Now and again, readers draw my attention to particular concerns. I like these emails. They beat the heck out of the hate mail I sometimes get, and I always learn something new. Recently, I got a note from a reader in Florida, who lamented that his local sheriff publishes mugshots of juveniles who have been charged with a felony. The same week, I got another note from a reader in Texas, who complained that many prison cells in the Lone Star State become deadly hotboxes in the summer heat. They wondered if these were topics I might want to address.
At first blush, these two problems might appear unconnected, but in fact they are two of the many ugly faces of an unforgiving society.
Let’s start with the mugshot. I suppose everyone knows what they are, but just so we’re all on the same page, a mugshot is a picture of a person taken by law enforcement after arrest. But law enforcement does far more than take a picture. The police (or deputies at the jail) also record the person’s name, physical description, birthmarks, scars or tattoos, known aliases, gang affiliations, etc. The purpose of this procedure is to help law enforcement identify the person in the future. Not everyone who is arrested is photographed, but if they are, that’s a mugshot. Police in the United States have been creating mugshots for more than 150 years.
But if the purpose is future identification, we have to wonder why a law enforcement agency would routinely release mugshots to the public. I know what you’re thinking, and you’re right to think it: Releasing a picture might allow the public to take valuable action. Suppose someone is wanted in connection with a serious crime. Releasing their picture and sharing it widely—perhaps a still from a surveillance camera or a mugshot from a prior arrest—gives the public the chance to take precautions for their own safety and to alert police to a suspect’s whereabouts. Obviously, however, this doesn’t justify a routine policy of releasing a mugshot in every felony. Maybe it’s a good idea when there’s an imminent risk of public harm, but that happens very infrequently and certainly can’t justify a blanket policy.
Other people might point out that, as a general rule, arrest records in the United States are public documents. Though it varies from place to place, law enforcement will generally disclose arrest records to anyone who makes a proper request. And certainly, these records can provide useful public information. A potential homeowner might want to know, for instance, that the police are called every night to that biker bar down the street and that they arrest brawlers three nights out of four. But once again, the fact that an arrest record is public obviously doesn’t support a blanket policy of releasing every mugshot. Police record a lot of information that isn’t and shouldn’t be public. An arrestee’s social security number, for example, is off limits, and rightly so. To put it simply, the public doesn’t have the right or the need to know everything about an arrestee, and withholding a mugshot, as opposed to the mere fact of arrest, doesn’t violate any principles that favor open government.
All of this helps explain why many news outlets have stopped publishing mugshots. Even more important, a number of law enforcement agencies have stopped releasing them unless there is a special need, and some states have passed laws that prohibit the release of adult mugshots except under certain circumstances. In Utah, for instance, mugshots cannot be released until after conviction.
Prominent on the will-not-disclose list is the United States Department of Justice, which has withheld federal mugshots for many years. Explaining this policy, the Trump Justice Department wrote in 2017, “Mug shots reveal much more than the sterile fact of arrest and booking. They graphically depict individuals in the embarrassing, nonpublic moment of their processing into the criminal justice system. The adage that one picture is worth a thousand words is apt in this context: The visual depiction of the individual’s appearance at booking in a law-enforcement facility reflects a uniquely powerful and lasting image of what can be one of the most difficult episodes in an individual’s life.”
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But maybe the relevant question is not whether it does any good to release every mugshot but whether it does any harm. In other words, perhaps the burden should be on those who would keep the mugshot private. If it doesn’t do any harm and might in some cases do some good, why not err in favor of widespread disclosure? But it can do a great deal of harm. It stigmatizes the person as an outsider, an alien. Scholars have looked closely at stigmatization for many years and the research confirms what most of us would intuitively suspect: stigmatization makes people anticipate public shaming and ostracism, which in turn leads them to turn away from productive engagement with their community. To be sure, not everyone is affected equally by public shaming; some have a network of support or personal qualities that soften the blow. But for those pained by shaming, the stigma is self-fulfilling: once they are marked as an outsider, they anticipate being treated as an outsider and therefore become an outsider. For them, shaming is disintegrative.
And if what I have said is generally true for adults, it is even more the case for juveniles, which was what my correspondent asked about. Nearly since the memory of man runneth naught, proceedings in juvenile court have been conducted under a protective veil of anonymity. Justice William Rehnquist, certainly no friend of criminal defendants, considered this anonymity an interest “of the highest order,” and explained its motivation more than 40 years ago in terms that are no less true today:
It is a hallmark of our juvenile justice system in the United States that, virtually from its inception at the end of the last century, its proceedings have been conducted outside of the public’s full gaze and the youths brought before our juvenile courts have been shielded from publicity. This insistence on confidentiality is born of a tender concern for the welfare of the child, to hide his youthful errors and bury them in the graveyard of the forgotten past. The prohibition of publication of a juvenile’s name is designed to protect the young person from the stigma of his misconduct.
And of course, releasing a mugshot is even worse than releasing a juvenile’s name.
So, if a policy can’t be justified as a matter of public safety or transparent government, and if it works real harm to members of the community and is especially damning for juveniles, why adhere to it? I fear that those who support the policy consider it appropriate to brand the arrestee as an outsider, casting them beyond the circle of membership and impeding their reintegration into the community by rendering them a proper object of public humiliation and scorn. This is the veritable calling card of an unforgiving society. It marks someone as unworthy not because doing so is necessary to achieve some greater good, but to make them feel the sting of an angry and vengeful society by subjecting them to ridicule and ostracism. It transforms us-vs-them into official government policy. It’s wrong, plain and simple.
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Then there is the matter of the sweltering cell. This one is easier: No one should be roasted alive. This is hardly a new problem. Texas has long been excoriated for its correctional infernos. And while it is also a problem in some other states, an exhaustive study by The Intercept earlier this year shows that Texas leads the nation in superheated cells.
To the extent there is a rebuttal, people will remind us that prison is not supposed to be a Hilton. But I have never heard of a prisoner who confused the bars on his window and the locks on his door with room service and a day spa. People will also complain that they cannot afford air conditioning, so why should prisoners get it for free? The answer, of course, is that prisoners cannot otherwise escape the heat. They cannot, for instance, get to an air-conditioned shelter set up by the city. By depriving them of their liberty, the state assumes responsibility for their safety. That’s the bargain struck by a civilized society and by the Constitution. If the state makes it impossible for a person to fend for themselves, then the state has to fend for them. And finally, some people suppose that the purpose of prison is to make a person suffer. But this is simply mistaken; a person is not sent to prison to be punished some more; prison is the punishment. The loss of liberty is the penalty society imposes, and suffering atop that deprivation can only be justified by a separate transgression inside the prison walls.
Yet all these justifications are but different words for the same conceit: A human being in a prison cell is not one of us. Though we would recoil in horror if the same were done to a dog, we ignore the mistreatment of prisoners because we indulge the shameful belief they exist beyond the pale of human concern. This too is the signature of an unforgiving society. God forbid we see prisoners as the same child of the same God as all of us, for if we did, we would never allow their brutalization to endure.
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An unforgiving society is frightened and weak. It takes comfort in casting people out, whether they are children charged or prisoners convicted, and once shunned, turns its back against them. A forgiving society is confident and secure. It punishes those who transgress, but always with an eye to bringing them back, content in the knowledge that they were, are, and will always be one of us. A forgiving society insists that no transgression, however grave, can possibly sever the bonds that all of us share simply by virtue of our humanity.
Which society do you prefer?
