Much discussion around the Trump indictment has focused on whether the former president’s mug shot will be taken and released to the public. Such attention to a relatively routine part of criminal procedures reflects how much Americans value the mug shot, a contemporary digital artifact that causes intense public shame for most but for Trump could serve to further his agenda. What often renders other people powerless in an ecosystem of digital punishment could actually help Trump regain control over his indictment.
We love mug shots. The images are symbols of the guilty people in society who break the rules, pique our voyeuristic tendencies by offering a look into the often opaque workings of the criminal legal system, and once released are routinely used to generate profits through extortion and clickbait.
Mug shots are cheap to obtain through basic web scraping or Freedom of Information Act requests but can be immensely profitable to third parties that source and repost them.
Several decades of digitization—and the subsequent bending of transparency laws to make possible the bulk disclosure and immediate availability of mug shots—have created new sources of profit for newspaper websites that post mug shot galleries, and have even spurred an online extortion scheme in which shady websites charge the subjects of mug shots exorbitant fees to remove them.
Mug shots in America are released so routinely that they have become a source of data, used for training face recognition software or kept in vast databases to locate potential suspects caught on camera (though this has been shown to fail miserably—with serious consequences). Mug shots are used to fill space on local police department Facebook pages to show the public exactly how well their tax dollars are being spent, and they are carelessly indexed by Google image search results that people must explain over and over to employers, landlords, family members, and friends. Research estimates that local law enforcement agencies release over 4 million mug shots per year directly onto the internet, where they are scooped up and reposted, again and again.
For the individual caught in the image, the consequences can be devastating and lifelong. And remember, mug shots are taken well before a conviction. They reflect only the state’s accusation. In this sense, mug shots represent another overreach of state power—the ability to mark someone as guilty before they face a jury of their peers. There’s good reason to stop mug shots from being routinely published on the internet, especially because they don’t tell us reliable information about the person in the photo; instead they tell us more about who the police have decided to arrest, which is fundamentally shaped by race, social class, and neighborhood. The permanence of a digital mug shot violates the presumption of innocence and can eclipse even the legal punishments related to convictions, as around 80 percent of arrests are for low-level incidents.
That said, we don’t know whether a Trump mug shot will even exist. New York doesn’t necessarily release mug shots. State law § 160.10 mandates that a person arrested must be fingerprinted but does not require a mug shot. In fact, a mug shot is unlikely because, as Trump’s lawyers have noted, he is a pretty recognizable person.
But if there were a publicly released mug shot, the bigger question would be how Trump might derive economic and political value. One could already imagine Trump leveraging a mug shot to sell T-shirts and hats or, more broadly, as a symbol of the witch hunt he has loudly proclaimed. Because a mug shot is part of the public record, once it is lawfully released by a state agency, anyone is allowed to repost the material in a fair-use context, such as on a website or in a news story—but state law is a bit unclear on how copyright law might apply to others seeking to profit from a Trump mug shot and could potentially raise interesting legal questions about whether law enforcement technically owns the image and can limit its uses.
The symbolic capital may matter more, though. For Trump, the mug shot could become living proof of the political story he has spun—and fundraising efforts have purportedly already paid off, as his campaign allegedly raised $7 million in the days following the indictment announcement.
The potential benefit of a mug shot to Trump’s platform also points to the contingency of privacy in the criminal legal system. What might be for most people a devastating photographic display of one of their worst moments might instead work in Trump’s benefit by elevating public support.
These differences tell us bigger things about how distinct an arrest experience is for a powerful person, or what social scientists have long described as the stark difference between the haves and the have-nots as they navigate the American legal system—a system that, as Bryan Stevenson describes it, “treats you much better if you’re rich and guilty than if you’re poor and innocent.” Even if Trump is rich and guilty, he just might find a way to profit from it—or avoid the shame of a mug shot altogether.