Supreme Court Issues Forth Baffling Decision on Strip Searches

As we noted yesterday, it is difficult to imagine a more baffling ruling than the one the Supreme Court issued earlier this week in which the majority led by Justice Anthony Kennedy, in a 5-4 decision, somehow concluded “that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes.”

The ruling allows officials to strip-search individuals who are arrested for any offense, no matter how minor, even when there is no reasonable belief that the individual has weapons or drugs.

The ruling effectively defers judgment to “correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items.”  The ruling therefore does not require strip-searches, but rather allows the correctional facility to exercise its own judgment.

Writes Justice Kennedy, “Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process.”

The New York Times notes, “The procedures endorsed by the majority are forbidden by statute in at least 10 states and are at odds with the policies of federal authorities.”

The American Bar Association, in their brief to the Supreme Court, argued, “A strip search of detainees like Mr. Florence upon admission to a prison, without some other individualized reasonable suspicion, is not justified by security concerns, and is therefore inconsistent with the respect for the human dignity of prisoners to which the ABA is deeply committed.”

In fact they cite their own standard, “No prisoner should be subjected to cruel, inhuman, or degrading treatment or conditions” and note, this language is directed from the Universal Declaration of Human Rights and “such language is repeated in various multilateral treaties to which the US is a party.”  They write, “The key concept in international law interpretations of these concepts is respect for human dignity.”

Stephen Breyer in dissent argued that the nature of the strip search is a “serious affront to human dignity and to individual privacy that it presents.”  Justice Briar acknowledges the need to manage and maintain levels of safety and thus writes, “Minimizing he threat of gang violence, and detecting contraband are ‘legitimate penological interests,'” therefore he agrees that the court ought to “normally defer to the expertise of jail and prison administrators in such matters.”

Where he draws the line is that the “invasion of interests,” he argues, “must be ‘reasonably related’ to the justifying ‘penoogical interest’ and moreover that ‘need must not be exaggerated.’ “

Writes Justice Breyer: “Amicus briefs present other instances in which individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search.”

Cited were an example of a nun who was arrested for trespassing during an antiwar demonstration, as well as “individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell.”

He writes, “I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of those arrested for minor offenses are necessary in order to fur­ther the penal interests mentioned. And there are strong reasons to believe they are not justified.”

Justice Breyer writes, “Indeed, neither the majority’s opinion nor the briefs set forth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard.”

“In an appropriate case, therefore, it remains open for the Court to consider whether it would be reasonable to admit an arrestee for a minor offense to the general jail population, and to subject her to the ‘humiliation of a strip search,’ prior to any review by a judicial officer,” he writes.  “For the reasons set forth, I cannot find justification for the strip search policy at issue here – a policy that would subject those arrested for minor offenses to serious invasions of their personal privacy.”

However, Justice Kennedy argues, “People detained for minor offenses can turn out to be the most devious and dangerous criminals.”

Indeed, he notes, “Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate.”  He adds, “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.”

The ACLU said on Monday, “A split Supreme Court ruling that people arrested for even minor offenses can be subjected to a strip search puts the privacy rights of millions of Americans at risk.”

“Today’s decision jeopardizes the privacy rights of millions of people who are arrested each year and brought to jail, often for minor offenses,” said Steven R. Shapiro, legal director of the ACLU. “Being forced to strip naked is a humiliating experience that no one should have to endure absent reasonable suspicion. Jail security is important, but it does not require routinely strip searching everyone who is arrested for any reason, including traffic violations, and who may be in jail for only a few hours. “

“The practical impact of the decision remains to be seen,” Mr. Shapiro added. “Ten states prohibit strip searching minor offenders as a matter of state law, and those laws are unaffected by today’s opinion. In addition, the Court was careful to recognize that strip searches may still be unconstitutional under certain circumstances.”

“The best way to preserve the privacy of the millions of Americans who are arrested each year for minor offenses,” Mr. Shapiro said, “is not to put them in jail in the first place. Instead, we should be using cheaper and more effective alternatives to incarceration.”

Newspapers across the nation have blasted this decision.

Wrote the Sacramento Bee on Wednesday, “Even from their exalted perch, Supreme Court justices ought to be able to put themselves in the shoes of those affected by their rulings.”  They add, “A majority of the court utterly failed that test with the decision Monday allowing authorities to strip-search people arrested for any offense, no matter how minor, before holding them in jail.”

Notes the Bee, “The minority opinion tracks the law in at least 10 states, including California. State law bars strip-searches of those arrested for infractions or misdemeanors unless the offense involves violence, weapons or drugs – or there is ‘reasonable suspicion’ that a person is concealing contraband. Federal policy and international human rights treaties also frown upon blanket strip-searches.”

As the Bee notes, “But too often when law enforcement is given discretion in such matters, it is abused.”  They cite the class-action lawsuits and multimillion-dollar settlements over strip-searches in Sacramento County.

The Philadelphia Inquirer writes, “The court’s opinion is rooted in utter paranoia, the worst of all influences on public policy.”

Justice Kennedy said the court should not second-guess prison officials, but the paper argues, “But that is exactly why there is a court – to second-guess officials when they ignore constitutional rights and freedoms. In this case, the court threw away the individual’s basic right not to be punished before being adjudicated.”

The paper adds, “It is baffling to consider that the U.S. Supreme Court, the esteemed arbiter of Americans’ rights and freedoms, could possibly think that cavity searches might have saved the Oklahoma City and Flight 93 victims.”

Andrew Rosenthal, writing for the NY Times, likewise writes, “Justice Kennedy said courts are not in a position to second-guess correctional officials in this area. Funny, I thought that was exactly what the courts were supposed to do. If the Supreme Court won’t, who will?”

Writes the LA Times, “The court’s decision goes too far. Jailers have a responsibility to make sure that their facilities are secure, but they can do so without the blanket authority the court has given them.”

As Mr. Rosenthal notes, the police can make mistakes.  This case in fact, was based on a mistake.

“In 2005, a state trooper pulled over Albert Florence’s wife for speeding. He was in the passenger seat of his BMW, and a records search indicated an outstanding warrant for an unpaid fine. Actually, he’d paid the fine. The records were wrong,” he writes.  “But Mr. Florence was unjustly held for a week in jails in two counties and strip-searched twice. Adam Liptak wrote in The Times that there is agreement he was compelled to stand naked in front of a guard and move intimate parts of his body. There’s a dispute over which parts. Who cares?”

Exactly.  The idea that you are going to catch the next Timothy McVeigh based on a strip search of an individual detained or arrested on a minor violation is a one in a billion shot that ought not drive public policy.

I am all for allowing the correctional facilities leeway, but it should be based on reasonable suspicion and probable cause, not at their own whims.

—David M. Greenwald reporting