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Pinto reports: "... protesters and their legal advisers were surprised yesterday to learn that the size of their bail was being affected by whether defendants were willing to have the distinctive patterns of their irises photographed and logged into a database."

Arrestees in New York City face larger bail if they refuse to have their eyes scanned by the NYPD. (photo: AETNA)
Arrestees in New York City face larger bail if they refuse to have their eyes scanned by the NYPD. (photo: AETNA)

NYPD Scanning the Irises of Arrested Occupy Protesters

By Nick Pinto, The Village Voice

21 March 12


Occupy Wall Street: Take the Bull by the Horns


he first of the more than 70 Occupy Wall Street protesters arrested Saturday afternoon and evening were arraigned yesterday in Manhattan Criminal Court.

Exhausted by a night and day in jail and shaken by the violence of the police response to Occupy Wall Street's six-month anniversary celebration, many burst into tears of relief when they were finally released to the friendly welcome of the movement's Jail Support team.

Unlike many of the other defendants with whom they shared cells, the protesters could feel confident that they would soon be released - Occupy posts bail for those arrested during movement actions.

But protesters and their legal advisers were surprised yesterday to learn that the size of their bail was being affected by whether defendants were willing to have the distinctive patterns of their irises photographed and logged into a database.

Police and courts have been photographing irises since 2010, once at booking and once on arraignment. The practice is a response to a couple of instances in which mistaken identity allowed someone facing serious charges to go free by impersonating another defendant up on minor charges.

The idea of the state collecting distinctive biometric information from people who haven't even been charged with a crime yet, much less convicted of one, makes civil libertarians nervous, though, and over the last two years they've pushed back. Unlike fingerprints, they argue, no law was ever passed to require iris photographs - it's just a policy. And while police regularly tell arrestees that the photographs are mandatory, and that failing to be photographed will prolong their stay in jail, defendants have often refused to comply without serious consequence.

That appears to be changing. Yesterday, a defense lawyer had told Judge Abraham Clott she was under the impression that her client - not affiliated with Occupy Wall Street, facing charges of marijuana possession - was not legally bound to submit to an iris photograph. Clott responded in no uncertain terms: Iris photographs may be optional in the sense that the court can proceed without them if it has to, he said, for example if the photographic equipment breaks down. But they are not optional for defendants.

Judge Clott wasn't going it alone in this strict interpretation. National Lawyers Guild NYC President Gideon Oliver said that a memo, presumably from the Office of Court Administration has been circulated to judges, instructing them that iris photographs are mandatory.

Even if iris photographs could be made mandatory, though, they should never be used in setting bail, said Moira Meltzer-Cohen, a third-year law student who helps run Occupy Wall Street's bail services. "In New York, bail can only legally be set for a single purpose: to ensure that defendants appear at their next hearing," she said.

To evaluate someone's flight risk, courts can look at things like their employment, ties to the community, nearby family, a history of bench warrants, and the severity of the charges they're facing. If someone doesn't look like they're a flight risk, they're supposed to be released on their own recognizance, or ROR in court short-hand.

In the case of one Occupier arraigned yesterday, all the indicators pointed to an ROR. She was employed, her parents were sitting in the courtroom, and it was her first encounter with the justice system. Initially charged with resisting arrest and attempted robbery, the prosecutor dropped the second charge when he acknowledged that it arose from the arresting officer claiming she made a grab for his badge, even though the officer conceded he never thought she was trying to steal it.

Nonetheless, the prosecutor asked for $1,000 bail because the defendant had refused to let her iris be photographed. Judge Clott agreed, to the great dismay of Meltzer-Cohen.

"Even though all of the legitimate bail factors militate against setting bail, he did it anyway," she said. "Bail is not supposed to be used in any kind of punitive way. He's using his discretion as a judge to enforce a non-enforceable practice."

Several other Occupy protesters saw their refusal invoked as a justification for bail yesterday, but posted the money and were released. But Oliver said he has another client who's refusing to submit to an iris photograph, and that, police are refusing to produce him in court for arraignment until he does.

"It's a question of who will blink first," Oliver said last night, adding that if it goes on much longer, he'll file a writ of habeas corpus.

"It may well come to that tomorrow," Oliver said. "If this had come up earlier, I might be doing that now." your social media marketing partner


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+35 # Willman 2012-03-21 19:39
Makes me not wanna go to NYC as a tourist.
I guess they don't care about civil liberties.
Surveillance of religious people and now this as well as much more injustice.
The big apple appears to be rotten almost to the core.
+23 # Anarchist 23 2012-03-21 21:55
Welcome to the New World Order. Did you see 'Minority Report' the Tom Cruise movie that came out a few years ago? Iris scans are a big part of policing in it. When you enter Thailand, an iris scan is mandatory to enter the country, curtesy of the Fascist GSA (Geheim Staats of Amerikkka-the Country Foremerly Known As The USA) With the militarization of society and the police, we are already under partial martial law. Your freedoms now consist of your choice of thousands of unsafe products made by the same three corporations and of course McDonalds vs. Burger King. Order up!
+1 # Granny Weatherwax 2012-03-22 06:57
For the records, Geheime means secret, hidden. I am not sure how the the "In your face" state of America is hidden or secret.
In your face in the best of cases, of course.
+29 # DaveM 2012-03-21 22:00
That disproportionat e bail is being given to defendants facing the same charges raises a Constitutional issue--possibly more than one. I do hope the ACLU is on this.

I won't be visiting New York any time soon, that's for sure.
+2 # reiverpacific 2012-03-21 23:03
This is pretty bizarre, even for the "national security" state.
O'-well, at least "THEY" are showing their true colors - a kind of mucky blue with slimy yellow undertones.
Wait for the (surely) pending endoscopic equipment -even y'r bowels are suspect if not in absolute lockstep motion with the status-quo, which will probably end up disappearing up it's own paranoiac tendencies, a bit like the guy in Bobby D's "Talking John Birch Blues" (heh-heh).
+2 # dyannne 2012-03-21 23:50
Were these judges appointed by George W. Bush?
+3 # panhead49 2012-03-22 09:14
Occupy their jails - refused to bail out. Refuse to have your iris scanned. I'm in CA and the prisons are sending scores and scores of inmates back to local jails (which are overcrowded too). Don't post bail, don't waive time for your speedy trial. Occupy the courts.
0 # Vardoz 2012-03-23 10:42
Since the recent threat by one congressman to gather Facebook passwords, we will no longer use Facebook. I called my rep and told him that we were withdrawing from Facebook not only because the govt is threatening to invade our facebook passwords but also because they are spying on everything else. We are fed up and I hope many follow because Facebook is a big business that is used to invade and assault everyone's privacy.

As the world is in the throws of irreversable Global Warming threatening our very existence, the NSA is spying on everyone and spending billions to do it. I asked what the objection was to warrents for spying so that there was some accountability and it seemed to work very well for decades? They don't answer the question. I asked if all regard for the Constitution was gone?
I didn't need an answer for that one. Just imagine if thousands stopped using Face book! If you want to join in call your reps and tell them. 202-224-3121.

We are just sick of being abused and very upset that we are living in a lawless nation where we can be taken away without any legal recourse at all. They have taken away our right to due process and now they are spying on us in such a vast way it would shock Orwell.

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