As Occupy Arrestees Arraigned, Iris Scans Affect Bail

EyeIris.jpg
SaraCartwright
Refuse to have your iris photographed, and your bail could go up.
​The 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."

[For an update on the courts' use of iris scans, click here.]

[npinto@villagevoice.com] [@macfathom]

Go to Runnin' Scared for all our latest news coverage.

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101 comments
Melisma1111
Melisma1111

All citizens of the United States should be on the same page in order to protect their freedoms from the this emerging totalitarian government.

Michael Cruise
Michael Cruise

"The New York Police Department began photographing the irises of people arrested in Manhattan in 2010...But the program drew criticism from criminal defense lawyers and civil liberties experts who expressed concern that it could infringe on individuals’ privacy, especially in cases in which the charges were eventually dropped.More than a year later, as the program has been extended across the city, opponents have renewed their objections and accused officers of sometimes pressuring people to submit to the photographs — which are supposed to be optional — by keeping those who do not comply in custody longer."

Lallabill
Lallabill

It's the same old story. They did it to me when I was jailed for 28 hours awaiting being arraigned in court. The most horrible, terrifying, ugly experience. And if you're given to even the mildest claustrophobia, a small cell in a precinct will deter you from making a stand for what you know to be right for even the staunchest of believers in justice.The establishment/police/fascist class will always win in the end. It amazes me that Americans are so naive. The rest of our citizenry is being dumbed down by daily disbursement by the media of mind numbing rubbish and turned into Orwellian troglodytes.

Mark Kapalski
Mark Kapalski

I predict the courts will make this mandatory everywhere. We have no protection.

kittylu
kittylu

Bail is only supposed to get you back to court.  Its never supposed to be used to coerce defendants. They have the right to say no to an eye scan. 

HUH?
HUH?

How is it robbery when the officer doesn't even own the badge that he/she is claiming the defendant attempted to steal ?

The badge, i.d, and firearm are ALL owned by the state. 

misterfrost36
misterfrost36

NDAA, Assassination Powers, Congress, Senate, White House, Drafters and signers need to be charged with Treason. When a Citizen makes war on his fellow Citizens its treason,  Indict them, make them prove their innocence in their own Court of laws. Freeze their accounts, investigate all financial holdings, bills laws, acts they've made are all evidence of their Collusion with foreign agents. Treason would negate anything they have ever had a hand in. I  know they would rebuke it but I think it would force them to show their true nature before they are ready and maybe throw them off balance. 

Alan8
Alan8

Our rapid descent into fascism is BIPARTISAN!

If you vote for EITHER of the corporate-funded parties, this is YOUR FAULT!

The Green Party is the progressive alternative. The Green Party doesn't accept corporate money and represents the 99%.

5% of the vote will get the Green Party matching Federal funds.

Your Green vote sends a message to the corporate parties that passing more fascist laws will cost them votes.

And this message is sent even if the Green you vote for loses.

VOTE GREEN!

Cherry Von Trash
Cherry Von Trash

and just who elects these corporate funded overlords anyway? is it the blind masses? or the electoral college? who's funding them? sorry to pop your bubble, but the green party doesn't stand a chance, nor do the libertarians.

Alan8
Alan8

"sorry to pop your bubble, but the green party doesn't stand a chance, nor do the libertarians."

You've been brainwashed by the corporate media and the 1% to think the only way the Green Party can make progress is to win 51% of the vote in a single election.

IN REALITY, new parties never win their first elections; building a new party is a PROCESS that spans multiple elections.  The Democrats did it.  The Republicans did it.  Why would you expect the Green Party to be any different?

Furthermore, losing even a few percentage points to the Green Party will alarm the Democratic Party, which will see this as losing "their" votes, with the threat of losing even MORE votes if they continue to serve the 1%.  This is how your Green votes can have a positive influence even before the Green Party starts winning at the state and Federal levels.

Getting 5% of the vote (and matching Federal funds) is certainly doable, as people are waking up to the BIPARTISAN support of the 1%.

This is the most direct way to challenge these corporate-funded overlords.

VOTE GREEN!

Elitist Not
Elitist Not

 I hate to burst your bubble but if no one showed up to vote CNN would report a projected winner regardless.

Kevin Schmidt
Kevin Schmidt

When is everyone going to stop pretending that we live in a free and democratic country?

We now live in a fascist dictatorship, not unlike 1934 Fascist Germany.

Don't get used to it, OCCUPY!!!

Locke-Fawkes
Locke-Fawkes

Occupy is the brownshirt in your analogy.The Obama-Soros engine that created them will grind them up when no longer needed.

ElizabethConley
ElizabethConley

The low moral character displayed by these police, prosecutors and judges raises serious concerns.  This sounds like conspiracy to deprive of rights, which is a very serious crime.

Elitist Not
Elitist Not

Well, wake up America.  It's a bit late though, but better wake up soon or else you will never be able to wake up even if you want to.

Danmooresent
Danmooresent

They can use biometric photographs to achive the "safety & security" excuse they are using to take the scan. I won't even let my optittist do it, After all it is the window to my soul.... A religious/ spiritual thing! A writ of mandamus is needed here to stop them from using it to this end. Find out what their data base is really being used for and make them stop in the higher courts.

Tony Connelly
Tony Connelly

Protesting will soon be "considered" to be domestic terrorism and the way to stamp it out will be using identifiers such as this. I don't think it is unreasonable to call this one step of a larger conspiracy to oppress the people. 

Elitist Not
Elitist Not

 Yeah, you are a bit late on this one.  Protesting is considered domestic terrorism already.  You are only allowed to protest in silent free speech zones mandated by the state now (if they are provided).  Welcome to Nazi America.

TheLight
TheLight

"Protesting will soon be "considered" to be domestic terrorism "??Soon be?Have you been following the new laws being implemented?

It's a done deal. Amerika is a Police State.

Sistersunshine61
Sistersunshine61

This is too scary...Mrs. Matheny, you required we read 1984...I NEVER thought it would be possible in my lifetime...

AussieObserver
AussieObserver

I find it laughable that pundits and politicians can still refer to USA as "The Land of The Free!"Crock of shite and people have been telling you for years... no ones listening.

BTW> Erosion by little bits at a time..  remember the "Terrorists won't win" and "Won't change the way we live"  Guess what...  They have WON and they HAVE Changed your lives..  you just either CAN'T or WON'T see it..

Serves your bloody selves right !!  Sorry, you need to wake up and smell what you're peddling.

Sjb
Sjb

At least that is better than the $50,000 bail myself and about 40 other occupiers got on January 28th in Oakland for "felony robbery" (which was an equally bogus charge to Moira's charge of robbery) and then after 4 days in jail, the DA never pressed charges. But before we could be released we had had to give them a DNA sample despite having never evan having attended an arraignment. The police and legal system is so far from bringing justice it's ridiculous!!! 

Guy
Guy

This is a practice that originated in Iraq and Afghanistan.  Keep an eye out for the rest of the tools of the trade that are sure to follow: drones, cell phone jammers, and surveillance blimp.

Teehee
Teehee

That's funny. He said: "Keep an eye out"

TheLight
TheLight

It has ALWAYS been that way.Out of control budgets with infinite resources, that YOU pay for and then they use the draconian technology against you...

spo1
spo1

The NYC Police Department is a disgrace. Here’s and organization who did NOTHING while Wall St con artists (in NYPD jurisdiction) almost destroyed the US economy. These Big Apple fascists to this day are roughing up Occupy protestors who are doing nothing beyond demanding accountability from the Wall St mafia. Now that House of Representatives Republicans are pushing the JOBS Act (Jumpstart Our Business Startups) with has NOTHING to do with jobs and everything to do with the same deregulation that caused the economic meltdown in the first place.

I’m going to make sure the Republican Corporate Ho Party goes down in history as liars/cheats with police protection. NYPD and police departments around the nation stomped on the the Constitution for a bunch of vain, greed stricken power mad silver spoon trust fund baby economic terrorists. From the likes of Charles Keating to the likes of Enron to the likes of a Corporate Crime Wave of EPIC proportions.

NYPD can send out it’s domestic spies for so-called Homeland Security to squash the news it protected the criminals who perpetrated the biggest looting of a nations wealth and resources in the history of mankind! “protect & serve my skinny Italian-American @$$”

Occupy Wall Street/USA is the NEWS! Listen to what they are saying and then compare it to the gd m’f***ing JOBS Act and the colossal CON the GOP is trying to push on the American PEOPLE! I feel threatened by the GOP, Rush Limbaugh and FOX News, so I’m moving to Florida where I can shoot them… (lol, sorry that was wrong)

Remember “OF, BY FOR the PEOPLE”? If the American people fail to DEMAND ethics, responsibility, accountability and AN END TO POLICE ABUSE OF POWER and EXCESSIVE FORCE… then freedom will become a delicate concept. I am somebody who fights against totalitarian tyranny spoact.blogspot.com.  

Sandy White
Sandy White

Yes, they could easily use fingerprints instead of retinal scans. To force someone who is considered innocent until proven guilty to have this scan is a joke. It is not like occupiers got arrested for murder and there is a murder suspect's retinal scan to compare theirs to, and even that should take a court order as collecting DNA does.

btmom
btmom

Why stop here? Just herd us all in and make us have iris photos. You know, in exchange for the privilege of leaving our houses.

Merri Teresa
Merri Teresa

Your are right there are so many more things going wrong with our lives of American freedom here... the whole world is in trouble

D. Jeep
D. Jeep

But.... but.... but..... this would never happen under Obaaaaaamaaaaa.

You sheep waking up yet? Or would it take a 4th Bush term (that means reelecting Obama) to shake most of you out of the false left right paradigm?

Most of you fell for the lies from "Bankster Puppet B". Bankster Puppet A was McCain.

I spend a lot of time dealing with fake conservatives who want a fascist warfare state, but the "other side" is pushing for a fascist welfare state. Either one will pull this crap as described in the article. The same people who were complaining about Bush and his torture are now silent about Obama and his NDAA and attack on the First Amendment. Of course those who complained about Clinton and his antics fell silent when Bush did it.

Do you guys see a pattern yet or will you go on being tools?

Abigail D.
Abigail D.

Yeah, because Occupy Wallstreet has been just *silent* in criticizing the current administration. *rolls eyes* You need to start paying attention.

Ed Rankin
Ed Rankin

the police state marches on.

faceshaker
faceshaker

Sounds like the NYPD is playing with a new toy.  I hope Occupy sues the pants off the NYPD for iris-scanning before conviction.  In fact, suing the pants of the NYPD would be a good way to raise MILLIONS OF DOLLARS FOR OCCUPY.

hostage707
hostage707

good for these folks. Our country was not fought and won by stay at home kiddies sucking off the government tit. A nation of sheep will beget a government of wolves. 

miseshayekrothbard
miseshayekrothbard

Unbelievable. But the occutards want things to be for the "common good" and socialism. That includes the police state.

shamocracy79
shamocracy79

 Oh look, another idiot who thinks the only alternative to corpratism is socialism.

What a good Fox news watching sheep you are.

TS13
TS13

Did you stay up all night to come up with "occutards?" 

Advocate4Liberty
Advocate4Liberty

Welcome to the U.S.S.A. Only the language has been changed to protect the guilty. If there is any question to whom I'm referring, it is "Judge" Blood Clott and his fascist co-conspirators.

SickOfTheStupid
SickOfTheStupid

Those of you that have any doubts we now live in a fascist police state with no justice for the citizens just are not paying attention.   Until we rise up it will only get more oppressive and corrupt.

Advocate4Liberty
Advocate4Liberty

Trust me, a lot of us know it. Sites like antiwar.com, lewrockwell.com and others provide a very deep view into the state of affairs. A Ron Paul presidency might be the only hope of reversing this before the country self-destructs, but idiots like the momster above will prevent that from happening. 

Most Americans are     a) too stupid and/or ignorant OR     b) dependent on the state (government "workers", state-dependent companies like defense contractors)to contemplate being productive members of a free society.

Momster9
Momster9

And they whine about liberal "activist judges". Hypocritical to the end (which, thanks to the Tea Party nuts, is coming like a freight train). 

britishnick
britishnick

"Officer, I conditionaly accept your offer to take an Iris scan. Condition 1 being that you pre-pay me in full $50,000.  Condition 2 that you prvoide full evidence that I have commited a crime where there is either an injured party or a breach of some contract, and that you produce that lawfuly binding contract.  Condition 3 being that you prove that you have been authorised to scan my eye by a living man or woman who willing to sign an affidavit under full commercial liablility and penalty of perjury that they are not violating my god given rights by doing so without my consent.  Do you accept my offfer or are you letting me go?"

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