Branded by a mugshot in the digital age

In May, California Attorney General Xavier Becerra announced charges against four out-of-state defendants for alleged extortion, money laundering and identity theft. The individuals in question—Sahar Sarid, Kishore Vidya Bhavnanie, Thomas Keesee and David Usdan—are owner-operators of Mugshots.com, which mines police department websites for booking photos, names and charges, then reposts the information and charges victims exorbitant fees to take it down.

Such information is easily up for grabs. Mugshots are taken upon arrest, not conviction, and from that point forward the details of the arrest become a matter of public record. An unflattering photo taken during one of the lowest moments of a person’s life may then appear in newspapers, on TV or on social media to be seen by friends, family and coworkers.

In the digital era, the photo can circulate forever, effectively preventing the individual from turning a new leaf and finding a job or housing. It doesn’t matter whether police drop the charges or made the arrest erroneously. It doesn’t matter whether the arrest leads to a conviction for a petty offense or a serious crime. In many cases, the mugshot lives on, amounting to a scarlet letter or a permanent brand.

It happened to a Sonoma man identified as “Jessie T.” in an affidavit filed in Los Angeles Superior Court as part of the Mugshots.com case. In September 2013, he was arrested and booked into the Sonoma County Jail. Police fingerprinted him and took his photo, but released him several days later without bringing charges, citing insufficient evidence. His arrest wasn’t even an official arrest; it was considered a detention only.

Jessie T. told investigators with the state that he applied to dozens of jobs in the construction, electrical and manufacturing fields following his arrest, but received zero responses. A possible explanation came when his friend called to say she was surprised to find out he had been arrested, and asked whether he was in jail.

“Jessie T. was astounded and embarrassed and asked her what she was talking about,” the affidavit reads. “She told him to Google his name.”

He found his photo, along with his full name, address and the charge for which he was arrested on Mugshots.com. Nowhere did it mention that the case was dropped, or that he was not convicted of a crime. There was, however, a link to another website: Unpublisharrest.com. That page demanded $399 to delete the posting. Jessie T. called the provided phone number several times and attempted to explain that he could prove his innocence, but whoever answered kept hanging up, the affidavit states.

Eventually he got a call back from an unlisted number. He turned on his recorder. According to the affidavit, this is how the conversation went:

Jessie T.: “Hello.”

Unknown man: “This third time [sic] tell you fucking bitch we’ll never answer your calls again you’ve been permanently published fucking faggot bitch.”

Jessie: “Hey, I’d like my stuff removed.”

Another hang-up.

Unable to find work, Jessie T. was forced to explain his internet mugshot numerous times to family and friends. He believes it even hurt his romantic life: After a new relationship with a woman abruptly ended without explanation, he suspected it was because of the mugshot.

Jessie T. told the investigator “he has been humiliated and it has ruined any reputation he may have had.”

Mark Fujiwara knows all about ruined reputations. He is a communications coordinator for the San Francisco-based Legal Services for Prisoners with Children, or LSPC, an organization that advocates for sweeping criminal justice reforms, including to “release incarcerated people, to restore human and civil rights and to reunify families and communities.”

In his experience, a mugshot can be as personally damaging as an actual conviction.

“Once somebody sees your mugshot, you’re automatically a criminal, a bad person. You must be bad, because the cops got you,” he said, laughing bitterly. “But you’re still a person and you need a job, food and housing.”

Mugshot exploitation websites use those basic needs as leverage, he says.

“It’s a whole industry, and they make bank,” Fujiwara said. “They say, ‘These are public documents, we can do whatever we want with them.’ They meta-tag them so they pop up during people’s Google searches and to get them taken down, you have to pay a fee. Usually, one company will have five or six different websites, so they’ll take the mugshot down from one and leave it up on another.”

In 2014, Gov. Jerry Brown signed Senate Bill 1027, prohibiting mugshot exploitation websites, but the law is difficult to enforce—particularly across state lines.

In the case of Mugshots.com, the owners have been extradited to California and await arraignment later this month. According to a media release, the defendants allegedly extorted some $64,000 from 175 California residents over a three-year period, and about $2.4 million from more than 5,000 people nationwide.

The AG’s office declined to comment on the active case.

To Fujiwara, mugshot exploitation is just another—albeit illegal—aspect of the for-profit criminal justice system, right alongside bail bonds, background checks and private prisons. Websites such as Mugshots.com are distinct, however, because they snare people like Jessie T., who are innocent in the eyes of the law.

In any case, a mugshot doesn’t mean the individual was convicted of a crime. And if they were found guilty, it doesn’t necessarily follow that justice was served. Case in point:

People of color, as well as gay, lesbian and transgender people, are disproportionately represented in a recently digitized archive of Sacramento-area mugshots dating from 1860 to 1940.

Some of the crimes sound old-timey, but befitting of Sacramento’s beginnings as a gold-rush town: safe-cracking, horse thievery and stagecoach robbery. However, what really intrigues Kim Hayden, an archivist for the Center for Sacramento History, isn’t why people were arrested, but who was arrested.

“It’s interesting to see who was perpetrating the crimes,” she said, “or at the very least who was getting arrested for them. … You’ve got a lot of Chinese laborers and immigrants getting arrested and prosecuted more than white people. It’s just the same as you see today, so they are interesting from a sociological research perspective.”

In another parallel, the most impoverished residents were among those most frequently incarcerated.

“There were a lot of arrests for vagrancy and drunk in public, just like today,” she said. “A lot of people were arrested for vagrancy without a real reason. They just wanted to get them out of town.”

Historical preservation was the main impetus behind the effort to digitize the mugbooks of local law enforcement agencies. The books themselves are in fragile condition. As a window to the past the records have high historical value. But Hayden recognizes that some people would prefer not to dredge up their family history. For privacy reasons, Hayden says she would be ethically concerned about publishing more recent arrest photos.

“We do have records from people who are still alive,” she said. “We just don’t post them online for everyone to see.”

Scrolling through the social media feeds of local law enforcement agencies, it’s evident that many of the same types of marginalized people are getting arrested today. For example, the Facebook page for Sacramento State University’s Police Department mostly posts mugshots of seemingly homeless people, people with mental illnesses or substance-abuse issues, and people of color, most of whom have been accused of petty property crimes and quality-of-life offenses, such as bike theft, public intoxication, illegal camping and drug-related crimes.

Sacramento State Police Chief Mark Iwasa didn’t immediately make himself available for an interview.

The Sacramento Police Department, on the other hand, posts mugshots on Facebook only when the associated crimes are of high public interest—involving homicides, sexual assaults, fatal hit-and-runs and the like—or when they serve a greater investigative purpose, says Sgt. Vance Chandler, a department spokesperson.

“We feel that these serious crimes are of great public interest to our community and we want to provide the facts,” he said. “You could say, ‘They haven’t been convicted.’ Well, the fact is that they’ve been arrested and we want to be transparent about who we have. We believe it’s important that the community gets it from us versus other sources.”

Like Chandler and Hayden, Fujiwara believes there is a clear public benefit in knowing who’s being arrested. But in this age of sentencing reform, he argues that personal records should be sealed or expunged upon the completion of a sentence; if charges are dropped; or an arrest was made due to police error. Otherwise, mugshots will continue sending weighted messages about who deserves a second chance.

“There’s this underlying assumption that you deserve to have your mugshot represent you for the rest of your life,” he said. “It’s crap.” Ω