Tuesday, April 3, 2012

Bend Over and Grab Your Ankles

Supreme Court Allows Strip-Searches for Any Crime:

The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.

Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

Let me first start out by disappointing some of you: this decision isn't all that bad. If you scroll through the majority, they make it clear that while this applies to any defendant arrested for any crime (even the most benign of misdemeanors), it only applies to defendants who are mixed into a jail's general population.

In other words, if you are arrested for any kind of bond-able offense, and you make bail/bond without ever leaving the intake area, you are not going to be strip-searched. This only applies to defendants who, for whatever reason (the nature of the crime, inability to bond out), are given a uniform and mixed into the general population of other inmates (pre-trial detainees, those convicted and awaiting transfer, the local trusty's, etc.). Many of the 13 million people who rotate through the jail system bond out within hours and would not be affected.

Having spent the better part of the past two weeks in our local jail (for "research" of course), I can attest to the staff's desire to keep contraband eliminated in the general jail population (although ironically, the five justices in the majority fail to mention that most contraband in jail or prison is brought in via staff; they say nothing about whether strip-searching correctional or jail officers will be next).

And in many ways, when you are given the uniform and told to shower, most inmates are already being visually strip-searched by the staff. This is basic standard protocol in most operating jails throughout the country.

All of that said, the decision itself is one of most poorly written and reasoned decisions I've ever read. Kennedy, usually one of the more eloquent justices on the court, is tongue-tied and engrossed in Hollywood visuals of jails and human anatomy all the way through the opinion. Check out some of these gems.
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.
Which he fails to illustrate.
If, for example, a person arrested and detained for unpaid traffic citations is not subject to the same search as others, this will be well known to other detainees with jail experience. A hardened criminal or gang member can, in just a few minutes, approach the person and coerce him into hiding the fruits of a crime, a weapon, or some other contraband.
Gasp. "In just a few minutes" they can transform you from unknowing doofus who forgot to pay your traffic tickets to drug mule for the Escobar brothers in Mexico.

And then, in an effort to draw a line from your leash law violator to a full-blown terrorist, there is this truly bizarre litany of infamous suspects who supposedly did minor things prior to or following a truly heinous crime.
People detained for minor offenses can turn out to be the most devious and dangerous criminals (deputy at a detention center shot by misdemeanant who had not been strip searched). Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search of everyone who will be admitted to their facilities.
LOL. Because if we had done full anal cavity searches on them out on the side of the road, we would have found, what, the blue-prints to the 9/11 attacks? McVeigh's dastardly plan for Oklahoma City? And since none were taken to jail, wtf does that have to do with the issue at hand?

Like I said, one of the worst Kennedy opinions ever. Even the Chief Justice and Alito were like "we agree with the outcome, but this opinion is wack" in their concurrences.

Look, I sympathize with the dissenters, who I think eloquently make the case for these kinds of strip-searches to be rarely invoked. Justice Breyer lays out the ignominious nature of it:
A visual inspection of the inmate’s naked body...should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must in addition, squat to expose the vagina...In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable search” forbidden by the Fourth Amendment.
Completely agree. The country (and the Supreme Court) seems obsessed these days with groping everyone's package. From testicular searches at airports, to invading vaginas via forced ultrasounds, the government's voyeuristic obsession with our private anatomy is almost Beevis and Butthead in its nature.

But I also recognize corrections officials desire to maintain the safety of both staff and other inmates. A little meth stashed away in your cheeks (ahem) is bad, but a knife or gun-wielding lunatic who was "missed" in the initial pat downs is a threat to everyone. The majority errs on the side of the jail staff, who suffer more than 10,000 assaults each year, and having heard the various war stories over the years from seasoned correctional officers, I don't think that's a bad thing.

I don't like the decision, but I understand it.

The case is Florence v. Board of Chosen Freeholders (2012).

UPDATE: Some people are making a big deal out of the fact that Obama's justice department wrote a brief in support of strip-searching, but this isn't new information. SCOTUSblog had their brief up online months ago.

I'd rather note the irony: a justice department and incompetent attorney general who regularly give a pass to the biggest criminals in society (Wall Street), instead want to strip-search traffic and leash law violators. Maybe we should have Eric Holder strip-searched to check for his head.

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