Ten with Ben – Episode 1: Bad & Busted

Should newspapers and websites be able to post your picture before you've been convicted of a crime?

Hi, I’m Attorney Ben Schwartz,

Thanks for watching Ten with Ben. Today we are going to do a video about Bad & Busted. This is a newspaper that a friend of mine from Georgia sent to me. He moved to Georgia and he was surprised, because when you go into a convenience store, there is this magazine called Bad & Busted. It has the mugshots of everybody in the county who has been arrested recently. I said to him, send me a copy of it so I can see what you are talking about. I did not believe him, I thought he was pulling a gag on me, but actually it turns out that it is true. Here is one of the Bad & Busted newspapers and basically everybody that has been arrested, charged with DUI, charged with speeding, charged with a felony, you rob a bank, you shoplift, you are going to be in this Bad & Busted newspaper.

I did not believe it because where I live there is no such thing. It turns out, that in some states, if the police publish the mugshot, when they arrest somebody, there are these private companies that have newspapers or  websites and they take the public information, the mugshot, the name of the person, the charges, and they publish it. I was thinking how is this even possible and the answer of course is, we live in America & we’ve got a constitution. The First Amendment to the Constitution is freedom of speech and so these Publishers have the freedom of speech to continue the dissemination, to continue to spread information that is already public. It is not private information, it is stuff that is already out there, because the police put it out there.

Looking at it kinda just makes me upset for these people. A lot of these folks are not hardened criminals. A lot of these people are young people. I know from my law practice the people that get involved in the law, people that get arrested and charged with crimes, are usually 18 to 26 or 18 to 30 years old and have a lot of life in front of them.

They may be on the wrong track, they may be using drugs, they might not be thinking clearly. They might be getting arrested now but that does not mean that when they are 45, 55 or 65 years old, they are still going to be caught up in the life; that they are still going to be committing crimes. The problem from my perspective with these publications is if this is on the internet, you know once something is on the internet it is always on the internet. There is not really anything you can do to get it off of the internet.

These people that are now getting arrested. When they go to get a job 15 years down the road, maybe they have completed their college degree. Now they are going to get a job as a professional, this is going to come up in a deep internet search when their prospective employer is looking for them. Another problem that I have with this is, it used to drive me kind of nuts when I did a lot of criminal defense, because my clients would end up in the newspaper. There would be an article about my client who robbed a store or committed some crime. Basically what you need to know is that if you see that somebody has been arrested, that does not mean that they actually did it. The number of times that I represented somebody who was charged with a crime when they factually did not do it, when they were actually innocent, was significant. It is not like it does not happen. Not only do innocent people get wrongfully charged with crimes and later get the charges dismissed, but in a lot of cases people get overcharged. What they might have actually done might have been a misdemeanor-level crime but they are getting charged with a felony. They end up with a plea bargain 3, 6, 8 months down the road to a misdemeanor. They never really should have been charged with a felony in the first place, because their criminal activity did not rise to that level.

I am aware that in a lot of states, I am not saying this happens in every case, so if you are a police officer or prosecutor, please do not send me hate mail telling me how wrong I am. Occasionally, in some states and some counties, they make it a practice to charge people with felonies so that everyone will plead out. It is less work for the police and prosecutors, who do not have to go trying cases. When you look at the dockets of some Criminal Courts and you see that almost all cases result in guilty pleas, but to lesser included offenses of what was originally charged, that is what is going on. There is a lot of pressure to over charge people so that the plea bargains can accurately represent what the criminal activity actually was. That is something that happens a lot in criminal cases too.

I do have to say that I am not into this in any shape or form. Actually, I think it is very distasteful. As I am looking at this Bad & Busted newspaper, I don’t want to focus on anybody’s name, because I don’t want to make it part of our video blog. This is the Bad & Busted top 5 for Habersham, Rabun, Banks, White, and Stephens County, Georgia issue #49 December 6, 2017. On page 10, no not page 10, on page 11, I just want to show you one thing that is in here. I think it is disgusting to make it your business to publish all of these mugshots of people who have been arrested; some guilty, some truly innocent. Also some of the other material that is in here is truly offensive. I am just going to hold this up for the camera. Can you focus on that? This is a picture that is published in this newspaper and it is a picture of the one of those things that you hang from the rear-view mirror in a car with the scent, it is the one that is shaped like a pine tree. It says, “Nigga’s be like just finished putting up my Christmas tree.” I really just think that is completely disgusting. It is not something that needs to be put into a newspaper for people to read. I just think it is wrong and I would just encourage the publisher of this newspaper to think twice about what kind of garbage you are putting out there for people to read.

The other thing I have to tell you is, as a criminal defense attorney, it drove me nuts that newspapers would publish the reports of my clients getting arrested, but then there would never be a follow-up to say the charges got dropped, the guy was actually innocent or those felony charges that were reported, they did not stick, the guy got a misdemeanor conviction. I think that every state ought to have a law that says, if you are going to publish the mugshots, if you are going to publish information pertaining to the arrest of people, then it should be mandatory under the First Amendment to follow that up with the disposition of the criminal case so that the readers understand what happened. I am Attorney Ben Schwartz and I hope you enjoyed this Ten with Ben episode. If you have a thought on these mugshots, on websites, on newspapers that publish this type of arrest information, send me an email.

  1. C Patrick says

    On the issue of Bad and Busted I do think there is a definite problem with the publication of people’s “mugshots”. Even more troublesome is the fact that once it’s on the Internet it may never go away. My nephew was murdered five years ago and I have called and written requesting his “mugshot” , from his teenage nuisance, be removed and gave up. It’s very upsetting though. I think if it’s requested and proven, he’s no longer on earth , it should be removed.

    1. admin says

      Sorry to hear about your nephew! That’s in line with what Ben is saying in the video. This can have adverse posthumous consequences as well. Great point.

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