A controversial bill that could have prohibited law enforcement agencies from releasing post-arrest booking photos - or mugshots - to the public until the defendant is convicted, except in certain cases, was re-referred by the New Hampshire Senate and is essentially dead for this session.

The Senate may take up the bill, HB 125, in the spring.

Under the bill's language, booking photos could be distributed if there was an immediate danger to the public, if a suspect failed to appear in court or if the accused continued to commit crimes while out on bail.

During a Senate session on Thursday, State Sen. Harold French, R-Franklin, who is a member of the Senate Judiciary Committee, which approved the bill, said a key aspect of the justice system is that an individual is innocent until proven guilty.

French said a booking photo can stay with a person through internet search engines and the bill could protect people from the court of public opinion, but it needs more work.

"The court of public opinion can have an incredibly detrimental effect on a person's life and the distribution of a post-arrest photo sets up an individual to be judged as guilty in the public eye before any actual determination of guilt is made," French said during the session.

French recommended the bill be re-referred to a House committee so "certain changes" can be made and it can be revisited. He did not say what those changes should be.

State Sen. Jay Kahn, D-Keene, who is also a member of the Senate Judiciary Committee, said the 3-2 committee vote made it clear there are multiple sides to the issue.

"The bill has guardrails in it and doesn't say 'never ever' on the release of photos. If law enforcement believes there is an immediate danger to the public they can release the photo. They can share the photo with other public safety. They can release the photo if the subject fails to appear in court. And they can release the photo at the request of the person who's been arrested," Kahn said.

Both French and Kahn voted for the committee to pass the bill.

The bill would remove the photos from being part of the public record and available for inspection under the state's "Right to Know" law. Members of the media oppose its passage.

New Hampshire Union Leader President and Publisher Brendan J. McQuaid is a board member of the New Hampshire Press Association, which opposes the bill as an organization.

McQuaid had his newspaper editors publish a front-page editorial on the issue for their Thursday morning edition.

In it, McQuaid questioned whether the bill would stand up to scrutiny.

"Even the Senate’s legal counsel questioned if HB 125 would stand up to constitutional scrutiny, considering Article 8 of the New Hampshire Bill of Rights instructs that 'the public’s right of access to governmental proceedings and records shall not be unreasonably restricted,'" McQuaid wrote.

McQuaid cited a booking photo of a man taken into custody at Strange Brew Tavern in Manchester after a scuffle with police.

The incident happened in March of 2010.

The defendant, Christopher Micklovich, refused to be treated after the scuffle and his mugshot with a bloodied face was captured.

Micklovich was charged with simple assault, disorderly conduct, resisting arrest and criminal mischief.

Micklovich had broken eye sockets and a broken nose. What happened to him led to an investigation into the conduct of those arresting officers.

The officers remained on the force and fought to clear their names.

Micklovich received $200,000 in 2013 as part of a deal to settle a federal lawsuit against the city.

Two other states have acted on bills about mugshots in 2021 so far.

-Gov. Spencer Cox, R-Utah, vetoed a similar bill about booking photos in March, saying censorship by tech companies is a serious concern, and this action will not hinder nor prevent Utah from finding the right policy solution.

-A bill that would penalize those who post booking photos in Florida if they are required to remove them is awaiting a vote by the state's House.

Contact reporter Dan Alexander at Dan.Alexander@townsquaremedia.com or via Twitter @DanAlexanderNH

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