Trump's Georgia Case Should Provide Impetus for Reining in Public Mugshots
While Americans exhibit increasingly divergent viewpoints, the visage of former President Donald Trump remains universally recognizable. Whether one has grown weary of his presence or eagerly anticipates his every utterance, the public distribution of his mugshot following his indictment in Fulton County would do nothing to advance public safety or justice.
Fulton County Sheriff Pat Labat said that, as with every other defendant, authorities will snap a mugshot of Trump at his expected arraignment. But thanks to reforms state lawmakers adopted in 2018, the mugshot won’t be posted on a government website and the policy prohibits fulfilling requests for mugshots from any private entity publishes them and then demands a fee from the individual to remove their mugshot. Nonetheless, Trump’s Georgia mugshot is subject to being released upon request to media outlets and any other entity that does not fall within this category.
During his three previous arraignments, Trump did not have a mugshot taken, which is unusual for people facing criminal charges. In some states, publicly distributed mugshots are required of all defendants and there are no restrictions on subsequent distribution, including for purposes of generating a profit. However, there is discretion in the federal system, and New York—the site of another Trump indictment—enacted a trailblazing law restricting public mugshot dissemination to cases where the defendant is a fugitive or where there is another “legitimate law enforcement purpose.”
Despite the Trump campaign's utilization of a fabricated mugshot for merchandise promotion, publicizing a mugshot of the former President would be gratuitous. Indeed, for several reasons, this episode should prompt Georgia and states across the nation to adopt an approach like New York’s that makes publicized mugshots the exception rather than the rule.
First and foremost, a considerable fraction of those apprehended as suspects never confront charges or convictions. A report in March 2023, for example, disclosed that the U.S. Attorney's Office in Washington, D.C., declined to prosecute over two-thirds of detained individuals. This pattern predominantly arises from the inability of authorities to substantiate that the correct person was detained, owing to issues concerning forensics, camera footage, officer credibility or other factors. Some who are arrested but never convicted are not necessarily innocent. Nevertheless, it remains unjust to burden them with a public mugshot, which can easily morph into a digital "scarlet letter."
For the vast majority of the 330 million Americans who have not occupied the presidential office and do not command throngs of devoted followers, the stakes are more palpable and critical than for Trump. Most people lack a prominent public profile, which means a mugshot would likely be the initial or sole item a potential employer or landlord would find through an online search. Though the concept of mugshots dates back to the 1840s, the ubiquity of the internet has dramatically amplified the global reach and negative potency of such images.
Restricting the dissemination of mugshots does not compromise public safety. Furthermore, the majority of arrests pertain to minor infractions, such as low-level drug possession, driving with a suspended license or warrants for unpaid fines and fees. A mere 5 percent pertain to violent crimes.
Moreover, if a suspect is too dangerous to be released under any conditions, the optimal solution is to deny bail following expedited proceedings conducted with competent legal representation for the accused. Also, mugshot reforms do not preclude law enforcement from divulging the defendant's name, identifying details, or even images beyond mugshots. These could encompass visuals extracted from cameras allegedly capturing the individual engaged in criminal activities.
Another compelling rationale for abstaining from the widespread distribution of mugshots is the potential for exploitation by for-profit websites, even if the images are eventually purged from government platforms. One such website has purportedly charged over 5,703 individuals for the removal of their mugshots, thereby amassing roughly $2.4 million in profits.
Although certain states, including Georgia and Texas, have enacted laws to combat such profiteering, constitutional challenges rooted in free speech law hinder efforts to restrict private entities from disseminating content originally distributed by a government body as public data. Furthermore, the boundless nature of online sharing renders the endeavor of retracting such content a daunting task.
Though Georgia’s law designed to prevent mugshots from being used to blackmail defendants is welcome, the Peach state and other states should go further. This means allowing law enforcement agencies to dispense with the mugshot when a suitable photo of the defendant is already available and, as a 2023 proposal in North Carolina would have done, providing that any mugshot that is taken is not public information unless a defendant disappears or there is another public safety justification.
Legal proceedings involving President Trump continue to garner outsized attention; however, every person should be shielded by laws that avert stigmatization prior to their day in court. Trump promised to drain the swamp and, if his cases focus attention on the need for mugshot reform, it would indeed help many Americans salvage their identities from being dragged through the mud.
Marc A. Levin, Esq. is Chief Policy Counsel for the Council on Criminal Justice and can be reached at mlevin@counciloncj.org and on Twitter at @marcalevin. Khalil A. Cumberbatch is Director of Strategic Partnerships at the Council and can be reached at khalil@counciloncj.org and on Twitter at @KhaCumberbatch.
