Sean Lynn is a Democrat serving Dover in the House of Representatives.
Innocent until proven guilty is one of the central pillars of the American justice system. This is a principle we are taught in grade school and one that should guide how we treat people accused of crimes. However, law enforcement fails to uphold the presumption of innocence as a foundational principle of our justice system when they adopt social media platforms as their primary means for communicating with those they protect and serve.
As we are all well aware, an arrest is not a conviction, yet when law enforcement posts someone’s name, the details of his or her arrest and a mugshot on social media, the public judgment can be harsh and immediate. These (often unflattering) photos are widely shared, commented on and circulated far beyond the original post. The public often mistakes these allegations as facts confirmed through an adjudication before a court. Police do not revise their posts to reflect if the accused is ultimately found not guilty, has his or her charge dismissed or pleads to a lesser offense. The name, alleged crime and the mugshot will follow the accused for the rest of his or her life once it’s been published on the internet. These posts have proven to further exacerbate barriers to housing stability, gainful employment and countless other opportunities that fail to materialize once a Google search produces the police agency’s social media post.
That is why I made restoring the core tenant of a presumption of innocence until proven guilty beyond a reasonable doubt a top priority last session, as it’s critical for advancing meaningful changes in the criminal justice reform movement in Delaware. By expanding upon a bill relating to the disclosure of a minor’s name and mugshot, which I championed in a previous General Assembly, I filed House Bill 59, which limits when law enforcement can release or publish an adult’s name or photo upon his or her arrest. Under the new law, that information may be released by police only when the person is charged with a felony and releasing it is necessary to protect public safety. The law in no way prevents law enforcement from posting this information after a conviction.
To truly understand why this law was — and is — necessary, we should start by discussing the reality of how and why this information is posted in the first place.
Right now, a lot of these posts have little to do with public safety. Law enforcement agencies know that mugshots get clicks, comments and shares, and that’s good for a page’s engagement metrics. But it doesn’t help anyone stay safe, as evidenced by the posts for detainees who remain in the custody of the Department of Correction at the time that police are publishing their names and mugshots on their pages. If there’s a real and imminent threat to public safety, the bill allows for the release of this information. But, for arrests where this ongoing threat does not exist, there’s no good reason for police social media pages to sacrifice the presumption of innocence by posting the worst moments of people’s lives in exchange for increasing the number of followers and boosting engagement on those pages.
Over the last decade, the General Assembly has worked hard to pass measures that help people who have served their time and paid their debts to society get the tools they need to rebuild, end the cycle and move forward with their lives. The majority of Delawareans subscribe to the belief articulated by Bryan Stevenson — that each of us is more than the worst thing we’ve ever done. His words remind us that justice includes our capacity for growth, remorse and change. These guiding principles must be extended to social media — a space where we know that shock value, virality, clicks and increasing a page’s overall engagement is currently held in higher regard than the truth, and once posted on a police social media page, a person’s name and mugshot can never be fully erased.
In our state’s competitive job market, any mark on your official or social record could determine whether you can find employment. With the passage of the laws that expanded access to expungement, including The Clean Slate Act, many of the crimes detailed in police social media posts and subsequently disposed of with convictions are nonconsequential enough to be wiped from people’s official criminal records. A snapshot in time that is recorded in a social media post should not have more power than a jury convened under the laws of the state of Delaware or a judge granting permission to officially expunge a petitioner’s criminal record. Social media managers for police departments should not get to determine whose privacy is worth protecting or whose name and mugshot is worth more in clicks.
Importantly, and something that has been largely absent from the public conversation around this law, HB 59 does not prevent news organizations or media pages from reporting on arrests or accessing public information relating to those open cases. Court records and arrest information has been and will remain available through publicly accessible websites, like CourtConnect, or by reaching out to the courts’ Prothonotary Office. Additionally, the public can conduct a search on VINE, an online repository that provides the custody status and criminal case information for any active case in Delaware. Finally, unfettered public access remains in place for the roster of persons with active arrest warrants via the Online Wanted Person Review administered by the Delaware Criminal Justice Information System. These online resources are publicly available at no cost and include information about every case in this state in a consistent and equitable manner.
With the enactment of House Bill 59, we are simply reaffirming our commitment to the principle that the presumption of innocence is sacrosanct, and we must restore its application to a person’s online reputation, as well as their court dates.
Reader reactions, pro or con, are welcomed at civiltalk@iniusa.org.
