Booking photographs of criminal suspects could no longer be made public by state corrections officials under a bill advanced by the House Judiciary Committee.
As the internet search engines have made it possible to come across mugshots years after a criminal charge, some citizens who have experienced arrests have complained that those records have made it challenging to put the past behind or navigate the job market. Advocates for the bill say they have those people in mind.
“It’ll have repercussions for the rest of their life,” said Delegate Chris Pritt, R-Kanawha.
West Virginia media organizations and some delegates have countered that mugshots of arrests represent community news and that prohibiting access amounts to prior restraint. Delegates critical of the bill also contended mugshots are a public safety tool as well as a kind of protection against secret arrests.
House Bill 4621 was considered and advanced Tuesday evening by the House Judiciary Committee. It now goes to the full House of Delegates.
The bill says “photographs of a person for identification purposes taken by the Division of Corrections and Rehabilitation or any other county or state jail facility upon booking into the facility are not public records and shall not be disclosed to the public.”
There are some exceptions, such as cases of fugitives where releasing a photo could help identify a fleeing suspect or if officials determine the person is an imminent threat. Mugshots can also be released after a conviction or a guilty plea.
But, generally, the bill says “these booking photographs shall not be published or disseminated to the public.”
The bill has specific directions for outlets that publish mugshots to the internet with the main goal of seeking payment for taking them down. Those outlets have to take down the photographs upon request for people who have been found not guilty or had their charge dropped.
The bill defines and differentiates news outlets from those remove -for-pay sites. Nevertheless, news outlets would not be able to publish booking photographs if they are no longer made public.
Delegate Brandon Steele, R-Raleigh, argued against removing booking photos from public access. Steele, who runs the Lootpress news and opinion website, advocated for changing the bill to maintain requirements for pay-to-remove websites but dropping aspects that would prevent jail officials from making mugshots public.
He said the mugshots are a tool for the public and that keeping them from public view constitutes prior restraint.
“When we have people dying left and right in this state in our jails, I think we need to let the public know who’s in there,” Steele said. “This suppresses the right of the press to report on who your government is taking into custody. Is it embarrassing to get arrested? Yes. It is embarrassing to get arrested.
“Now we’re just not going to tell people who we’re arresting? That makes absolutely no sense to me.”
Delegate Geoff Foster, R-Putnam, disagreed.
“The press still has the ability to publish anything they want, any picture they’ve taken. They just don’t have access to the government documents, which is this photo,” Foster said.
Delegate Rick Hillenbrand, R-Hampshire, asked Steele when the 1st Amendment was written and if that was prior to widespread use of photography. He seemed to be asking if the 1st Amendment would actually apply to photographs.
“Were there any 1st Amendment issues that you’re aware of prior to the invention of the photograph of not posting photographs?” Hillenbrand asked.
“Would you agree with me that if not posting the photograph prior to the existence of the photograph wasn’t an issue, why would it be an issue now?”
Hillenbrand concluded, “I don’t see the inability of having that photograph being a violation of the 1st Amendment.”
West Virginia MetroNews was one of the media organizations objecting to the bill’s restraints on booking photographs.
“Our stations and our network, each have websites that allows citizens to read, watch and listen to pertinent news coverage according to their schedules,” MetroNews President George Pelletier wrote in a memo to committee leaders.
“Within that coverage, we also use mugshots. We also utilize such content, when authorities are searching for people who are either fugitives, or persons of interest. It is our belief that limiting this use of mugshots would not be a good idea.”