Monthly Archives: April 2012

Misplaced Outrage: Defending the Supreme Court’s Decision On Inmate Strip Searches

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Preston Pope, Junior Editor, The Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Justice Kennedy and the Strip Searchers,”[i]Embarrass the Future?,”[ii]Strip Searches: The Supreme Court’s Disturbing Decision.”[iii]

This sampling of titles from blogs run on major news sources, along with an endless number of articles with less catchy titles, exhibits what seems to be a united sense of public outrage regarding the Supreme Court’s recent decision in Florence v. Board of Chosen Freeholders of County of Burlington.[iv] The decision confirmed the legality of strip-searching of all individuals taken into custody upon intake into jails, even in the absence of reasonable suspicion. While the decision permits results that are certainly troubling, such as the searching of arrested individuals who may not even be charged with misdemeanors, the outrage of opponents is misplaced towards a correct decision rather than at the underlying problem that placed these individuals in custody in the first place.

The concern is that this decision subjects individuals who have committed nothing more than a misdemeanor to a degrading and unnecessary process.  Indeed, the underlying offense leading to Mr. Florence’s arrest was a failure to pay a fine.  This offense creates absolutely no legitimate concern for officers to suspect him to be concealing weapons or drug contraband. Mr. Florence claimed that an invasive search of inmates, such as himself, without reasonable suspicion constituted an unreasonable search forbidden by the Fourth Amendment.

The process subjected Mr. Florence to shower with delousing soap. While he was undressed, officers checked for scars, marks, gang tattoos, and contraband. He was asked to open his mouth, lift his tongue, hold his arms out, and lift his genitals turn around and cough in a squatting position. All of this is done without touching by jail officials.

This is no doubt a humiliating and embarrassing process.  However, the appropriate standard for reviewing policies comes from the Supreme Court decision Turner v. Safly that says infringing on inmate’s constitutional rights is that it must be upheld “if it is reasonably related to legitimate penological interests.”[v] In other words, jail officials have broad discretion related to the creation of effective prison management and security. The primary concern of the process is maintaining safe and sanitary conditions for inmates. The intake of inmates is a prime source of risks with relation to these concerns. Incoming inmates into general population must be screened for contagious diseases, wounds needing medical attention, and contraband which any one of which would compromise the safety and sanitation of the jail’s general population.

With respect to individuals brought in on minor offenses, there are still concerns of contagious disease, lice and gang-affiliated tattoos that require a full inspection. With respect to inspection for contraband, the only reason to excuse individuals brought in for minor offenses would be if one’s offense is truly a proper indicator of their likelihood to carry contraband.

Particularly with respect to gang-members, it is not far-fetched for a low-ranking member who, for the purpose of this example has no gang tattoos or history of violence, to create reasonable suspicion for inspection, to drive around town at 100 miles per hour until he is arrested and then use smuggled weapons to kill a member of a rival or sneak drugs in for a fellow member serving longer time. Outside of gang-related examples, as Justice Kennedy comments, the seriousness of an offense can be a poor predictor of who has contraband or a tendency for violence. Despite Mr. Florence’s request that officers only inspect an individual who poses a reasonable suspicion, the task of drawing this line is difficult, if not impossible, and the consequences of drawing it incorrectly can be severe.

The difficulty of the task is exhibited by administrative costs, lack of information and fears of racial profiling.  With respect to information, officers often know little about an individual upon taking him into custody.  He may be carrying a fake ID or lie about his identity thus making it difficult to immediately access criminal history.  Additionally, if inspections are not routinely made, then it is difficult to justify any inspections in the absence of an arrest for a drug or violent offense. Outside of inspections upon these motivations, there would likely be claims of officers inspecting based upon an inmate’s race, or, in the alternative, there could be a hesitancy on the part of officers to inspect a reasonably suspicious individual due fear of such claims.

In light of the infeasibility of drawing an appropriate line, the considerable consequences of failing to inspect an individual who poses a threat to the health and safety of the prison population, and the generally broad discretion afforded correctional facilities in forming policies to solve problems, the Supreme Court’s decision is legally correct.

Somehow, the fact that the decision was based upon correct constitutional analysis does little to remove the absurdity of a situation such as a 90-year old grandmother being strip-searched for failing to wear a seat belt or having an expired car registration.  However, the problem lies with the underlying system in which this otherwise law-abiding old lady is put into custody in the first place.

In Atwater v. Lago,[vi] a case cited by the majority, the court allowed for a situation in which individuals arrested for minor offenses might be detained in jails. In an offense even lesser than Mr. Florence’s, Ms. Atwater was arrested for not wearing her seat belt. Despite the fact that this offense could not include jail time, the court found that officers may arrest her upon probable cause that she “committed a criminal offense in their presence.” In the name of investigating the crime, the police could bring her in for a minor crime just easily as for a major one.

According to Justice Kennedy’s opinion, jails alone, not including prisons, admit roughly 13 million inmates a year. Considering this number, it is beneficial for correctional officers to have standard procedures for inspecting inmates. Indeed, it is infeasible and ill-advised to adopt a different approach. The much more reasonable and feasible solution to preventing stories of strip-searching for failure to wear a seat belt is for policy makers to address what are offenses truly merit jail time.

As long as individuals are being brought to jail on minor charges, it is appropriately within the jail’s authority to have flexibility in providing for the inmate’s safety, the safety of the jail population and the correctional officers. While certainly an inmate has a concern of being strip-searched, on the other-hand there is a concern of being thrown into a jail, where other inmates have not been strip-searched.  As Justice Scalia explains it, “the same people who are suing [jails] for the strip search would be suing them for being stabbed by someone with a shiv.”[vii]

Florence v Board of Chosen Freeholders of County of Burlington.

“Justice Kennedy and the Strip Searchers.”  The New Yorker.

“Embarrass the Future?”  New York Times

“Strip Searches: The Supreme Court’s Disturbing Decision” Time

“Siding with Security Needs over Privacy Right” MSNBC

Atwater v. Lago Vista, 532 U.S. 318.

“Scalia Defends Strip Search Decision in USM Talk.”  Clarion Leadger   


[vii] http://www.clarionledger.com/article/20120404/NEWS/120404033/Scalia-defends-strip-search-decision-USM-talk?odyssey=nav%7Chead

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Before the Court: The Constitutionality of Life Without Parole Sentencing for Juvenile Murderers

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Erin Brennan, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

That is the question that is before the U.S. Supreme Court in cases being heard concurrently, Miller v. Alabama and Jackson v. Hobbs. The Supreme Court heard oral arguments on these cases on March 20, 2012. This issue has worked its way into the Supreme Court docket as a response to questions arising from a somewhat recent thread of cases including Roper v. Simmons and Graham v. Florida.

In Roper, the court looked at the constitutionality of the death penalty as a sentence for juveniles who were under the age of 18 when their crimes were committed[1]. The Court ultimately concluded in its 2005 decision that the death penalty for teenagers under the age of 18, was indeed, unconstitutional under the Eighth and Fourteenth Amendment.[2] The court relied on “the evolving standards of decency that mark the progress of a maturing society” in order to make a judgment in regards to which punishments reach the level of “cruel and unusual.”[3] The Court also looked to the fact that a majority of the states disallowed the death penalty for juveniles as indicia (evidence) of general societal views that juveniles are “categorically less culpable than the average criminal.”[4] As an illustration of this, in Justice Kennedy’s opinion, he indicated that “[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”[5]

Furthermore, the Court took this holding a step further in Graham. The Court, in that case, held that life sentences without parole are cruel and unusual under the Eighth Amendment in cases involving juvenile non-homicide offenders. The Supreme Court left unanswered the question of whether sentencing juveniles who committed murder to life without parole is permissible.

            The Court’s stance on this latest question could potentially affect over 2,000 prisoners who committed murder when they were under eighteen and are currently sentenced to life without parole.[6] However, 79 of these prisoners are imprisoned for crimes they committed when they were fourteen years of age or under, the ages of the defendants in Miller and Jackson.[7] Therefore, the repercussions of the Court’s decision could be felt by many more individuals if they broaden their holding to include those under eighteen years of age, or lessen its impact if the Court narrows its holding to preclude this sentence for those fourteen and younger.

            The Court will be facing a potentially difficult task in reaching a conclusion in this instance, as the Miller and Jackson cases present quite varied situations. The facts of the Miller case can be considered rather shocking. Evan Miller took part in (and arguably orchestrated) the killing of his middle-aged neighbor Cole Cannon in Alabama. Miller, fourteen at the time of the murder, and Colby Smith, his sixteen year old co-defendant, brutally beat Cannon in his trailer after attempting to rob him of approximately $300. The boys had already stolen a number of baseball cards from Cannon’s home earlier in the evening. The boys returned to Cannon’s trailer a short time after they left him to die, in order “to cover up the evidence” by setting the trailer on fire.[8] Cannon eventually died due to smoke inhalation from the fire.[9]

            On the other end of the spectrum, the Jackson case involves an arguably more sympathetic defendant. Kuntrell Jackson, also fourteen years old at the time, was charged with felony murder in the state of Arkansas.[10] Jackson did not shoot the victim, rather Jackson was with a group of boys when they robbed and shot a video store clerk with a sawed off shot-gun.[11]

            These two cases illustrate the wide variance of potential scenarios that could lead to a sentence of life without parole for a juvenile who is convicted of murder. It also raises questions about the mandatory nature of some of the states sentencing schemes. Currently, thirty-nine states allow sentences of life without parole for juveniles who commit murder.[12] Both Alabama and Arkansas, the states at issue in these cases, have mandatory requirements of sentences of life without parole for juveniles who are convicted of murder. In fact, around some 2/3 of states which permit life sentences without parole for juveniles require mandatory sentencing.[13]

            There is a good argument that mandatory sentences may also prevent the telling of the whole story involved with a case. If a person is automatically given the sentence of life without parole, it prevents the jury or the judge (whoever is carrying out sentencing) from considering relevant mitigating factors. For instance, just from reading the facts given above in the Miller case, a potential member of the jury may say to themselves it is justified that the young man was given a life sentence without the chance of parole. However, would they feel this same way if they learned that Evan Miller grew up subject to a childhood of abuse? That he was beaten by his alcoholic father? That his mother was a drug addict?[14]  That he turned to drug use and alcohol to cope with his situation at the age of eight?[15]  Even if these facts would change a jury’s mind, they do not play a significant role under the current mandatory sentence guidelines.

Some, including Miller’s defense attorney Bryan Stevenson, argue that sentences of life without parole should be done away with altogether for children under eighteen. In part, this argument hinges on the fact that America has one of the most severe systems of punishment for juveniles when compared to other countries.[16] In addition, Stevenson argues that the Court’s holding in Graham should not be limited to non-homicide cases because “[a]ll children are encumbered with the same barriers that this Court has found to be constitutionally relevant before imposition of a sentence of life imprisonment without parole or the death penalty.”[17]

 On the other hand, a number of legal experts would argue that a constitutional ban on these sorts of sentences for juvenile offenders would not be the most effective means of achieving a just result. As a victim right’s advocate Kent Scheindegger put it, “[A]ge is something to take into consideration in sentencing, but that one factor should not trump everything else.”[18]

At the end of the day the fact that this sentence is permitted by such a majority of the states may weigh heavily on the Court’s analysis in accordance with “the evolving standards of decency” under the Eighth Amendment. As Justice Scalia indicated during oral arguments, “[T]he American people have decided that that’s the rule. They allow it. And the federal government allows it. So I’m supposed to impose my judgment on what seems to be a consensus of the American people?”[19]


[3] Roper, 545 at 551.

[4] Roper,

[5] Roper, 545 at 553.

[17] Oral Arguments, Miller v. Alabama, No. 10-9646,  pg 3. March 20, 2012. http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-9646.pdf

[19] http://www.cnn.com/2012/03/19/opinion/steinberg-juvenile-crime/index.html?iref=allsearch

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

“Stand Your Ground”: Strike It Down

Kyle Mathis, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Kyle Mathis, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

On February 26, 2012, an African-American teen named Trayvon Martin was found shot to death in a small community north of Orlando. Who was his killer? George Zimmerman, a 28-year-old leader of the Sanford, FL community watch program; a position he had essentially bestowed upon himself.

Zimmerman remains a free man, protected by a Florida law known by many as a ‘Stand Your Ground’ law. Florida was the first of several states to pass a “Stand Your Ground” law which legally allowed someone to take proactive measures and use deadly force as a means of self-protection outside of their own home (which was the previous, traditional limit for such use of force).[1] Prior to the passage of the 2005 law, an individual faced with a situation which may call for self-defense was legally obligated to first and foremost attempt to flee. Because Zimmerman is able to claim that he suspected that Martin was committing a crime and that he “reasonably” believed that he was in personal danger, (it seems) he has been granted a certain level of immunity from being punished for his actions. This has created a good deal of controversy around the country.

Since the incident, bill sponsor, Former State Senator Durrell Peadon (R) and other members of the Florida legislature have started speaking out against this interpretation of their law.[2] They claim the Florida legislature did not intend this kind of result in passing this bill, but simply intended to provide a measure of self-protection for honest Americans. In fact, representatives have said that if the facts show that the alleged actions of Zimmerman on February 26 are true, then he will find no protection in their law. But that is not really their call anymore, is it? Now the matter is in the hands of the Florida justice system.

One provision of the law in question can be found in §776.013 of the Florida statute.[3] Specifically section (1) reads:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonable believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

A few things jump out about the text of this law and the facts of this situation. First, is the question of whether Zimmerman was even attacked. From what is publicly known about Zimmerman’s conversations with the police, they seem to indicate that, in fact, Zimmerman may have been the one who initiated contact with the teen. The second issue is the use of the ever problematic reasonable belief standard in a statute which allows one individual to end the life of another and potentially go unpunished for this action. Another provision of Florida law, §776.012, gives further possible protection to Zimmerman and reads:

 A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: (1) he or she reasonable believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.[4]

This provision may aid Zimmerman in attempting to defend his actions as it does not place a requirement on the individual to have been first attacked. However, even with 776.012, there is still a problem with the reasonable belief standard. A “forcible felony” as stated in both 776.012 and 776.013 is defined under Florida statute §776.08 and includes: “murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”[5]

  A classmate put these statutes in a way that really rang out for me: “Authorized Vigilante Justice.” Since hearing that, I have seen others voice a very similar opinion.[6] I grew up in South Central Texas, and I also own multiple firearms. I am a firm believer in an individual’s right to own and bear arms. Similarly, the right to defend yourself and your home are also codified in Florida statute §776.013. However, that right should not eclipse the rights of another individual’s rights.

Under the letter of the law there is a decent chance that a jury could find that Zimmerman reasonably believed that Martin was robbing a home, or any other of the many crimes applicable under §776.08. That is the problem. The state of Florida has allowed the beliefs of an individual with a gun to become a form of justice, and that simply should not be permissible.

There is no claim that Trayvon Martin actually committed a felonious crime or was in the process of committing one before his encounter with George Zimmerman that fateful night. But even if Martin had done something wrong, he is owed several things by our justice system, including the right to have a jury determine whether he is actually guilty of committing any crime. Instead, being a lone outsider in a community late at night seems to have given Zimmerman a right to take on the roles of everyone in our judicial system, from police officer to judge to executioner. The due process rights (not to mention the life) Zimmerman stole from Martin that night show, in and of itself, why the Florida law, as written, is simply unacceptable.

This is not to say that the idea of a “Stand Your Ground” law cannot work. It can. However, no law which gives an individual a right to end the life of another should be based on a standard that they reasonably believed that one thing or another was going to happen. An officer cannot arrest me without some measure of probable cause and a judge cannot sentence me to death until a prosecutor has proved to a jury that I have committed a crime punishable by death beyond a reasonable doubt. However, because Zimmerman was just an average citizen with a gun, he is allowed an almost indefinable standard by which to decide whether Martin had the right to continue living.

For a law of this type to be effective, it will take a clearer statute and standard by which to determine whether a crime is happening and a narrower definition of what allows an individual to initiate the use of deadly force against another. Several of the listed forcible felonies are obviously understandable (such as arson, sexual battery, aircraft piracy, etc.); however, others do not seem to warrant the punishment of potential death by citizen. For example, under Florida law, one is allowed to kill another if one finds it reasonably necessary to prevent them from committing an imminent car-jacking. To save the possession of a third-party from being stolen, it would be ok to kill someone. This is unreasonable.

The Florida courts should have the opportunity to look at Zimmerman’s case, if only for the fact they could have the opportunity to strike the law down and force the legislature to re-assess the how the law is written. Clearer definitions need to be implemented so that an individual must have more than just a subjective belief that a crime is being committed or that someone is threatening them. It may not be as extreme as needing to see a weapon, but a level of accountability must be in place for those who will take it upon themselves to put the words of 776.012 and 776.013 into effect.

We may never have a clear picture of what happened that night between Martin and Zimmerman Sanford, Florida. Instead, we will get a picture that involves a nation displaying a level of rage and debate over the actions taken that night by Zimmerman. Some have called this a race issue, and they may be right.[7] There is not enough known about Zimmerman to know if he would be driven by racial prejudice to act in this way. Others will say this is a gun rights issue, and they may be right, too.[8] There are many issues at play here. But in the end, I see only one solution being the correct one under the United States Constitution, and that is to arrest and try George Zimmerman for murder allowing for him to officially raise his self-defense claim (up to this point it has been the decision of the police and District Attorney’s to not arrest Zimmerman as they have determined he acted within the bounds of Florida statutes §776.013 and §776.012 in a court of law. Then it should be the responsibility of the courts to shoot down the defense and rule this law to be unconstitutional, so that Zimmerman is punished for his actions and the state of Florida’s legislature will be forced to fix this law so that another person will not feel justified by over-zealously taking the life of one of their fellow men.


[8] http://www.thenewamerican.com/opinion/950-bob-confer/11309-qstand-your-groundq-and-self-defense

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

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