March 21, 2012
… 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.
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