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.
