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FOX 13 News 360: Should Utah restrict the public release of mugshots?

Posted at 10:16 PM, Feb 21, 2021
and last updated 2021-02-22 00:53:23-05

Jail booking photos — or mugshots — and the timing of their release are being debated on Utah’s Capitol Hill this legislative session.

In this 360 report, we talked to the people behind the bill who are seeking to protect these photos, as well as those who argue against it, saying it would restrict what should be available to the public.

Utah County Attorney David Leavitt says a mugshot is something that shouldn’t be immediately released.

“When most people see a mugshot, they see: ‘There’s your criminal who’s been convicted of a crime,’” Leavitt said.

Thus, not protecting the innocent until proven guilty, he said.

“Oftentimes people are arrested and are not charged. Or, they’re arrested and charged and they’re found not guilty,” Leavitt said. “Once the jail photo or the booking or the mugshot is released onto the internet and is grabbed by different platforms that do various things with them, those feathers have left the pillow and there’s no way to get them back.”

Utah Rep. Keven Stratton (R-Orem) sponsored House Bill 228, which classifies these photos as protected records and prevents sheriffs from disclosing them.

“The reality is that in 2021, what we do, that comes across the virtual world can really be damaging,” Stratton said. “I’ve had constituents and others in our state who’ve had personal and business and economic upheaval.”

However, not everyone is on board.

Dan Shelley, the executive director of the group Radio Television Digital News Association (RTDNA), says it’s unconstitutional to restrict their release.

“RTDNA has been around since 1946, and throughout our entire history, we have fought for the notion that public records should be public records. Mug shots, by definition, are public records because they are generated by a public entity, a law enforcement agency or a jail system,” Shelley said. “It restricts public records in what we believe is an overreaching and over-reactional way. House Bill 228 is an afront to the First Amendment. It’s an afront to the public’s need to know what’s going on in their communities.”

But advocates for reform say the release of mugshots contributes to Americans making an unfair association between people of color and crime.

“Black Lives Matter is in favor of this bill, and I do want to note that police officers came on for previous bills and said, ‘Hey, we don’t want to release footage to protect a possible innocent person or defendant on either side,’” said Lex Scott, the founder of Black Lives Matter Utah. “And so, I disagree with them releasing mugshots, especially every time someone is killed by police. The first thing that’s done is their mug shot is released, even if the person did not commit a crime. So, I’m in full support of this bill and I want to thank you for bringing this bill.”

Mike O’Brien, an attorney representing the Utah Media Coalition, argues that this isn’t the time to lessen public access to the criminal justice system, including mugshots. He claims they are for the greater good of the public.

“Mugshots have been open and available to the public forever. For decades and decades. It certainly is one hallmark of transparency of the criminal justice system,” O’Brien said. “Mugshots have been used to identify mistaken defendants… mistaken arrests. They’ve been used to identify additional victims to a crime. They’ve been used to identify the possibility of police abuse or police impropriety in terms of the arrest.”

He says news outlets self-regulating the process of publishing booking photos is a better approach than a government mandate.

"Journalists are very discerning and very careful about the use of mugshots, particularly during this era of racial reawakening," Shelley added.

But Leavitt says publicizing a suspect's mugshot when they've been arrested but not convicted is a "virtual Scarlet Letter."

"Let’s go take your mugshot. Let’s go put it up on social media for an hour. Then let’s try to take it down, and let’s track what that does to your life for the next twelve months — for the next 10 years," he said. "My guess is those people would feel differently."

Leavitt and Stratton believe the release of mugshots could be seen as cruel and unusual punishment.

If the bill passes, there will be some exceptions, such as if a judge orders the photos released, or if the suspect is an imminent threat or wanted fugitive.

The bill passed a Utah Senate judiciary committee and is now on the Senate floor.