Almost a year ago Justice Anthony Kennedy wrote (pdf), “Prisoners retain the essence of human dignity inherent in all persons.” This week in Florence v. Board of Chosen Freeholders of County of Burlington (pdf), Kennedy abandoned the commitment to the inherent dignity of those held in custody by the state and ruled that correctional authorities have virtual blanket authority to strip-search arrestees.
In yet another 5-4 decision, with the justices lined up predictably, a majority of the highest court in a country that advances freedom and liberty as core values issued an opinion that reads as though it were written for the prison wardens’ association. With ominous, stentorian tones, Kennedy warns that “the difficulty of operating a detention center must not be underestimated by the courts.” We are told by Kennedy that “jails are often crowded, unsanitary and dangerous places.”
We are educated on ingenious methods used by prisoners to hide contraband: “Something might be tucked or taped under an armpit, behind an ear, between the buttocks, in the instep of a foot.” We are warned that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.” Kennedy patiently explains to us that “[d]etecting contraband concealed by new detainees … is a most serious responsibility.”
All of this may be true, but it is startling to read an opinion on a case this important that expresses greater empathy for the details of prison administration than concern for the constitutional implications of empowering the state to degrade millions of nonviolent arrestees with the use of strip searches. It is not just that the prose is plodding and pious. What’s shocking is the staggeringly weak effort by the majority to address the implications of this stunning decision for the privacy rights of anyone held in custody.
While the court has long held that jail officials may search those arrestees who are suspected of hiding contraband or carrying weapons, the petitioners in Florence argued that jail officials may not strip-search every arrestee. Instead, they argued, the constitutional prohibition against unreasonable searches and seizures requires officers to have a reasonable suspicion that an arrestee may be armed or concealing items or substances.
In rejecting this argument, the court has now granted authority to jail officials to strip-search even those arrestees who appear to pose no threat. The motorist arrested for failing to use a seat belt, the individual arrested for failing to pay child support or for driving under the influence, the anti-war protester and the Occupy Wall Street activist can all be subjected to strip searches.
It is estimated that 14 million people are arrested in the United States each year, many for traffic infractions or other nonviolent offenses. In fact, fewer than a million arrestees are accused of violent crimes. Millions of arrestees are never charged. Many more are never convicted. Thus, the implications of the court’s decision requiring deference to jail officials in the conduct of strip searches are broad and disturbing. Given the effect of stop-and-frisk, driving-while-black and other forms of racial profiling in law enforcement, the racial implications of the court’s decision are staggering.