Nobody, but nobody, expected a different outcome after oral argument in Florence v. Board of Chosen Freeholders. After Tom Goldstein’s painful oral argument, it was a fait accompli. And yet, the decision of the Supreme Court majority sends chills down the spine.
From the New York Times :
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.
It’s not that the rationale behind permitting routine strip searches of anyone being placed in general population is unsound. It’s true that anyone could, theoretically, secrete contraband inside a body cavity. It’s true that smuggling contraband into jails and prisons is a very real problem, and a heck of a side business for guards who like nice cars.
But that the Supreme Court based its ruling on deference to the screws is shocking. Who are they to question the judgment of prison officials? They are the defenders and protectors of the Bill of Rights, the special Nine who tell the prison officials that they don’t get to do anything they please. They are the ones charged with setting limits, with watching the watchers, with limiting the discretion of government folks whose interest in making their job easier doesn’t trump the right of human being not to be subject to every degradation they come up with. They are the Supreme Court. They have failed us.
Justice Stephen G. Breyer, writing for the four dissenters, said the strip-searches the majority allowed were “a serious affront to human dignity and to individual privacy” and should be used only when there was good reason to do so.
Justice Breyer said that the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.
Like who, you ask?
According to opinions in the lower courts, people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.
A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.
And what was Justice Kennedy’s response?
Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.
If this strikes you as absurd, as in what good it would have done had this been the case when Timothy McVeigh was ticketed for driving without a license plate, then join the club. If the point is that bad dudes are sometimes stopped for small things prior to committing heinous crimes, so what? There’s nothing about it that suggests a strip search, had they been arrested and placed into general population, would have unearthed a bomb. Perhaps it’s just the idea that we would all feel better knowing that McVeigh had to squat and cough before he blew up a courthouse?
But more importantly, this means that tens of thousands of Americans who, through the greater glory of our legal system find themselves placed in jail over trivial (or mistaken, or even non-existent) matters will be subject to one of the most humiliating and dehumanizing experiences a person can endure because a justice can dream up two (count ’em, two) examples of really bad people who got traffic tickets.
This is not a case about hardened criminals who have been arrested for serious crimes being able to skirt inspection as they bring weapons or drugs into prisons. Nobody argued that should be the case, though there remains a decent argument that even serious crimes in terms of penalty, such as stock fraud, really don’t offer much of a reason to conduct a cavity search. But that wasn’t on the table.
This is about the people who pose no meaningful threat to anyone, who in a society with better control over their police would never be in the position of being put in jail, being left to the discretion of their jailors. It’s about the unpaid speeding ticket (even if it had in fact been paid and some grocery clerk neglected to update the computer), the protesting nun, the guy nabbed for contempt of cop, being put through the wringer because they can.
And now, they can. Because Justice Kennedy doesn’t think he and the four others who told him to write an opinion think they have any business second-guessing prison officials. And because the last man to speak on all of our behalf, to argue this point so that our wives, husbands, daughters and sons won’t be needlessly, pointlessly, irrationally, subject to this fundamental degradation of common human dignity, failed.
Should you find yourself in the clutches of a screw who tells you to drop your pants and squat, remember that it didn’t have to be that way. It shouldn’t be that way. And yet it is. Now you know who to send the thank you note to. This is an utter disgrace, and hopefully, in a decade or two when the composition of the court changes and a competent advocate steps forward to address this issue again, we can undo the shame of this decision.