Cat mugs, belonging to Whitey Bulger's girlfriend.

Photographer: Scott Eisen/Bloomberg

Democracy Has Its Costs, Including Your Mug Shot

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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A federal appeals court has ruled that the public has no right to see arrestees’ mug shots, reversing a ruling that has been in place for 20 years. The case pits the individual’s interest in privacy against the public’s interest in getting all the information it can about an arrest, which is the quintessential public government act. My heart says the court got it right. But my head says that in a functioning democracy, government actions need to be open to scrutiny, even at the cost of permanent embarrassment to some of the government’s targets.

The case was decided by all the members of the U.S. Court of Appeals for the 6th Circuit, sitting to reconsider their own precedent. In 1996, the court interpreted the Freedom of Information Act to require disclosure of booking photos. The ruling applied to all federal arrests in Michigan, Ohio, Kentucky and Tennessee, the court’s jurisdiction. Because FOIA is a law that affects the federal government only, the court’s ruling didn’t apply to local or state police.

At that time, the 6th Circuit was an outlier -- the only one of the circuits to require such disclosures. The U.S. Marshals Service, which handles federal arrests, complied with the court’s ruling in that jurisdiction while refusing to release booking photos elsewhere. In practice, this meant that if the news media wanted the booking photo of a federal arrestee from somewhere else -- such as Bernard Madoff, arrested in New York -- all they had to do was make the request in the 6th Circuit. Thus, the 6th Circuit rule actually applied to the whole country.

That changed in 2012. After two other appeals courts ruled that FOIA didn’t require the disclosure, the U.S. Marshals Service announced it wasn’t going to release the photos anywhere -- including within the 6th Circuit. That was a bold move, because it essentially flouted the 6th Circuit’s rule. It was also a signal to the 6th Circuit to reconsider the issue.

The judges split 9-7, with the majority opinion noting that FOIA contains an exception allowing the government not to disclose information that is both gathered for law enforcement purposes and also “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” It held that booking photos were an unwarranted invasion of privacy, describing them as “embarrassing and humiliating.” It added that the public so associates booking photos with guilt that courts generally prohibit juries from seeing them.

Instinctively, I feel the logic of the court’s decision. The mug shot is a particularly nasty genre. Taken in theory to identify the arrestee, the mug shot quickly takes on a life of its own, branding the person as a wrongdoer.

But of course arrests aren't the same as convictions. We all can think of examples of people arrested and subsequently exonerated. I saw that happen to a friend of mine -- after his mug shot was plastered all over the tabloids. It was wrong and it felt unjust. And in this day and age of internet permanence, a mug shot can follow an arrestee around forever.

Yet this emotional response needs to be mitigated by the underlying interests embodied in FOIA -- namely, the necessity in a democracy of monitoring what the government does. The dissent argued that “Open government is too dear a cost to pay for the mirage of privacy that the majority has to offer.” On reflection, that view is probably correct.

Start with the nature of an arrest itself, the most basic mechanism of government control over the individual. The government shouldn’t be able to deflect or shield attention from arrests it has made.

It’s not just a matter of checking the mug shot to see if the arrestee has been beaten, as the dissent suggested. A photo also draws much more public attention than a quiet news story does. Without access to the booking photo, it’s harder for the media to tell the public that someone has been arrested.

Then there’s the “mirage” problem. There’s no law requiring the government to keep mug shots private. Notwithstanding the U.S. marshals’ current voluntary policy, the government could choose to release booking photos when it serves its interests. Local law enforcement does that on occasion -- to advertise that it’s made an arrest, and maybe even to get the jury pool thinking about guilt.

FOIA only governs what the government must disclose. It’s silent about what the government may choose to disclose voluntarily, to serve its own interest. The result is that the government has the unilateral choice whether to release embarrassing photos. Requiring disclosure would actually weaken the government’s hand.

Last, there’s the undeniable fact that booking photos have become an important form of historical evidence and indeed of unintentional artistic expression. Think of famous mug shots like those of the young Frank Sinatra and Mick Jagger. Or consider the iconic image of O.J. Simpson that appeared on the covers of both Time and Newsweek, with the color darkened in the former.

Like it or not, the mug shot is part of American consciousness. That sort of document should be public in a democracy, notwithstanding our genuine feelings to the contrary.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net