OWS protest

It remains unclear whether there is compelling state interest in forcing retina scans on peaceful protesters exercising their right to free speech in a public place, but that's just what the New York Police Department is doing to the Occupy Wall Street activists.

Over 90 Occupy Wall Street protesters were arrested Saturday afternoon, and some were arraigned yesterday in Manhattan Criminal Court, but not before learning that the cost of their bail would spike exponentially - or that the opportunity to post bail would be denied arbitrarily - if protesters did not submit to retina scans.

Activists and lawyers alike were surprised yesterday to learn that the size of protesters' bail was being punitively 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.

Collecting retina scans is controversial. "The larger [the database] becomes, the greater the chance is of a fortuitous 'hit', false conviction, and unnecessary stress on individuals and resource deployment by the police," says Professor Allan Jamieson. Also, most police departments do not yet have a reliable systems for preventing evidence tampering and/or contamination of evidence, particularly that of the non-biometrics variety. The OJ Simpson murder case, wherein LA policeman Mark Furhman was shown to be a racist who likely planted biometric evidence in OJ's Bronco and at the murder scene to frame the defendant, illustrates the root problem with using biometrics to fix a problem that only requires honest police work.

There is also the matter of cost and accuracy. Despite alleged low false positive/negative rates, the technology is extremely expensive given the nation's economy weighed against any benefit gained by using biometric scanning on the average citizen, namely someone not a rogue Interpol agent or international terrorist. Further, accuracy can be compromised by disease. As disease rates increase in our population, particulary cancers and eye diseases, the accuracy of biometrics will continue to decrease.

Finally, there is confusion about whether police initiated biometrics are mandatory or merely voluntary. A Manhattan defense lawyer in court at the time of the Occupy arrests told Judge Abraham Clott she was under the impression that her client 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.

Controversy surrounding whether retina scanning is legal may stem from the fact that a private organization, National Lawyers Guild, through its NYC President Gideon Oliver, issues a memo to its member judges instructing them that iris photographs are mandatory. This mandate has not been publicly issued by the Federal government or by states.

But whether retina scans are mandatory begs the question of its usage in setting bail. In most states, and New York is no exception, bail can only legally be set for a single purpose: to ensure that defendants appear at their next hearing.

Several Occupy protesters saw their refusal invoked as a justification for bail
, 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.