Independent New Hampshire Journalism · Northfield, NH

Mugshots Are Punishment Without a Verdict. Concord Buried the Fix Twice.

Police hand out booking photos of people who have not been convicted of anything, commercial sites republish them forever, and the State House has now shelved two bills to stop it. Here is the case for a third try, with the model bill attached.

The camera comes out at the worst hour of a person’s life. Hair wrecked, eyes swollen, face lit flat by fluorescent tubes in a booking room, photographed by the government against a wall. No judge has heard a word yet. No lawyer has been called. Nothing has been proven. That photograph exists so officers can identify who is in their custody. In New Hampshire, it does a second job the law never assigned it: it convicts.

I will say this plainly. Publishing routine booking photos is abuse. It is punishment delivered before trial, by press release and Facebook post, to people the law still presumes innocent. A mugshot shows the world one thing: a human being on the worst day they have had, framed the way we frame the guilty. Once it goes out, no acquittal recalls it.

New Hampshire has had two chances to shut off the spigot. House Bill 125 in 2021 and Senate Bill 246 in 2023 both would have pulled routine post-arrest photos out of public release until conviction. The Senate buried both in interim study without a floor vote on the merits. This piece makes the case for a third attempt, and this time the bill comes drafted.

The photograph is the sentence

Charges get dropped. Charges get reduced. Defendants get acquitted. Prosecutors decline to file at all. The photo does not know any of that, and neither does the search engine that serves it to a hiring manager, a landlord, or a first date five years later. An arrest record used to fade into a filing cabinet. A booking photo now lives at the top of a Google result with a person’s name on it, permanently, whether or not the state ever proved a thing.

Do not take my word for the harm. Take the federal judiciary’s. In 2016, the full Sixth Circuit Court of Appeals reversed twenty years of its own precedent and ruled that people hold a real privacy interest in their booking photos under the Freedom of Information Act. A disclosed booking photo, the court wrote, “casts a long, damaging shadow over the depicted individual.” The U.S. Marshals Service now withholds federal mugshots as a rule and weighs any release case by case. The federal government treats its own booking photos as private. Your local police department posts theirs between the road-closure notice and the K-9 fundraiser.

The press has started admitting the same thing. In June 2021 the Associated Press announced it would stop naming suspects in minor-crime briefs and stop publishing stories driven mainly by an embarrassing mugshot, because such items “have long lives on the internet” and the wire rarely covers how a case ends. San Francisco police quit releasing most booking photos in 2020. The New York Police Department, the largest force in the country, generally holds them back unless release serves an investigation. The institutions closest to the damage have been walking away from the practice for half a decade.

The racket built on top of it

Every photo a department releases feeds a commercial food chain. Scraper sites harvest booking records from public sources and republish them at scale, wired for search engines. One aggregator, Recently Booked, currently republishes New Hampshire arrest records and booking photos county by county, refreshed within the past thirty days, sourced from sheriff and jail data. The wider industry that grew up around sites like these built a business model blunt enough that legislatures gave it a name: mugshot extortion, the practice of charging the person in the photo a fee to make it disappear.

By late 2017, Stateline counted eighteen states with laws attacking that model, from removal-fee bans to mandatory takedowns. The same reporting found the laws mostly failing. “They haven’t worked,” said Eumi Lee, the University of California law professor who studied them; operators shift domains, incorporate offshore, and reload the same photos on the next site over. Takedown laws chase the water after the dam breaks. The dam is the government release itself, and only the government controls it.

New Hampshire wrote a promise it cannot keep

Here is where the state’s own law turns on itself. New Hampshire’s annulment statute, RSA 651:5, says that a person whose record is annulled “shall be treated in all respects” as if never arrested, convicted, or sentenced. The same statute goes further: knowingly disclosing someone’s annulled record is a misdemeanor. Read that again. New Hampshire law already declares that certain arrests legally never happened, and makes it a crime to go around repeating them.

Now hold that promise up against practice. No New Hampshire statute governs when police may release a booking photo. Departments decide for themselves, and plenty decide the answer is a social feed; as Citizens Count noted when the issue last reached Concord, departments post mugshots to Facebook, some with mocking captions. The state hands the loudest arrest record in existence to the open internet on day one, then tells the acquitted, years later, that a judge’s annulment order has erased it. The order cannot reach a scrape server in another jurisdiction. That is not a privacy framework. That is a leak with paperwork.

Concord had the fix on its desk. Twice.

None of this required inventing anything. In 2021, HB 125 would have kept post-arrest photos out of public release until conviction, with exceptions for fugitives, safety threats, and court-ordered releases. Its sponsors were two Democrats, Reps. Nicole Klein-Knight and Donald Bouchard, and a Republican, Rep. Terry Roy. The House Criminal Justice committee recommended it 19-2. The full House passed it on a voice vote in April 2021. The Senate Judiciary Committee reported it “Ought to Pass” on May 25. Two days later, Sen. Bradley moved to rerefer it to committee, and on January 5, 2022, the Senate sent it to interim study on a 5-0 committee vote. That is where New Hampshire bills go to die politely.

Who showed up to kill it tells you the politics. At the April 2021 Senate hearing, the New Hampshire Press Association, represented by Union Leader publisher Brendan McQuaid, opposed the bill as a threat to transparency, and Manchester Police Chief Allen Aldenberg opposed it for the chiefs, saying departments give releases careful thought. The ACLU of New Hampshire testified in support. The bill died anyway.

Two years later the idea came back from the other side of the aisle. SB 246 of 2023, filed by Sens. Keith Murphy and Kevin Avard with Reps. Dan McGuire, James Spillane, and Jim Kofalt, all Republicans, would have restricted disclosure of post-arrest photographs under the Right-to-Know Law. Same subject, same building, same grave: rereferred in March 2023, interim study on January 3, 2024, no floor vote on the merits, dead.

Sit with that pattern. A Democrat-led bipartisan bill passed the House and died in the Senate. An all-Republican bill died in the same Senate two years later. When both parties file the same reform and committee process swallows it twice, the opposition is not ideological. It is institutional. The two loudest constituencies in the building on this issue are police departments, which want the option, and my own industry, which wants the clicks.

What other states did while Concord studied

Utah made booking photos protected records in 2021: no release until conviction, with fugitive and public-safety exceptions. The sponsor, Rep. Keven Stratton, put the stakes in one line during the House hearing: “we hang a virtual scarlet letter around the one that’s been accused.” California banned police social-media posting of nonviolent arrestees’ mugshots in 2021, then went further in 2023; under Penal Code section 13665 as amended, every booking photo a department shares on social media comes down within 14 days, retroactively, absent narrow exceptions, per the Attorney General’s own compliance guidance. Louisiana enacted limits on release and dissemination of booking photos in 2022. New York’s 2019 budget package pulled the State Police out of the routine mugshot business.

Transparency did not collapse in any of those states. Arrest logs stayed public. Names, charges, dates, and arresting agencies stayed public. Courtrooms stayed open. What ended was the government’s distribution of a humiliation product it was never obligated to manufacture for public consumption in the first place.

The line I will not pretend isn’t there

Now the hard part, and I run a news outlet, so I owe you the straight version. The First Amendment does not allow New Hampshire to punish a newspaper, a TV station, or this publication for running a booking photo it lawfully obtained. The U.S. Supreme Court settled the principle in Smith v. Daily Mail in 1979: the state may not punish publication of lawfully obtained, truthful information on a matter of public significance absent an interest of the highest order. A bill that gags the press will lose in court, and it should. I would not sign one if it could pass.

So the fix lives upstream, where it is both constitutional and effective. The government took the photograph. The government controls the tap. A state that turns off routine pre-conviction release, forces its own agencies to take posted photos down after dismissals and acquittals, and treats pay-to-remove schemes as an unfair trade practice has not restricted a single publisher’s speech. It has stopped subsidizing humiliation with public resources. Every right the press holds today survives intact; what disappears is the free feed.

And to the transparency objection my industry raised in 2021: RSA 91-A exists so the public can watch the government. The person in the booking photo is not the government. Who was arrested, by which department, on what charge, and what a court did about it all remains public under this proposal, in writing, forever. The photo adds shame to that record, not oversight. The cases where a face serves the public, a fugitive, an imminent threat, an arrested public official whose identity is itself the story, ride through the bill’s exceptions and through the press’s untouched right to publish what it lawfully holds.

The bill

Granite State Report has drafted model legislation, published today alongside this piece, ready for any representative or senator to carry. It does five things. It exempts booking photographs from disclosure under RSA 91-A until conviction. It bars law enforcement from publicly disseminating pre-conviction photos, with exceptions for fugitives, imminent threats, court orders, and exigent circumstances, and requires photos posted under an exception to come down within 14 days once the circumstance ends. It requires agencies to remove posted photos after acquittal, dismissal, non-prosecution, or annulment. It makes soliciting or accepting a fee to remove a booking photo an unfair trade practice under the Consumer Protection Act, RSA 358-A. And it says in black letters that nothing in the act restricts any person’s right to publish a lawfully obtained photograph, because a bill that survives court is worth ten that feel good in a press release.

An arrest is an accusation. New Hampshire should stop printing accusations on people’s faces and calling it transparency. Utah did this. California did this. Louisiana did this. The federal courts got there a decade ago, and the Associated Press got there in 2021. The hearing rooms in Concord are the same ones that buried this reform twice while it studied nothing in interim study. The bill is drafted. Third time, take the vote.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Legislative histories were read from LegiScan’s records for HB 125 and SB 246; statutes and court opinions were read in the texts linked above. Positions attributed to the New Hampshire Press Association, Chief Aldenberg, and the ACLU of New Hampshire reflect their public 2021 testimony as reported at the time. No individual is accused of wrongdoing in this piece. The model bill is a discussion draft, not legal advice, and codification anchors are bracketed for legislative drafting counsel. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.