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

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