BISMARCK — A failed North Dakota bill that would have made mug shots confidential in most cases before a conviction was revived recently by lawmakers as an amendment to its sister legislation.
The Senate Judiciary Committee on Monday, March 15, gave a 4-3 do-pass recommendation to House Bill 1294, which would allow people to sue companies who charge them money to remove their criminal history from websites.
The bill now includes language from the failed House Bill 1296, which proposed making booking photos closed records in most cases unless the person arrested is sentenced for the crime associated with the image. A vote on Monday to reconsider removing that amendment failed 4-3.
The House rejected the original mugshots bill in a close vote but passed its sister bill HB 1294 by a wide margin. Sen. Janne Myrdal, R-Edinburg, asked the Senate Judiciary Committee to amend HB 1294 to include a measure making booking photos confidential.
Proponents of the bill said mug shots make a person seem guilty when they should be presumed innocent until otherwise proven. Some people who are charged with a crime are not convicted or may plead down to a lesser crime, yet those mug shots live on the internet forever, said Rep. Shannon Roers Jones, R-Fargo, the main sponsor behind both bills.
“It creates that stigma in the viewer’s mind that they’ve done something wrong,” the Roers Jones said last week during a hearing. “That picture creates an image of guilt in the viewer’s mind.”
North Dakota law enforcement officials have been vocal against making booking photos confidential for various reasons. Some feared officers could face a Class C felony if they improperly release a mugshot, said Donnell Preskey, a government and public relations specialist for the North Dakota Association of Counties.
Agencies could release mugshots if public safety or law enforcement interest outweighs the need to protect arrestees' privacy. Reasons could include if the person is a fugitive or failed to appear for court.
The amendment authored by Myrdal lowered the charge for releasing mug shots to an infraction. The previous bill said law enforcement could only release mug shots when there was a compelling public interest, but lawmakers removed that language in HB 1294.
The Association of Counties still opposes the bill, Preskey said. She said jail logs operate on a system not connected to court information that details if a person is convicted, meaning there would be a lot of back and forth to determine if a photo is releasable.
Media outlets also argued mug shots give residents insight into the judicial system.
Roers Jones said she did not expect the committee to add the amendment to HB 1294. She said she did not speak with Myrdal before hearings began about adding the mug shot confidentiality amendment.
“I was pleasantly surprised that the Senate Judiciary Committee was interested in doing this,” she said
On Monday, Myrdal denied claims that she tried to sneak in the amendment.
"My intent is not at all to go against law enforcement or counties," she said. "However, it is our responsibility and my responsibility to do the right thing for constituents."
Sen. Jason Heitkamp, R-Wahpeton, asked the committee to reconsider the amendment on Monday after getting emails from law enforcement officials. Sen. Diane Larson, R-Bismarck, who chairs the committee, acknowledged both sides but said the process of adding the amendment was rushed.
“I feel like we did not do due diligence when we adopted the amendment in the beginning,” she said. “We didn’t get all of the information on the ramification of this.”
Larson noted other legislators told her they would vote against the bill to keep mug shots as open records.
The Senate will vote on the amendment and bill individually. If both pass, the legislation will go to a conference committee. If the bill passes without the amendment, it will go to Gov. Doug Burgum's desk.