OWS activists’ bail affected by refusing iris scans after brutal crackdown

image credit: Chad Miller/Flickr

Madison Ruppert, Contributing Writer
Activist Post

I have spent a great deal of time covering biometrics and how this information is centralized in a federal database which can be shared with other agencies and even international “partners” as well.

Over recent years, there has been a clear and concerted effort to increase the amount of biometric information collected on American citizens, along with a rise in the force (direct and indirect) of the tactics leveraged by government agencies in their quest to obtain biometric information.

This was evidenced most recently by a disturbing, and likely illegal, tactic used against Occupy Wall Street protesters after they were arrested in one of the most brutal police actions we’ve seen in quite a time.

Indeed the arrests were so out of hand, a member of the New York City Council actually used the word “brutal” in describing the atrocious response. Members of the press were also allegedly harassed, attacked and otherwise prevented from doing their job according to many of their statements on Twitter.

One of the most disturbing incidents can be seen below when a young woman actually had a seizure at which point police carried her by her head and she had to wait a considerable amount of time (17 minutes according to some reports) before professional medical help arrived and protesters outside of the barricades reportedly had to call 911 to get the EMT to come.

This situation gets even more troublesome when we consider the statements of Ryan Devereaux on Democracy Now.

“Attorneys with the National Lawyers Guild are particularly concerned because, despite repeated efforts, they haven’t been able to speak to her,” Devereaux said.

“These attorneys have told me that in most cases, it would be easy for them to speak to a potential client, to speak to someone who is—you know, who’s in police custody but has been hospitalized. But those efforts have been stopped. It’s unclear exactly why,” he added.

If you want to know more about this situation, I encourage you to check out this link, but keep in mind that it involves Michael Moore and I do not, by any means, consider Democracy Now to be an unbiased and uncompromised source of information. I recommend taking it with a grain of salt, although that’s my point of view when it comes to any and all news sources.

The situation for these activists got even worse during arraignment in Manhattan Criminal Court. While most of these protesters were charged with very minor crimes, they were soon to find out that they could not be released on their own recognizance (or ROR in courtroom jargon) if they did not agree to have their irises photographed by police.

Activists and their volunteer legal advisors discovered that the size of their bail was actually being swayed by their willingness to have their irises photographed and input into a database.

According to Runnin’ Scared, a blog with the Village Voice, photographing of irises by police and courts, at both the time of arrest and at arraignment, in the United States dates back to 2010. Nick Pinto, writing for the blog, claims that it was due to multiple instances of a mistaken identity wherein an individual facing quite serious charges was allowed to go free by impersonating an individual facing relatively minor charges.

However, I see this as part of a greater trend of increasing the amount of highly personal biometric information which is collected from the people of the United States, all to be put in centralized databases indefinitely.

Of course, there is also the major problem that, apparently, people have their irises photographed at the time of arrest and arraignment, meaning that even if they drop some frivolous charge after arresting you and let you go free with no charges filed, they still have your iris scan on file.

This is actually not the first time these problems have cropped up in the news. Indeed, in February of this year, the New York Times reported on a 32-year-old woman who was arrested at an Occupy Wall Street demonstration in December.

This individual, named Samantha Wilson, said that she was threatened by an officer after she refused to have her irises photographed.

“He said: ‘It’s not really optional. It’ll take you longer to get out of here if you don’t do it,’” she said when recalling the officer’s threat. Rebecca Heinegg, Wilson’s lawyer, says that she was held for longer than usual due to her refusal to have her irises photographed and put in a database.

This program is supposedly mandatory, and obviously police pressure suspects into agreeing to the practice by holding them longer and even manipulating the amount of money they have to pay for bail.

This is not only happening to individuals arrested for activities linked to Occupy Wall Street. Indeed, when a defense lawyer for an individual charged with marijuana possession told Judge Abraham Clott that she believed that her client was not legally bound to agree to have their irises photographed, she discovered that the court did not see it that way.

Judge Clott said that while the process of having irises photographed and placed in a database might be optional in that the court can technically go forward with proceedings without the photographs if the equipment used to take the pictures breaks or some such other factor arises, they are not, in fact, optional for the defendant.

Judge Clott is apparently not alone in his radical interpretation, as revealed by the president of New York City’s National Lawyers Guild, Gideon Oliver.

Oliver alleges that a memo, likely from the Office of Court Administration, has been given to judges, telling them that the iris photographs are actually mandatory.

Runnin’ Scared quotes Moira Meltzer-Cohen, a third-year law student who assists in running Occupy Wall Street’s bail services, who said, “In New York, bail can only legally be set for a single purpose: to ensure that defendants appear at their next hearing.”

However, I’m not one to take the word of one person (especially someone who is not yet an actual lawyer) as gospel, so I did some digging myself and found the actual New York Criminal Procedure that is relevant to this issue.

This is Article 510 – § 510.30 Application for Recognizance or Bail; Rules of Law and Criteria Controlling Determination in the New York Criminal Procedure.

If you read the following (the entirety of which is here), you will see that the refusal to have one’s irises photographed cannot, in any way, affect bail according to New York Criminal Procedure.

§ 510.30 Application for recognizance or bail; rules of law and criteria controlling determination.

[…]
2. To the extent that the issuance of an order of recognizance or bail and the terms thereof are matters of discretion rather than of law, an application is determined on the basis of the following factors and criteria:

(a) With respect to any principal, the court must consider the kind and degree of control or restriction that is necessary to secure his court attendance when required. In determining that matter, the court must, on the basis of available information, consider and take into account:

(i) The principal’s character, reputation, habits and mental condition;
(ii) His employment and financial resources; and
(iii) His family ties and the length of his residence if any in the community; and
(iv) His criminal record if any; and
(v) His record of previous adjudication as a juvenile delinquent, as retained pursuant to section 354.2 of the family court act, or, of pending cases where fingerprints are retained pursuant to section 306.1 of such act, or a youthful offender, if any; and
(vi) His previous record if any in responding to court appearances when required or with respect to flight to avoid criminal prosecution; and
(vii) If he is a defendant, the weight of the evidence against him in the pending criminal action and any other factor indicating probability or improbability of conviction; or, in the case of an application for bail or recognizance pending appeal, the merit or lack of merit of the appeal; and
(viii) If he is a defendant, the sentence which may be or has been imposed upon conviction.

(b) Where the principal is a defendant-appellant in a pending appeal from a judgment of conviction, the court must also consider the likelihood of ultimate reversal of the judgment. A determination that the appeal is palpably without merit alone justifies, but does not require, a denial of the application, regardless of any determination made with respect to the factors specified in paragraph (a).

Clearly, there is no mention of such a thing as refusing an iris scan being able to influence bail, and this judge is simply following a memorandum instead of the law.

In the case of an activist with Occupy Wall Street who was recently arraigned, all of the above factors would indicate that she would be released on her own recognizance.

Her parents were actually sitting in the courtroom at the time of arraignment, she held a job, and most importantly it was her first time dealing with the justice system.

She was initially charged with resisting arrest and attempted robbery. The prosecutor later dropped the attempted robbery charge with the prosecutor acknowledged that the arresting officer claimed that the defendant grabbed at his badge while the officer still affirmed that he never believed she was actually trying to steal the badge.

Even considering all of the above factors, the prosecutor requested $1,000 bail because the individual refused to have her iris photographed, to which Judge Clott (unsurprisingly) agreed.

“Even though all of the legitimate bail factors militate against setting bail, he did it anyway,” Meltzer-Cohen stated. “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.”

Others who were arrested for their activities related to the Occupy Wall Street demonstration also had their refusal to have their irises photographed brought up as justification for bail, although they were able to post the bail and be released.

Oliver said that another client – who assumedly is related to Occupy Wall Street, although that is not made explicit – is being targeted for his refusal to bow down and have his biometric information recorded.

Police are now refusing to produce him in court for his arraignment until he agrees to have his irises photographed, according to Oliver. He even said that he would file a writ of habeas corpus if they did not produce him in court soon.

“It may well come to that [today],” Oliver said. “If this had come up earlier, I might be doing that now.”

Clearly, the criminal procedure in New York State does not allow for refusal to hand over biometric information to be used as a factor in considering bail, but unfortunately the judges have apparently given up on that entirely.

Hopefully bringing attention to this disturbing practice and the complete illegality of it will bring some heat and push them to stop it, but unfortunately when judges and prosecutors are working together against the people they are supposed to serve, no good can be expected to come from it.

Did I miss anything or make a mistake? Would you like to submit your own writing for publication or tip me off to a story? Email me at [email protected]

This article first appeared on End the Lie