Why is My Mugshot Still Circulating on the Web?

One of the thorniest issues people face who have a criminal record is that it is near impossible to remove all public references to their case if it received press coverage -- be it a mugshot, a blurb in the local paper’s police blotter, or more extensive coverage. Expunging or sealing a record will not eliminate these references. The reasons for this are two-fold.

Crime Stories Can Have Lasting Consequences  

First, under Illinois’ record clearing law, only a handful of governmental authorities are required to take some kind of action when a judge orders a record expunged or sealed: 1) the arresting police, 2) the clerk of court, and 3) the Illinois State Police. Notably absent from this list is the Illinois Secretary of State, the official record keeper of traffic violations.

Secondly, as I wrote in 2015 (Expungement v. Right to be Forgotten), unlike people who live in the European Union, we do not have a “right to be forgotten.” The reason for this is the U.S. Constitution’s First Amendment clause, which gives the press an unfettered right to publish stories it considers newsworthy, provided that the information is factually accurate.

Why Don’t Crime Stories Have an Expiration Date?

Earlier this year, I spoke with a man (I’ll call Mike) who was arrested for a felony several years ago. His arrest was reported on in his suburban newspaper. Not surprisingly, now when Mike googles his name, the articles about his arrest are the first items to appear in the search results. As much as Mike would like to move on with his life – he was previously addicted to drugs – the news coverage has made it difficult for him to put his past behind him.

In an effort to regain control over his reputation, Mike contacted the newspaper and asked the publication’s editor to remove the articles. Mike said that the articles were making it extremely difficult for him to find (and keep) a job. The editor refused, explaining simply: “It’s not my problem.”

Some might ask: At what point does a story about someone being arrested for, say, retail theft or criminal damage to property, cease to be newsworthy? At least a handful of U.S. newspapers are now willing to consider the question.

Few U.S. Newspapers Remove Crime Stories

In 2019, I heard a RadioLab story titled “Right to be Forgotten.” The story was about a program launched in 2018 by Cleveland.com (and its sister newspaper, the Cleveland Plain Dealer) that gives people an opportunity to request removal of articles whose contents continue to negatively impact them. Most of the requests submitted asked to remove a crime story.  

In 2020, realizing that knowledge of the program might not be reaching all those who would benefit, Cleveland.com sought funding from Google’s GN1 Innovation Challenge. Cleveland.com received $200,000 to develop tools that would help identify old mugshots and crime stories in its archives that deserved to be removed.

Earlier this year the editor of Cleveland.com, Chris Quinn, reflected on the program’s success. Without providing hard numbers, Quinn wrote that the initiative had helped “thousands” of people. He estimated that 80% of the requests had been granted. Requests routinely denied: stories about crimes of violence, felony sex offenses, child abuse, and public corruption.

So far, only a handful of U.S. media sources have taken a page from Cleveland.com’s playbook.

Acknowledging the Role of Race in Crime Reporting

A recent Google search found that similar programs have been launched by the Atlantic Journal-Constitution (and AJC.com) (program started in 2019), the Gazette, Cedar Rapids, Iowa (2019), The Boston Globe (and Boston.com) (2021), and the Bangor Daily News, Bangor, Maine (2021).      

While some news organizations will consider any type of request (e.g., Boston Globe, Atlantic Journal), the Gazette does not remove stories involving felony offenses, crimes of violence, or crimes involving loss of life. The Gazette also does not accept requests from celebrities or local/elected officials.

Those news organizations who established their removal initiatives after 2020 acknowledged the role played by the Black Lives Matter movement in making their decision.

So far, the “right to be forgotten” movement in the U.S. has not gained many adherents. That said, it is still a sign of progress that some news organizations have acknowledged that racial bias likely played a role in how crimes were selected for coverage, the harm these articles have caused, and, for a few, a willingness to do something about it.

That said, many individuals deserving of such relief will not have an opportunity to “plead” their case due to the offense they were charged with. One client’s story painfully illustrates this point. I will call her “Tina.”

Reliving the Worst Day of Her Life Over and Over

In 2003, Tina’s older brother took part in a murder. Even though Tina was not present when the victim was shot, never held the gun used, or destroyed evidence of the crime, she was arrested and initially charged with murder.

Only 21 years old and the mother of a toddler, Tina sat in the county jail for more than two years before finally accepting a plea offer from the state. Tina pled guilty to aggravated discharge of a firearm, a Class 1 felony, and received a ten-year prison sentence. In 2017, the sealing law was amended, making it possible for Tina to seal her record. On December 26, 2017, over the prosecutor’s objection, the judge granted Tina’s petition.

Sealing a Conviction: No Shield Against a Google Search

In 2019, Tina filled out an application to rent a townhouse. She answered “no” to whether she’d ever been convicted of a crime, as the sealing law permits her to do.

After moving into the townhouse, Tina accused the landlord of not making the agreed upon improvements to the residence. When Tina tried to break the lease the landlord’s wife, an attorney, suddenly accused Tina of having lied about her criminal background on the landlord-tenant application.

Since Tina’s conviction was sealed, I demanded a copy of Tina’s criminal background report so I could determine the source of the sealed record information. The attorney eventually conceded she’d “googled” Tina’s name and found articles about the case.   

Tina’s story highlights the ease in which a nearly 20-year-old case can be found. Cases which pre-date 2000 may not be as searchable as Tina’s was. A case in point: recently, I helped a woman seal a 1995 felony conviction. Even though her case was reported on, the case has never shown up when she’s googled herself.    

Policing Mugshot Websites

While there is no legislative solution to removing old crime stories from the Web, Illinois has made it unlawful to demand payment in exchange for removing a mugshot or correcting criminal record information from for-profit websites. Other states have enacted similar laws.

Illinois also imposes civil penalties ($100/day) in the event a for-profit website fails to respond within five (5) days of receiving a request to remove or correct criminal case information. 815 ILCS 505/2QQQ.

The Illinois General Assembly also tried but failed to legislate under which conditions a website must remove a mugshot or criminal record information. Had the proposal been successful, websites would have been required to remove the information if the defendant obtained a certificate of innocence, was found not guilty of the crime, or expunged/ sealed the record.

Nowadays, some websites have shown a willingness to remove mugshot photos if given proof of expungement.