Interesting Idea On Shutting Down Mugshot Extortion Sites

Websites that publish mugshots in hopes of having people to pay to remove their mugshot have garnered a lot of attention lately— all of it bad, and rightfully so.  The good news is that the operators of these sites are feeling the squeeze.

It started with a New York Times article by on October 5.  The article drew the attention of Google, who responded by taking the extraordinary step of adjusting its search engine algorithm to specifically punish these parasitic sites.   As a result, traffic supplied to these sites by Google dropped an estimated 90%.  Search results that used to produce a mugshot page for a person on page one are now putting mugshot pages in search engine oblivion— page 10 or higher.  If the pages are not seen, well, then why would someone pay to have the page removed.  Good question.  I hope the answer is that they don't.

The next result from the article was a crackdown by the credit card companies.  Mastercard led the charge by revoking the right to accept Mastercard from anyone who they found charging people to remove mugshots.  A representative at Wells Fargo's fraud division said that they were taking swift action to revoke merchant card services agreements with anyone who had a business model centered on mugshot publishing or removal. 

Web sites like Mugshots.com started to squeal.   First, they claimed that they were doing a public service designed to protect society.   A claim that rang totally hollow in light of the fact that mugshots.com still charges a person to remove a mugshot when the case has been dismissed or expunged.   Then Mugshots.com wined about "search neutrality"— a term that implies that search engines like Google should not let their values be reflected in search results.  Well, Google and any other free thinker did not buy the argument— after all, Google is a private company whose business is centered on providing search results that they think are relevant to its user. What Google does with its algorithm is its own business.

Another interesting article that followed was published by the Santa Ana, CA based law firm of Higbee & Associates.  The article labeled these sites as mugshot extortion sites and made a good case for it based on state law in Florida and Arizona.   The article then went on to make a good case as to why the sites are vulnerable to prosecution, both in civil and criminal court, for violations of RICO, the Racketeer Influenced and Corrupt Organizations Act.  Already ongoing legal actions against mugshot sites has been in civil court and centered on privacy and rights of publicity.   However, RICO carries more teeth as a civil case and easily be converted to a criminal case by any enterprising or ambitious attorney general.

 

Expunging Criminal Records And Driving Records

In the United States, criminal records can be expunged or sealed, but laws vary by state. Many different types of offenses, anything ranging from parking fines to felonies, may be eligible to be expunged.  Each state sets its own guidelines for what records are eligible for record clearing relief or for whether any such relief is available at all.

In general, once sealed or expunged, all records of an arrest and the subsequent court case are removed from the public record.  Most laws allow for the individual to legally deny ever having been arrested for or charged with any crime that has been expunged.  Some jurisdictions allow for records to be expunged, which means the record is completely destroyed, and some states provide for a record sealing, which just seals the record from the public view but does not completely destroy the records.

Each state sets its own requirements that an individual must meet in order to have their criminal record expunged or sealed. The petitioner will have to complete the forms and follow all the other instructions when submitting the petition to the appropriate authority, often a county court. The petitioner may choose to hire an attorney to guide him or her through the process, or he or she can decide to represent him or herself.

One of the major ways that expungement laws differ among states is in the way that driving offenses are handled.  Driving related offenses are quite often considered very minor, and in many instances driving violations are not even considered a criminal offense. Because of this, many states do not allocate resources to the processing and deciding of record clearing relief for traffic offenses; in these states driving offenses are simply ineligible to be sealed or expunged.

Some states, such as NewJersey and Michigan, do not offer the option to expunge or seal any traffic or driving offense. Sometimes they are simply not provided for in the expungement law, because the offenses are not included in the criminal code but rather are contained within a separate vehicle code. 

In other states, certain driving violations are considered criminal offenses, and these offenses are graded like all other crimes, such as being classified as either a misdemeanor or felony.  These more serious driving offenses can result in the same collateral consequences as any other criminal prosecution or conviction, such as difficulties in securing employment and housing.  And while some jurisdictions still do not provide for expungement or sealing, in many states, these misdemeanor or felony convictions for driving offenses are eligible to be sealed or expunged just like any other criminal record. 

Some serious driving offenses are “Driving Under the Influence” (DUI) or “Hit and Run” violations.  These serious driving offenses are often considered criminal in nature, and therefore, in many states, assuming other eligibility criteria are met, the arrest or conviction of these offenses can be expunged or sealed by the court like any other criminal offense.  

Expungement Benefits and Requirements Vary By State

Typically, when an expungement is granted, all records on file within any court, detention or correctional facility, law enforcement or criminal justice agency relating to a person's detection, apprehension, arrest, detention, trial or disposition of an offense within the criminal justice system will be destroyed.  However, for driving offenses, the former offender cannot necessarily be fully confident moving forward, because the offense will not have been removed from every place that records are maintained.  

Even in jurisdictions that permit driving offenses to be sealed or expunged, the defendant is not able to completely remove all traces of the case, because a criminal record expungement or record sealing does not affect the defendant’s driving record. The expungement process is handled through the court, and it only seals or expunges the records held by the court and other criminal justice agencies; the state DMV or equivalent state agency is generally not required to comply with an expungement or sealing order from the court.

Driving offenses will remain on an individual’s driving record, which is maintained through the state’s Department of Motor Vehicles (DMV) or the equivalent division in each state. A violation on the driving record, unlike on the criminal record, cannot typically be expunged or sealed.  However, unlike your criminal record that does not disappear automatically, a driving offense will usually come off of the driving record after a specified number of years.  Generally entries will be removed after 5 or 10 years; however very serious violations can remain on the driving record for even longer.

Trends In Expungement Laws

The broadening of the availability of expungement in states all a cross the country during the past 4 years has revealed interesting things about the politics of expungement and laws that pertain to the maintenance and distribution of criminal records.   Examining the trends reveals positive news for those who favor the expansion of expungement laws.

There have been about 20 expansions of expungement related laws during the past 4 years.  Geographically, the changes have been spread almost equally throughout each region (the Pacific Time Zone has had the fewest laws enacted).

Expungement has typically been championed by groups that work with former offenders and liberal coalitions.  When expungement laws are opposed, they are typically opposed by law enforcement.   Accordingly, one would think that Democrat lawmakers would be the ones sponsoring and enacting expungement laws and that Republicans would be the ones opposing expungement laws.  

It turns out that the opposite is true.

What is most notable is that most of the states that have expanded expungment laws were states that were governed by Republican legislators and governors.  Even more notable is that states with what some would call the most liberal expungement laws are typically considered very conservative states, such as Utah.

According to the Foundation for Continuing Justice, a non-profit foundation that tracks expungement related laws, 19 states have passed expungement laws in the past 4 years, and 10 of them were passed and enacted in states that had Republican controlled legislatures and Republican governors.  In contrast, there were only five bills passed in enacted in states with Democrat controlled legislatures and governors.  The other four laws were enacted in states where there was a split in political power between the party controlling the legislature and the party of the governor. 

So why are Republican lawmakers passing bills that are supported by liberal coalitions?  The answer is simple said a legislative assistant (who asked to be nameless) Salt Lake City, Utah.  “Democrats have deathly fear of appearing soft on crime and they think that supporting expungement laws will make the susceptible attacks of helping criminals,” she said.  “They are quick to vote for the laws, but they are slow to sponsor them.”

That is not always the case.  Some Democrats are fighting for criminal record expungement laws in states where Democrats are in the minority.   The Pennsylvania just passed an expungement bill that greatly expands expungement.  It was sponsored by Senator Tim Solobay and passed in committee and the full Senate without a single vote against it. The bill even had support from law enforcement leaders.

The good news is that the one trend that is dominating is that access to expungement is increasing.  There hasn’t been a bill that reduces expungement in at least the past 6 years.