The DoJ thinks federal arrest mug shots should remain secret. Should they?

The Supreme Court is hearing one of those cases that uncovers something interesting which I didn’t even know was a thing. If you are arrested (pretty much anywhere) and taken in to be booked, they take a mug shot of you. We’ve all seen them in the newspapers and on television and they’re never particularly flattering. But those are pictures taken from arrests at the state and local level. Unbeknownst to me, if you are booked by the feds they don’t release your mug shot to the public. This apparently became a bone of contention for the Detroit Free Press who wanted to get hold of the mug shots of four police officers who were arrested a few years ago so they could publish them. The feds refused and the case went to court, now reaching the top levels. Thus far the Department of Justice isn’t backing down. (USA Today)

The Justice Department won’t budge from its position that federal mug shots of criminals should be kept secret, arguing in a U.S. Supreme Court brief that jailhouse photos are “embarrassing, nonpublic” moments that add to defendants’ grief.

The agency clarified its stance as part of an ongoing legal battle over whether federal law enforcement, like many states, should be required to hand over booking photos.

“Mug shots reveal much more than the sterile fact of arrest and booking,” the Justice Department wrote in a Supreme Court brief filed this month. “They graphically depict individuals in the embarrassing, nonpublic moment of their processing into the criminal justice system.”

Since when did law enforcement become so particular over whether or not they embarrass somebody who’s been taken in and charged with a crime? The municipal cops and state police certainly don’t seem to have any such compunctions in most cases. But I suppose the real question for the court is what public interest is being served by either releasing or withholding them. It doesn’t sound like something that would be situational, so a decision on this might change how such photos are handled across the nation.

I suppose I’m not entirely seeing the argument from either side here, though to be honest I’d never really considered it. Arrest records and the results of trials should obviously be in the public record, but… pictures? If the person is already behind bars, does the public need a photo of them, assuming there weren’t already some out there? In the case of those four cops it wasn’t any great trick for the Detroit Free Press to find other pictures of them so it seems clear that they probably just wanted the more humiliating shot which would work as clickbait. But beyond that do the mugshots serve any public purpose? The plaintiffs in the case are making the argument that some other victim of a different crime or an additional witness might come forward if they see the picture in the press. I suppose that’s possible, but is it enough justification?

On the flip side of the coin, what’s the initial argument to deny releasing mug shots for everyone? Sure, it’s embarrassing, but so is being arrested in the first place. As long as the pictures are taken at the law enforcement office and not in your home it doesn’t sound like a privacy issue to me. Perhaps it could be argued that an arrest is not a conviction and if the suspect is eventually exonerated the pictures out in the public record would follow them around forever carrying an unjustified negative connotation.

It seems to me that the second argument (the one against releasing them) is slightly stronger than the first. The number of times that no other picture of a person could ever be found besides their mug shot has to be vanishingly small these days. I’m still not totally married to the idea either way, but that’s at least my first gut reaction.

David Strom 10:01 PM on September 26, 2022