Mark D. White examines today’s Supreme Court ruling about the legality of strip searches in US jails.
In a decision handed down today, the Supreme Court voted 5-4 to allow strip searches of anyone arrested for a crime, even for minor offenses. In his opinion, Justice Anthony Kennedy (joined by Justices Roberts, Scalia, Thomas, and Alito) defended the constitutionality of the practice based on the interests that corrections officers have in the safety of everybody in jails (including the suspects themselves) and the impossibility of knowing exactly who is likely to have contraband.
While this case raises questions about the proper balance between human rights, dignity, and privacy on the one hand and security and safety on the other—a balance most of us are more familiar with from airports rather than jails—I’d like to highlight instead the basis of one of Justice Kennedy’s arguments, the state of our jails:
It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population. (p. 13, emphasis added)
Note that this case is about jails, where suspects are held until they are arraigned, not prisons. We hear plenty about deplorable conditions in prisons but not enough about jails, the inhabitants of which are presumed innocent until found guilty. It’s bad enough that we house our convicted criminals in places that are “crowded, unsanitary, and dangerous,” so isn’t worse that our jails, mere holding cells for those suspected of a crime, can be described in the same terms?
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Reading about that reminds me of my time in jail. I can remember how scared I was on intake, how dehumanizing it felt to be stripped naked, inspected, and then given some formless clothes to put on. You acclimate quickly though – you’re either going to use the stainless steel toilet in full view or you’re going to be holding it an awful long time. The showers are timed, so there’s no waiting for a less crowded moment and the guards aren’t going to let you play wallflower.
I remember when as a teen I first heard this track on Ice Cube’s album The Predator, it seemed something of an exaggeration. Boy was he spot on about the experience.
This piece is inaccurate.
Page one of the opinion clearly states that this has to do with inmates being admitted into general population, not to everyone brought to a jail. In the vast majority of jurisdictions minor crimes will not result in someone being admitted to the general population.
Furthermore, the majority opinion, and the concurrences by both Roberts and Alito (without whom the majority would fall apart), all state that it would be likely be unreasonable to admit individuals held on minor offenses to the general population. Roberts expressly points out that the instance examined here deals not with someone brought in on a minor offense, but someone who had a warrant issued for their arrest (a minor crime would usually involve a summons or a ticket, not a warrant).
So, no, the opinion does not allow strip searches for “anyone arrested for a crime, even for minor offenses.”
You should keep reading the opinion. See pp 14-15 for example:
Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest. This record has concrete examples. Officers at the Atlantic County Correctional Facility, for example, discovered that a man arrested for driving under the influence had “2 dime bags of weed, 1 pack of rolling papers, 20 matches, and 5 sleeping pills” taped under his scrotum.
And you should read the opinion more closely…
From the majority opinion:
“This case does not require the Court to rule on the types
of searches that would be reasonable in instances where,
for example, a detainee will be held without assignment to
the general jail population and without substantial contact
with other detainees.”
“The circumstances before the Court, however, do not
present the opportunity to consider a narrow exception
of the sort JUSTICE ALITO
describes, post, at 2–3 (concurring opinion), which might
restrict whether an arrestee whose detention has not yet
been reviewed by a magistrate or other judicial officer,
and who can be held in available facilities removed from
the general population, may be subjected to the types of
searches at issue here.”
From the Roberts concurrence:
“it is important for me that the Court does not
foreclose the possibility of an exception to the rule it announces. JUSTICE KENNEDY explains that the circumstances before it do not afford an opportunity to consider
that possibility. Ante, at 18–19. Those circumstances
include the facts that Florence was detained not for a
minor traffic offense but instead pursuant to a warrant for
his arrest”
From the Alito concurrence:
“It is important to note, however, that the Court does not
hold that it is always reasonable to conduct a full strip
search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of
those arrested for minor offenses are not dangerous, and
most are released from custody prior to or at the time of
their initial appearance before a magistrate. In some
cases, the charges are dropped. In others, arrestees are
released either on their own recognizance or on minimal
bail. In the end, few are sentenced to incarceration. For
these persons, admission to the general jail population,
with the concomitant humiliation of a strip search, may
not be reasonable, particularly if an alternative procedure
is feasible. For example, the Federal Bureau of Prisons
(BOP) and possibly even some local jails appear to segregate temporary detainees who are minor offenders from the general population.”
They’re all pretty clear that the majority opinion does not deal with “anyone arrested for a crime, even for minor offenses” as the author of this piece suggests.
Oh, but it does. The problem is that if you find yourself in the general population for a minor crime or wrongfully, as the plaintiff was, you are subject to search. The opinion and concurrences don’t provide guidelines on whether you should be in the general population, only that the opinion doesn’t give license to search if you are not. If I’m picked up for a bench warrant on a failure to appear for some minor infraction, and my jail doesn’t segregate the populations, I’m subject to this type of search.
From experience I know that just because some jails segregate the populations it doesn’t mean all do. When I was in jail there were people in for open container violations, public urination, failure to appear, etc. We were all in the “general population” while we awaited a chance to appear before the magistrate. And we were all subject to cavity searches.
Nick, please read again. Note this part explicitly:
” For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.”
From a constitutional standpoint, this is HUGE language, because this case, and all search cases, deal explicitly with the 4th amendment, which prohibits unreasonable search and seizure.
So, when the Supreme Court states explicitly “this may not be reasonable” that literally means “this may violate the constitution.”
The majority opinion, and the concurrences, all state that this opinion does not govern whether or not it is reasonable to strip search someone brought in on a minor offense and then fed into the general population, especially when alternatives are available.
You are reading something into the opinion that is expressly guarded against.
The problem is that this case did not ask the question “Is it okay to dump everyone in general population?” Instead it asked the question “Can we strip search everyone who is put into general population?” The majority opinion, and the concurrences all stated that the answer to “Is it okay to dump everyone into general population?” may very well be “No” but that this question was not asked here.
Indeed, the Roberts concurrence explicitly states:
“Florence challenged suspicionless strip searches ‘no matter what the circumstances.’” when explaining why he concurred.
If Florence had made a different argument, we may very well see a different opinion. He did not, so we do not.
I’m not sure what you’re reading in there that I’m not.
While they say it may not be reasonable to admit everyone to the general jail population, they also explicitly say this opinion doesn’t adjudicate that issue.
But what this opinion does address is that when you are admitted to the general jail population, such a search is reasonable.
That’s all I’m saying. That seems to be what you’re saying as well. There are jails that throw everyone in together (whether that is okay or not is to be decided at some future date). And in those jails it’s now reasonable to perform a cavity search irrespective of why the person is in jail.
Are you seeing language that says differently?
The specific issue deals with how prison policies are governed. The controlling cases are Block v Rutherford and Turner v Safley. Both of these cases examine the standard of an “exaggerated response” to determine whether or not a prison policy is appropriate.
In Turner, the court specifically held that the existence of a reasonable alternative policy was strong evidence that the existing policy was an exaggerated response, and thus unconstitutional.
This language is expressly mimicked in the Alito concurrence, and hinted at (in an obvious way) by Roberts. Even Kennedy admits that he does not consider the question of whether or not it is appropriate to throw everyone into general population.
The justices rarely write dicta unless they mean for it to communicate something. In this instance, it seems very clear that they are trying to communicate a preference relating to how often strip searches can actually be performed upon arrest.
The point is: they would not have listed this exception AT ALL if they did not believe that it was significant. They simply could have written “Strip searches are always acceptable, no matter what,” yet they did not. Furthermore, they told us WHY they did not: they specifically drew attention to a potential exception to the rule, and both Alito and Roberts harped on this point.
It’s difficult to exaggerate how important this is. It would not be in the opinion if it was not relevant.
Quite frankly, the US Constitution doesn’t say jack squat about ensuring anyone’s safety or security. The tradeoff is mentioned in the letter of transmittal, but only in the context that Constitution itself was framed with that tradeoff heavily considered. The resulting US Constitution itself very explicitly forbids unreasonable search and seizure, and again doesn’t say squat about safety or security.
What was that quote, again? “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” ~Ben Franklin
A couple SCOTUS members need to be arrested for treason, and then strip searched real good, just because they said it was OK. That might change their mind. These people are obviously privileged well beyond being in touch with an average citizen’s experience.
And seriously… a couple dime bags of weed and 5 sleeping pills is going to hurt someone?!? I don’t think so.
Personally I think we need to take a long, hard look at our entire prison (and jail) system, and this is just proof of that. If our only choices are allowing strip-searches when entering holding at a jail, or potentially letting dangerous contraband into jails, then we must be doing something wrong. We need to re-examine how we deal with people who commit crimes and look at whether locking someone up really makes sense, particularly with regards to holding people who have yet to be arraigned.
We’re using a system that’s 200 years old; to say it’s outdated is an understatement.
I think your point bears merit. These kinds of powers are important, and I do think they’re useful to protect people, but its kind of a sticking your finger in the dam level of problemsolving: If it’s come to that then the solution can’t stop there.