On Sunday, Judge Abraham Clott declared in New York Criminal Court “Iris scanning is not optional…. It is not up to the defendant to decide whether to comply or not.” In the same session, Clott also set bail for defendants based in part on their refusal to submit to an iris photograph.
The next day, in the same courtroom, Judge Erika McDaniel Edwards took an entirely different approach, allowing defendants to be arraigned without having their eyes scanned.
The discrepancy raised the question of whether New York’s courts have a coherent policy with regard to the use of iris scans, and if so, what it is.
As it turns out, there is a policy, of sorts. Last month, Judges Clott and Edwards, as well as every other judge who sits in Criminal Court, received a memo on the subject.
Originally sent by Justin Barry, chief clerk of the New York City Criminal Court, on behalf of Judge Barry Kamins, the Criminal Court’s administrative judge, the memo was addressed to the court’s supervising judge, Judge Melissa Jackson, who passed it on to all judges in the New York City Criminal Court.
Here’s the full text of the memo:
Following a recent article in the New York Times on the subject, Hon. Barry Kamins asked me to restate the Office of Court Administration’s and New York City Criminal Court’s position on the pre-arraignment use of iris scans by the New York City Police Department (NYPD).
NYPD introduced iris scanning in the fall of 2010 to ensure that the wrong person is not brought before the court for arraignment either by mistake or as the result of coercion by another defendant waiting arraignment on more serious charges. This is done by a computer comparison of a photograph of the defendant’s iris at the time he/she begins the booking process and a photograph of the defendant’s iris immediately before arraignment. It is an NYPD initiative completed while the defendant is in NYPD custody. In some counties, the Court, as a matter of convenience, has permitted NYPD to complete the scanning process in the courtroom, as long as it is done in an area of the courtroom that is, by custom and usage, under NYPD supervision and it is done in a non-disruptive fashion.
As this initiative was implemented by the primary law enforcement agency tasked with bringing the correct defendant before the Court and it should be completed before the Court has exercised jurisdiction over the defendant, in most circumstances, the Court should not be involved in the process, unless a malfunction significantly delays the arraignment process or actions associated with the procedure disrupt courtroom decorum. Should this occur, the arraignment judge, arraignment coordinator or ranking court clerk, should reach out to the Borough Chief Clerk or myself and we will intervene with the appropriate NYPD supervisors to correct the situation.
The text may come as a relief to defense attorneys and civil liberties advocates who had rumors of a memo and worried that Judge Clott’s seemingly authoritative assertion signaled some new approach to iris scans on the part of the court system. But it doesn’t explain how, less than a month after receiving the memo, Judge Clott could be so stridently bringing his court’s power to bear on what the memo insists is an NYPD matter.
“If the issue needs to be clarified, then it will be,” said David Bookstaver, a spokesman for the New York State Courts. “But our policy right now is that this is a police department procedure and we’re not taking a position on it.”
It seems likely that, confronted with a clearly controversial policy on the part of the police that has no concrete grounding in statutory language, the courts are waiting for a suit against the NYPD to establish some case law on the subject.
There are certainly plenty of people and organizations who might want to bring that lawsuit.
“It is not unreasonable for an arrestee to refuse to consent to the NYPD capturing and storing a scan of their iris,” said Taylor Pendergrass, Senior Staff Attorney at the New York Civiil Liberties Union, “given that the procedure is not authorized by law, was implemented without any public discourse, and that it is unclear how the data is stored and whether there are any protections against misuse.”
There’s also the question of Clott’s use of iris-scan compliance to determine bail. While the memo doesn’t address it explicitly, New York law only allows judges to consider factors that might affect whether a person is likely to show up for their next hearing when considering bail. Willingness to add a photo of your eyeball to the NYPD’s collection doesn’t count, according to Pendergrass.
“When the suspect has already provided valid and verifiable identification information,” Pendergrass said, “the fact that a person objects to a legally questionable iris scan is not a lawful reason to impose more onerous bail terms or to delay their prompt arraignment”
Asked to comment on the record about whether there is a court policy on considering submission to iris-scans when determining bail, Bookstaver declined.
Here’s the original memo: