for 16 hours. Three months later, prosecutors agreed to drop the charges.

Now Levitch is suing – not for her arrest and detention, but because the county jail posted her mug shot online. Like many law enforcement agencies, the Maricopa County Sheriff’s Office routinely releases photos of people admitted to the local detention center, potentially permanently devastating their lives before they were convicted.

“That photo will be out there forever,” Levitch told me, worrying about how it would affect everything from job openings in her job as a technical writer to new friendships. “We live in a society where you’re supposed to be innocent until proven guilty, but I was found guilty the minute the mug shot showed up.”

The Maricopa County Sheriff’s Office has not yet responded to Levitch’s lawsuit, and a spokeswoman declined to comment on pending litigation.

In the digital age, those images of people’s worst days lurk forever as internet clickbait. Many news outlets have stopped posting mug photos – or at least so many of the photos – but some states and cities are starting to grapple with a more fundamental problem: Why are police posting mug photos – and should they be allowed to?

“If you see a mug shot, you are suspecting crime,” said Imani Gandy, a law and court journalist and a vocal critic of the representation of colored people in the news media.

In Oregon, after January 1, law enforcement officials may only release booking photos under certain circumstances, such as trying to find a fugitive.

***

The first time I saw my own mug shot was the day after I was jailed in New York state for heroin. It was December 2010, and I was still on the high of drugs, when the other women in the cell block woke me up to point out my frowning face on the evening news.

With scabby cheeks and a red nose, I looked worse in this photo than any other I’d ever seen of myself. I had no idea then how stubbornly it would follow me. Long after I stopped getting high, articles about my arrest – with that “faces of meth” -like picture attached – were the first results when I typed my name into Google, like a digital ball and a chain to me connects with a previous life.

Still, I was fortunate and privileged to be given a second chance, unlike so many others. When I started working as a reporter, it was part of my job to add mug shots to dozens of local news and crime stories. Media has long been posting the images that drive web traffic and, with it, advertising money.

It wasn’t until some editorial offices began to abandon this practice that I began to wonder why we had ever done this and urged my own editorial team to stop. (The Oregonian / OregonLive has severely restricted the use of mug shots in recent years.)

***

It was only recently that I began to ask why the police had to publish mug shots in the first place.

Some law enforcement agencies are asking themselves this question as well. The Justice Department has repeatedly refused to post mug shots, arguing in a federal appeals court that there is no public safety interest in posting images that represent a “permanent picture of one of the most difficult episodes in a person’s life.”

Last year the San Francisco Police Department also suspended their release.

“The widespread publication of police posting photos in the news and on social media creates an illusory correlation for viewers that encourages racial prejudice and vastly overestimates the propensity of black and brown men to commit criminal behavior,” said Chief Bill Scott at the time.

Now the department only publishes arrest photos if they have a clear law enforcement purpose – such as finding a suspect or missing person. Last month, Newark, New Jersey police announced a similar policy change.

At least three states have gone a step further and have banned some mug shots from being published. In 2019, New York changed its Open Records Act to prohibit posting of mug shots unless it helps law enforcement. That year, California banned police from posting the pictures on social media, and Utah banned mug shots from posting until after the conviction.

The changes generated some resistance, particularly from civil rights groups and journalists. At a February hearing, Salt Lake City investigative reporter Nate Carlisle asked lawmakers to reject Utah law, pointing out that mug shots are sometimes the only evidence of police brutality during an arrest.

“I just don’t think it’s good public policy to hand out fewer government documents,” he told me a few weeks ago. “Whether journalists should publish them is another discussion.”

Since mug shots are often viewed as public records rather than criminal records – the latter of which are considered too personal in many states to release – it’s hard to win a lawsuit like Levitch’s.

“These lawsuits are usually dismissed because the agency says, ‘It’s a public record and we have the right to publish it,'” said Sarah Lageson, a Rutgers sociologist who studies mug shots.

There are a few exceptions, she said. A 2016 court ruling allowed the Department of Justice to withhold mug shots, and in a Pennsylvania case, ex-prisoners were awarded cash damages when a federal jury ruled that releasing mug shots was against the Open Records Act.

“It should be a change in the law and then we wouldn’t have to rely on judicial interpretation of what is publicly available in the digital age,” said Lageson.

Some law enforcement say that posting mug shots can encourage other victims to come forward, and others claim – without evidence – that threating a mug shot can help deter crime.

But for people who have publicly posted their mug shots, it seems like the practice also discourages rebuilding a life. Sometimes it’s hard to pinpoint the exact damage because when a would-be job or a landlord or date pops up after discovering a stigmatizing picture online, we usually never know. To Levitch, this seems to undermine the basic protections our justice system should have.

“Is it constitutional to publish mug shots that damage the reputation of people when they are still innocent?” Said Levite. “It just seems naturally unfair and not American to do this.”

Keri Blakinger is a salaried writer whose work has focused on prisons and prisons.

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