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The Issue at Hand

Recently Governor Cuomo proposed a controversial piece of legislation along with his 2019-2020 budget—a so-called mugshot ban. His proposal recommended locking down mugshots as a means of stymying an ongoing extortionist industry that leverages public records against defendants before they’ve had their day in court, thereby denying them due process in the interim and in the long run preventing meaningful criminal justice reforms, such as expungement, ban-the-box, and prisoner reentry programs, from achieving their intended goals.

The Media’s Framing

Several editorials were published upon the release of the proposal that suggested its intent was to censor the free press, roll back freedom of information laws, and cloak government processes in secrecy. In fact, some mockery was made of Robert Freeman, Executive Director of the New York State Committee on Open Government, for suggesting that “we don’t have secret arrests in this country.”[1]

Regardless of the truth of Freeman’s sentiment, it seems a dubious claim at best to suggest the press ensures habeas corpus[2]by publishing mugshots and booking information. It also seems doubtful that publishing misdemeanor arrests is done in furtherance of promoting public safety[3] or keeping vigil against powerful figures.[4] Finally, it’s disingenuous to suggest the accused lose their Fifth and Fourteenth Amendment rights upon arrest.[5] The debate has also been framed in terms of “free speech versus privacy,”[6] where free speech entails the right to know and privacy merely the right to secure oneself against these kind of intrusions.

The Media’s Framing Misses the Complexity of the Issue

However, such a stark dichotomy doesn’t do justice to the complexity of the issue. As Tracie Gardner, Vice President of Policy Advocacy at Legal Action Center, points out in her own rebuttal to the onslaught of naysaying editorials: these practices “perpetuate unjust stigma and discrimination, particularly for low-income individuals and people of color who are disproportionately arrested in our country.”[7] In other words, what Rutgers University sociologist Sarah Lageson has dubbed “digital punishment”[8] has a disparate impact on vulnerable populations. Vulnerable populations can be irrevocably harmed as consumers in important sectors across the economy and suffer disproportionate social stigmatization for minor or victimless crimes.[9]

At-risk populations shouldn’t face additional hurtles to securing employment, housing, schooling, or credit, nor should they suffer undue reputational harm and trauma as a collateral consequence of petty crime. It fosters healing and communal strength when we shepherd our strays back into the herd. Restorative practices give our citizens the requisite slack to adjust after an infraction and at the same time promote engagement between the community and former offenders to assuage the pain and injustice an infraction might have caused.[10]

Cuomo’s Proposal Is a Meaningful Solution

Cuomo’s proposal will allow the accused to have their constitutional guarantee to due process, save the innocent from a potential lifetime stigma, and further the goals of social justice. Additionally, the proposed legislation opens an important conversation about what constitutes responsible and ethical journalism in the age of the Internet, namely whether the press should honor expungements and help to furnish relief to those seeking second chances by unarchiving invasive material that has been retracted by the state.[11] Finally, if tailored correctly, Cuomo’s proposal will allow us to continue critiquing the powerful and promoting public safety while maintaining an appropriate balance between free speech and our concern for dignity so that redemption may be had in a day and age so-readily willing to write off those bearing scarlet letters as nothing more than toxic assets.