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Lawmakers debate whether mostly banning mugshots violates the First Amendment

By Henry Culvyhouse
Mountain State Spotlight

Editor’s Note: This story originally appeared in the Statehouse Spotlight newsletter published by Mountain State Spotlight. Get coverage of the legislative session delivered to your email inbox Monday – Thursday; sign up for the free newsletter at mountainstatespotlight.org/newsletter

Lawmakers on the House Judiciary got into the very bones of the U.S. Constitution on Wednesday over a bill largely banning mugshots and allowing people to sue websites that publish them for profit.

Right now, anyone who is held at one of the state’s 10 regional jails has their mugshot posted on the Division of Rehabilitation and Corrections website. The problem, according to supporters of the bill, is third-party websites will pull those mugs off the site and post on their own — and a defendant has to pay to take the mugshot down. 

To put the brakes on it, the bill would prohibit the public release of booking photos for pretrial defendants, unless it is ordered released by a judge or in the case of a fugitive or someone considered a danger to the public. It would also allow people to request third-party websites remove their mugshot and sue if the website didn’t.

As introduced, the bill added just one line to the current code dealing with booking photographs. But when it was discussed in committee on Wednesday, a “committee substitute” — essentially a full rewrite of the bill — had expanded that one line into nearly three new pages of text. 

Del. Brandon Steele, R-Raleigh, questioned whether the law would violate the First Amendment. Steele, an attorney, quizzed the Judiciary Committee lawyer at length, asking “if there is a less restrictive alternative” such as a disclaimer stating “presumed innocent until proven guilty.” 

Steele owns Lootpress, an online news publication that covers southern West Virginia and frequently publishes mugshots. But he also explained that he keeps a photo on his phone of a man who threatened him, so that he would recognize him in the future. 

Del. Joey Garcia, D-Monogalia, said while he uses the mugshots to see what his clients look like prior to visiting them at the jail, that doesn’t outweigh how “prejudicial” those can be for the legal process. 

“I talk to my clients and they have a lot of shame about those mugshots,” he said. 

But for Del. Rick Hillenbrand, R-Mineral, he’s experienced first hand the shame of having a picture floating around the Internet. He said a trail camera photograph implicated him as a trespasser, and despite having the case tossed out, it still haunts him. 

“Every time I post something on Facebook, someone always brings it up,” he said. 

Del. Mark Zatezalo, R-Hancock, said this must be a new issue, because he’s never seen mugshots in the newspaper. Long before mugshot websites were a thing, one could buy a paper filled with nothing but mugshots at the local gas station called WV Locked Up. 

The bill passed on a voice vote and moves to the floor. 

Reach reporter Henry Culyhouse at henry@mountainstatespotlight.org.

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