ST. GEORGE — A bill that would prohibit the distribution of mugshots taken during the jail booking process until after the individual is convicted of the crime they were arrested for is over the first hurdle and one step closer to becoming a law.
As stated in its description, HB 0228, sponsored by Rep. Keven Stratton, R-Orem, amends the Utah code by making a jail booking photo “a protected record” and prohibits disclosure of “an image taken of an individual during the process of booking the individual into jail, unless the individual is convicted of a criminal offense based upon the conduct for which the individual is incarcerated.”
In other words, the bill would prevent police agencies from releasing booking photos to the public unless the individual is actually convicted of a criminal offense. As it stands now, mugshots are available online or can be requested from the jail by the media to be used in arrest stories or as a criminal case moves through the courts.
Exceptions to the bill would be if the individual is a wanted fugitive or poses an eminent threat to public safety, or if a court decision mandates the release of a booking photo.
During a House Law Enforcement and Criminal Justice Committee hearing held Feb. 4, Stratton said the bill is designed to address the inequality individuals can face when their booking photo is released based on an accusation of a crime, even though they are only accused of a crime; and by releasing the booking photo at the arrest stage, he said, “We hang a virtual scarlet letter around the one that has been accused or arrested,” who has the Constitutional right to have the presumption of innocence until guilt is proven.
Stratton went on to say it is presumed innocent until proven guilty. He added it is cruel and usual punishment by disseminating their photo following an arrest.
Utah County Attorney David Leavitt also spoke in support of the bill saying he has had experience with the damage that can be caused by the dissemination of a mugshot following an arrest.
Leavitt said what he found concerning, is that in today’s society, a mugshot is associated with guilt in the public’s eye and many times that is even before the investigation is complete.
Additionally, he said, that mugshot can remain on the internet for the rest of that individual’s life and can be pulled up at any time, regardless of whether they were guilty of the crime or not – which is a violation of the Utah Constitution, which states a defendant should not face “unnecessary rigor and cruelty of punishment.”
Leavitt also said that once the booking photo is out there, it cannot be pulled back or removed.
Opponents of the bill, including Nate Carlisle with Fox 13 Utah, said that journalists use discretion in publishing mugshots and have for decades, adding they routinely have discussions on the ethical aspect of disseminating the photos and are adept at governing themselves when it comes to the release of sensitive information. But in the end, he said, mugshots should be available for public access.
He also said there have been situations where a mugshot has been posted by a business owner or victim to warn the public of a dangerous individual, but if the bill passes then those photos will no longer be made available.
Al Tompkins, a senior faculty member at the Poynter Institute for Media Studies, told the Associated Press that news outlets and other websites can cause harm by overusing mug shots, but said whittling access to them is an “overreaction.” The responsibility should be on journalists to use open records with sensitivity, he said, including mug shots.
“The very tenets that the public rely on to be able to understand what’s going on in government are the very tenets that are the most threatened when legislatures start considering closing down the public records,” Tompkins said.
Collin Williams spoke in support of the bill stating that news agencies have “time and again” demonstrated bias when posting booking photos and release a greater number of photos depicting minorities.
Another proponent of the bill, Steven Burton with the Utah Association of Criminal Defense Lawyers, said during the meeting that many of the individuals who’s cases are dismissed have a difficult time having their mugshot removed from the internet, and at times it is impossible. He added that many of the sites where the photos are posted operate outside of the United States, so they are not required to abide by U.S. law.
Marc Sternfield, news director for Fox 13 Utah, said he opposes the bill, which is really not about whether the mug shot can be released, he said, but about whether the public is allowed to see a mugshot. He also said that news agencies are not in the business of posting mugshots to make money or for popularity but to add transparency to the criminal justice system in the country and protect the public.
Moreover, Sternfield said, the release of a booking photo can even serve to protect minorities by demonstrating if there is a disparity in the number of minorities being arrested.
St. George News has also jostled with whether or not to release a booking photo, taking into account public outcry in either direction.
One email from a reader posited that posting a booking photo is similar to playing “judge, jury and executioner.” Others have publicly commented that excluding a photo does little to protect the public if they no have reliable way to identify a suspect.
Sentiments similar to what was discussed during the senate committee meeting were included in information provided by the Libertas Institute, which states the bill is designed to “ensure that when a booking photo is released, the person is actually convicted as guilty by the courts, not just in the court of public opinion which has the potential to ruin a person’s life forever.”
The bill passed the House of Representatives 69-5 on Thursday and has had its first reading by the Senate.
The Associated Press contributed to this story.
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