Humiliation without due process is no laughing matter
Every year, more than 14 million people are arrested in the United States—and you’ve probably seen half of them. On the web, in newspapers, and over the airwaves, the mug shot is king, the signature form of narrative in the Twitter Age. What else communicates so much specificity and mystery so concisely? What else packs so much into a single image: humor, tragedy, unparalleled guidance on which neck tattoos to avoid?
An ever-growing number of law enforcement agencies and media outlets are happy to capitalize on our voyeuristic interest. If you want to know which city has cuter hookers, St. Paul or Peoria, their official city websites regularly publish mug shots of recently arrested prostitutes and johns. (St. Paul wins by a nose.) If you’d like to see who’s doing most of the drunk driving or shoplifting on Long Island, Newsday.com now maintains an extensive gallery of local arrestees.
Specialized sites such as MugShots.com and TheSmokingGun.com curate their collections with a more discerning eye, featuring only the famous, or those with defiantly unrepentant hair, or those who, in addition to all the usual traumas and humiliations that come with arrest, have the misfortune of being heckled by their own clothing during their mug shot sessions. Smile, grim-looking sexual predator in the World’s Greatest Dad T-shirt: You’re about to become famous!
Before we had driver’s licenses and fingerprint files, mug shots served to establish an individual’s identity. They’re still used to identify, but now we also want them to punish, deter, and entertain—and, unfortunately, they do such a good job of the latter that we’ve been indifferent to the ways they short-circuit due process. While we’re gawking at the haunted eyes of a Midwestern meth freak or the haunted hair of Nick Nolte, cops across America are using virtual rogues’ galleries to normalize the idea that the government has the right to punish you without bothering to convict you of a crime.
In the crowning example of mug shot proliferation, the past decade has seen the creation of numerous ink-on-wood-pulp newspapers devoted exclusively to the form, with names like Gotch-ya!, Busted, Cellmates, and the Slammer. They’re typically founded by undercapitalized entrepreneurs with little or no prior experience in the newspaper business, and usually are distributed at gas stations, liquor stores, and corner markets in the sort of neighborhoods more likely to be featured on Cops than on HGTV. They go for a dollar apiece, and at a time when traditional newspapers can barely give their products away, they’re selling like hotcakes. What informed citizen isn’t interested in knowing exactly who’s getting arrested in his neighborhood, and for what?
Thanks to those 14 million annual arrestees, there is plenty of room for these newspapers to grow. But are all mug shots fit to print? Public shaming may represent a cost-effective alternative to traditional forms of sentencing, and as public shaming goes, having your mug shot appear on a police department website actually sounds a lot more agreeable than, say, standing outside a Walgreen’s with a sign identifying you as a shoplifter.
If you do end up in front of that Walgreen’s, however, you’ve also spent some time in front of a judge or jury, who ultimately found you guilty. With mug shots, that’s not necessarily the case. The city of St. Paul, Minnesota, which started publishing photographs of prostitution arrestees in print in the 1980s and brought its operation to the web in 1997, is regarded as the pioneer of online public humiliation. Following its lead, an ever-expanding list of law enforcement agencies now post mug shots of the people they arrest—but don’t necessarily convict—in an explicit effort to deter crime.
In general, mug shots have always carried the heavy suggestion of guilt, as if getting caught in the act of being arrested is tantamount to getting caught in the act of committing a crime. It isn’t, though, and that’s one reason why, until about 10 years ago, many law enforcement agencies were reluctant to release mug shots to the press or the public, unless prompted by a Freedom of Information Act request or, in extreme cases, a lawsuit. In the Internet era, that has changed radically. In 1996 the Peoria, Illinois, police department refused to grant access to its mug shots until the city was sued by a local attorney who wanted to publish photos of people who’d been arrested for soliciting prostitutes. By 2005 the department was publishing photos of arrested johns and prostitutes itself, on the city’s official website.
Like most of these sites, Peoria’s is careful to include a disclaimer that the individuals depicted on it are “presumed innocent until proven guilty in a court of law.” But if there’s a chance that the people on display there haven’t committed a crime, why are they being punished? As soon as a law enforcement agency presents its online rogues’ gallery as a form of deterrence, it transforms the pictures into a form of punishment as well. If appearing in this context is a fate so unpleasant that it can persuade other people to avoid engaging in illicit behavior, then surely it constitutes a penalty. And it’s a penalty that’s being applied without the hassle of due process.
We tend to overlook this fact because, frankly, it spoils the mood. The presumption of guilt makes it easier to justify laughing at 23-going-on-zombie crack whores and bug-eyed misfits sporting felony-caliber mullets. They deserve the derision they get—they’re criminals! But the joke is really on us. As law enforcement agencies expand their powers of surveillance, as they encourage us to think of punishment without due process as standard operating procedure, we not only tolerate it, we click and click and ask for more. If America’s citizenry were more uniformly presentable, and its mug shots correspondingly less entertaining, we might protest these developments more strongly. Instead, we simply laugh at the latest person guilty of wearing a cow costume while being arrested, then pass along the link to our friends.
Greg Beato writes regularly for the Smart Set, Las Vegas Weekly, and Reason, where he is a contributing editor. Excerpted from Reason(April 2009), a libertarian magazine of politics and culture; www.reason.com.