Whether it’s on the TV news or your local police department’s Facebook page, we all know what a “mug shot” looks like; it’s the photo that’s taken of someone after they are arrested. But just because someone has been arrested doesn’t mean they have been convicted of a crime, so some feel it is unfair to release these embarrassing post-arrest photos where potential employers and others can see them. HB 125, a bill being considered by the New Hampshire Legislature, would prohibit law enforcement officers from publicly disseminating these post-arrest photos with limited exceptions.
What’s in the bill?
HB 125, as it currently reads, says that post-arrest photos taken by law enforcement officers won’t be subject to New Hampshire’s right-to-know law unless the person is actually convicted of the crime. In other words, the photos won’t be freely accessible to the public.
Officers could publish mug shots to get help from the public finding a suspect—for example, if the person fails to show up for court or is suspected of committing another crime while on bail. Officers must first exhaust non-public methods of finding the person before resorting to this, however.
Law enforcement would also be allowed to release a post-arrest photo if the suspect presents an immediate danger to the public and the release of the photo is necessary for public safety. A person could also request to have their photo released if they chose.
Lastly, law enforcement officers would be required to keep a record of all such photos they released and for what purpose.
The law wouldn’t stop officers from showing suspect photos to witnesses or other law enforcement agencies as part of an investigation, nor would it impact agencies from using photos of convicted, registered sex offenders as part of the sex offender registry system.
Protecting the privacy of citizens
At the Senate hearing for this bill on April 27, a number of people got up to speak—some in favor and some against the bill. Those who spoke in favor included a representative of the ACLU, some New Hampshire House members, and an advocate for the rights of sex workers. Proponents argued that Granite Staters have a right to privacy and are innocent until proven guilty. They point out that police departments often post mug shots on Facebook with humorous captions, publicly shaming people who have not been convicted of a crime. Proponents told personal stories of people who had suffered such treatment despite ultimately being found innocent.
One woman who testified also pointed out that these photos can make it harder for those with a criminal history—she gave the example of sex workers—to get legal jobs and more fully reenter society, since employers often Google candidates before hiring them. Proponents used terms such as “the stigma of assumed guilt” and “a digital scarlet letter” to describe these post-arrest photos being posted online.
The need for police transparency
Those who spoke in opposition included the Union Leader’s president and publisher Brendan McQuaid, a representative of the NH Association of Broadcasters, the Manchester Chief of Police, and more. Those who spoke on behalf of media organizations argued that the public has a right to know who the police take into custody. They worried that the bill represented an erosion of New Hampshire’s right-to-know law. Chief Allen Aldenberg of the Association of Chiefs of Police argued that the need for transparency in law enforcement is paramount.
Several people pointed out that there are methods of having such embarrassing photos eventually taken down. They feel a more carefully targeted bill is necessary to properly balance the need for transparency against individuals’ right to privacy.
It was also mentioned that similar conversations are taking place on the federal level, so it may be best not to muddy the waters with a state bill.
Update 5/28/21: The Senate voted to "rerefer" HB 125 to the Senate Judiciary Committee for more work.