|Refuse to have your iris photographed, and your bail could go up.|
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."
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