Facetime: The Justices and Injustices of Mugshots in a Digital Age

Law-enforcement officials release arrest photos to the public and the news media. The media often publishes them, without necessarily following up if a defendant is exonerated.

Southside Daily 

By Joan Quigley

Matt Williams looked for his mugshot on the internet recently.

As a William & Mary undergraduate, he’d had a few brushes with the local police.

The first time, in the fall of 2012, officers spotted him walking home. He was just shy of turning 21. He woke up in jail and was charged with underage possession of alcohol and being drunk in public, he said in a recent interview.

The second time, when he was 21 and charged with public intoxication and swearing, there were handcuffs and fingerprints. There was also a mugshot.

“I thought it would be a funny picture to find,” he said.

As historical artifacts, mugshots can be iconic. Think black-and-white arrest photographs for criminals such as Al Capone. Or rockers such as The Doors’ Jim Morrison.

In 2017, though, mugshots can have long internet lives — even if they don’t belong to celebrities or gangsters.

Employer reluctance to hire

Law-enforcement officials release arrest photos to the public and the news media. The media often publishes them, without necessarily following up if a defendant is exonerated.

And in Virginia, the state police maintain a database of an estimated 1.2 million mugshots, known as the Centralized Criminal Information System or CCIS, according to an October 2016 report by Georgetown Law Center on Privacy & Technology titled “The Perpetual Line-Up.”

Mugshots remain in CCIS indefinitely, unless the arrest records are removed through a court-ordered process known as expungement, the report said, and Virginia criminal justice agencies have access to CCIS on request.

That means a minor brush with the law might have a negative effect on people who are enlisting in the military, applying to graduate school or looking for work.

“Everyone with a criminal record is facing that employer reluctance to hire,” said Stephanie Akhter, program director for corrections and reentry at the Council of State Governments Justice Center.

So is there anything you can do to make a mugshot go away if you think it might be hurting your job or other prospects?

Under Virginia law, you can go to court to get an arrest photo removed — or, to use the technical term, expunged — from the VSP database.

“It sounds complicated,” said Rick Collins, a Williamsburg attorney. “Most of them are very simple.”

Complicated or simple, there is a process

The procedure has several steps and it begins with a form, called a petition, filed in circuit court.

Petitioners have to show the “continued existence and possible dissemination” of the arrest-related information causes or might cause a “manifest injustice.”

If the arrest was for a misdemeanor and the person seeking to expunge it has no previous criminal record, the court must grant the expungement request unless the Commonwealth shows “good cause” to the contrary.

Then, if a judge grants the request, the court forwards the order to the state police, which removes the arrest-related records, including photos.

But record clearance isn’t an option for everyone.

Under Virginia law, expungement is available when someone is acquitted, meaning a jury finds them not guilty, when the charges are nolle prosed, meaning the prosecutors drop them, or the charges are otherwise dismissed, or when a person is pardoned.

On a practical level, what does this mean?

For one, statistics about expungements are difficult to come by.

“Unfortunately, it’s practically impossible for us to provide accurate information,” George E. Schaefer, clerk of Norfolk Circuit Court, wrote in an email. “Once someone actually gets an expungement, not only are the old charges removed from the court database but – so there is no record of any kind – so is the petition for expungement.”

In Williamsburg/James City County, the circuit court tracks how many expungement petitions are filed, according to Clerk Mona Foley, but not how many are granted.

In 2015, for example, 43 expungement petitions were filed in Williamsburg/JCC circuit court and 117 were filed in 2016, Foley said. In roughly the first seven months of 2017, from January through mid-July, 50 expungement petitions were filed.

Data about communications between VSP and courts in the Historic Triangle and on the Southside, obtained under the Freedom of Information Act, shed some additional light.

Between January 2015 and July 2017, VSP and the Williamsburg/JCC circuit had two communications about successful expungement petitions arising from James City County; there were 140 such communications arising from Williamsburg, according to an email from First Sergeant David L. Ostwinkle, in VSP’s Office of Legal Affairs, who responded to the FOIA request.

During the same period, there were 493 communications from VSP for successful expungement petitions arising from circuit court in Virginia Beach and 295 about successful expungements arising in Norfolk’s circuit court, according to Ostwinkle’s email.

A recent expungement case on the Southside is an example.

In June 2016, a Virginia Beach jury acquitted Robert Malick of second-degree murder. Earlier this year, in March, Malick’s attorney James O. Broccoletti filed papers in Virginia Beach circuit court, asking the court to expunge the murder charge, as well as a rape charge and a sodomy charge which had been nolle prossed in 2016, court documents say.

The Commonwealth’s Attorney’s Office opposed the expungement, but the court granted Malick’s requests, according to according to Andy Rosenberg, an assistant Commonwealth’s attorney for the city of Virginia Beach.

Broccoletti did not respond to requests for comment.

On the other hand, Williams, now 25, presents a different situation. He was charged with misdemeanor public intoxication and swearing, according to records in Williamsburg/James City County circuit court.

He was not aware of expungement, he said, and whether his mugshot might have some repercussions is a concern for him.

“It hasn’t,” he said. “But I see how it could.”