The Freedom Bulletin

This week the Supreme Court heard arguments in the case of Albert Florence. Horrifically, Mr. Florence was wrongly arrested due to a computer mistake for failing to pay a traffic fine, which he had actually paid, and was then thrown in jail and strip searched twice. The Court is deciding whether New Jersey’s practice of strip-searching all inmates who are held in jail before trial is constitutional.

Interestingly, the more “liberal” justices seemed more opposed to strip searches and the more “conservative” ones seemed to lean toward supporting them.

Justice Sotomayor said that much contraband enters jails ”not on intake, but…from corrupt correction officials” and reminded her fellow justices of a very important principle, asking, ”What are we doing with the presumption of innocence? That’s also a constitutional right.”

Justice Kagan contrasted this case with a 1979 decision approving body cavity searches after contact visits, saying, ”Here, you are talking about somebody who is arrested on the spot. There is no opportunity for planning, for conspiracy with respect to contraband.”

Justice Scalia claimed that strip searches were routine at the time the Bill of Rights was ratified. Although I don’t know for sure, that would be very surprising to me. He also implied that it would be okay to strip someone “to see if the person has any fleas or cooties or, you know, any other communicable disease before he is put into the general population.”

My view:

Although jail officials and people who support strip searches do not refer to them as a punishment and do not conduct them for that purpose, being subjected to such a degrading invasion of privacy is unarguably a punishment, and a severe one at that. It is always wrong to inflict punishments on people who have not been convicted of a crime, both from a common-sense point of view and according to the Fifth Amendment to the Constitution, which forbids that anyone ”be deprived of life, liberty, or property, without due process of law.” Heck, you could even argue the more radical position that strip searches, even of people who have been convicted of crimes, are unconstitutional because they are a “cruel and unusual” punishment under the Eighth Amendment.

Looking at the debate from a slightly different angle, using common sense about searches and seizures also makes it clear that strip searching people, when there is no reason to suspect they may be hiding weapons or contraband, is unconstitutional. If someone is arrested, then presumably there is reasonable suspicion that they committed some crime. But the strip search is not related to finding evidence of a crime, it is done for safety and security purposes. If the inmate has done nothing to raise suspicion of smuggling contraband, then there is no reasonable suspicion to conduct a strip search, and it therefore violates the Fourth Amendment. This is even more true when someone is arrested for a minor offense such as failing to pay a traffic ticket.

A lawyer from the Department of Justice told the Court, ”You cannot say that there are some minor offenders that don’t pose a contraband risk. You have individuals who are making (a) very quick determination. They have very little time, and if they guess wrong, those mistakes can be deadly.” But a strip search is a severe violation of a person’s dignity, privacy, and sexual integrity. The burden of justification must always be on those who want to inflict such a violation, and it is certainly not enough of a justification that there is some chance, however small, that the person might have contraband. If you don’t have enough time to figure out which inmates raise a reasonable suspicion, you shouldn’t be searching anyone.

In my opinion, this particular case is a no-brainer. Punishing people in this way, when they must be presumed innocent and have done nothing to raise suspicion, is unconstitutional, and I hope the Supreme Court recognizes this.

This is truly awful:

“In March 2005, Mr. Florence was in the passenger seat of his BMW when a state trooper pulled it over for speeding. His wife, April, was driving. His 4-year-old son, Shamar, was in the back.

The trooper ran a records search, and he found an outstanding warrant based on the supposedly unpaid fine. Mr. Florence showed the trooper the document, but he was arrested anyway.

A failure to pay a fine is not a crime. It is, rather, what New Jersey law calls a nonindictable offense. Mr. Florence was nonetheless held for eight days in two counties on a charge of civil contempt before matters were sorted out.

In the process, he was strip-searched twice.”

This guy, Albert Florence, was sexually assaulted for allegedly not paying a fine on a traffic violation, even though he actually paid it. How could the government of New Jersey think this is okay? Strip searches with no probable cause shouldn’t even be allowed for people convicted of the most serious crimes, let alone people merely accused of crimes, let alone people accused of something that isn’t even a crime.

Very sadly, several courts have upheld such degrading and suspicionless searches, starting with Bell v. Wolfish in 1979, although other courts have ruled that strip searches can only take place when the inmate is reasonably suspected of having weapons or contraband. I hope that the Supreme Court takes Mr. Florence’s case and stands up for human dignity by taking the latter view.

New Jersey governor Chris Christie is known for speaking his mind and following through on his promises. Although perhaps not the most eloquent or elegant, he has had some real results in his first year in office:

“When Christie took office, his state faced an $11 billion shortfall. His approach was to declare a state of emergency and start reducing state spending. No new taxes was his campaign promise, and he has lived up to that commitment. He has taken on the powerful state employee unions and is fighting against automatic teacher tenure.

He added to his popularity when he told the federal government to keep its billions and killed a $9 billion tunnel project under the Hudson River for commuter trains. The project was the most expensive transportation project in the country. Christie said his citizens couldn’t afford it, and he didn’t want them liable for potential billions in overruns. He said ‘Thanks but no thanks!’”

Read the rest at CNN.

Many people want Christie to run for president in 2012. He says that he’s focusing on his current job right now, which I think is probably a good decision, since he has three more years left in his term. Whenever he decides to run, if at all, he’s definitely someone I would consider supporting.

There are some stories that make me think, “Why on earth would someone do that?”

This is one of them:

“The New Jersey attorney general’s office is reviewing the case of a Rutgers University freshman who jumped from the George Washington Bridge last week after images of him having sex with another man were broadcast on the Internet, and will decide whether to prosecute the incident as a bias crime, a spokesman said Thursday.”

“A body pulled from the Hudson River was identified Thursday as that of Tyler Clementi, 18, of Ridgewood, N.J. His death was ruled a suicide. Clementi’s roommate, Dharun Ravi, and a friend of Ravi’s, Molly Wei, have each been charged with two counts of invasion of privacy for using a webcam to film and transmit footage of Clementi having sex in his dorm room.”

I cannot, for the life of me, comprehend why someone would decide to tape their roommate having sex and put it on the Internet.

I don’t necessarily agree with the idea that this (alleged) crime was homophobic or a hate crime. The accused students may not have been motivated by hatred for gay people, and even if they were, I don’t think that would be any worse than if they were just motivated by hatred for Tyler as an individual.

Taping someone having sex and putting it on the Internet is cruel, wrong, and violates their rights regardless of whether they are gay or straight. It’s a shame that the maximum penalty for this is five years in prison (10 if it is a hate crime), considering that people can get more than that for victimless crimes like gun possession and drug use. If they are indeed guilty, the two suspects’ actions directly caused the victim’s death, so I certainly don’t think it would be inappropriate to charge them with homicide.

Some of the comments that people have posted about this case (here for example) are horrific. While most commenters actually have brains and hearts, some have posted that being gay is vile and despicable, that Tyler committed suicide because he knew that what he did was wrong, that anyone who commits suicide must have something wrong with them, that Ravi was the real victim because he had a gay roommate, and that he had a constitutional right to secretly tape Tyler having sex and put it on the Internet.

Although it must be annoying when your roommate has sex in your room, Ravi and Wei seem to have done the taping not out of frustration but because they thought it would be funny to humiliate a fellow student. Ravi did not seem at all threatened, upset, or even inconvenienced, happily tweeting things like “”I saw him making out with a dude. Yay.” and “Anyone with iChat, I dare you to video chat me between the hours of 9:30 and 12. Yes it’s happening again.” Tyler did not commit suicide because he had “issues;” he committed suicide because two people decided to violate his rights and humiliate him, something that no one should have to deal with. As for the claim that Ravi had a right to do what he allegedly did, ask yourself this question: What is more important, the right to secretly tape people and put it on the Internet, or the right not to have people secretly tape you and put it on the Internet? I think the latter.

The bottom line is that the two suspects in this case, if guilty, are bullies. Tyler’s sexual orientation is irrelevant; the case would be just as tragic, and the alleged crime just as evil, had he been straight. Humiliating another person – whether gay, straight, bi, or asexual - is not funny, and in this case it cost a young man his life.

There’s hope for America!

Virginia, New Jersey elect Republican governors

Edit: And… Maine rejects same-sex marriage law