The Supreme Court has granted cert in a case that presents both an issue that demands resolution, and that has to anger anyone who isn’t a badgelicking apologist.  A very odd combination.  It’s the case of Albert Florence, whose crime was payment of the fine for a traffic ticket.

From the Philly Inquirer :

On Monday, the court agreed to hear the case filed on behalf of Albert Florence, who spent six nights in the Burlington County Jail and a night in the Essex County Jail in 2005. He was strip-searched at both facilities before a judge confirmed that he had been arrested in error and let him go.

Florence was a passenger in a BMW being driven by his pregnant wife, and the registered owner of the car.  When it was stopped for speeding, a warrant for Florence popped up for nonpayment of an old ticket.  The problem is that not only had Florence paid the ticket, but he had certified proof of payment in hand.  So what?  The cop hauled him in to protect the children. 

It took seven days to figure out the warrant was issued in error.  You can’t rush these things, you know.  After all, if they let him out and later determined that he should have been arrested, think of the children put at risk of fine-nonpayment in the interim.  Get your priorities straight.

But the issue before the Supremes isn’t the arrest, the error in issuing a warrant for a paid fine, the seven days to figure out the obvious. No, those are the regrettable side-effects of the new professionalism.  The issue is the propriety of conducting a full strip search, with extreme prejudice, of Albert Florence and others like him, arrested for a minor infraction and for whom there is absolutely no reason to suspect the possession of weapons or contraband as he enters the correctional system.

While most appellate courts have held that such searches are unconstitutional, citing the 1979 Supreme Court decision Bell v. Wolfish, four recent decisions have upheld the practice as a way of maintaining prison security, concluding that other decisions improperly interpreted Bell.

“The Third Circuit is now the law of the land” throughout that circuit, said attorney J. Brook DiDonato, who represents Burlington County. DiDonato said that the finding and confiscation of weapons during strip searches protects people like Florence. Most violence is directed at other inmates, he said.

Security of correctional facilities is a curious problem.  It’s true that it protects those inside from the introduction of weapons into the facility that are more likely used against other prisoners.  Don’t prisoners deserve to be protected?  Wouldn’t there be justified outrage if Florence had been murdered inside the jail (allowing for the detail that he never should have been there in the first place) because of the failure to search and locate a weapon being brought in by another person?

You bet there would be outrage.  And yet there is also outrage at the idea that everyone, no matter how trivial their offense or utterly lacking in reason to suspect they possess a weapon, is subject to a terribly demeaning, intrusive search.

At the New York Times, Adam Liptak wrote about the petition for cert, detailing some of the less than obvious arguments in favor of searching everyone, no matter what the reason for their custody (like violating a leash law or non-payment of child support).

Although the judges in the majority in Mr. Florence’s case, the one heard in Philadelphia, said they had been presented with no evidence that the searches were needed, they nonetheless ruled that they would not second-guess corrections officials who said they feared that people like Mr. Florence would smuggle contraband into their jails.

It was suggested that people might commit trivial offenses to get themselves put into a facility without a search in order to smuggle contraband to people already inside.  No, really.

“It is plausible,” Judge Thomas M. Hardiman wrote, “that incarcerated persons will induce or recruit others to subject themselves to arrest on nonindictable offenses to smuggle weapons or other contraband into the facility.”

But the most disingenuous argument was that others, similarly situated to Florence, would want to endure a cavity search.

But jails are dangerous places, the brief said. “It might even be argued that those arrested on nonindictable or other ‘minor’ offenses would be particularly anxious,” the brief reasoned, to make sure that everyone around them was thoroughly searched.

To my knowledge, no one has ever demanded a cavity search when the screws decided to take a pass.  Just in case.

The fact that people can, and do, hide some rather remarkable things within their body cavities is undeniable.  Short of a ’57 Bel Air, it’s perpetually amazing what some people are willing to insert in their bodies.  The problem isn’t theoretical and presents very real concerns about the introduction of contraband into the system. It’s not like that doesn’t mean searches work, as contraband gets into jails constantly anyway, but it similarly not like they don’t manage to intercept a significant amount of contraband in the process.

The problem is risk/reward, whether there is a point at which concerns about the nature of things done to an undeserving person on the off-chance that it may offer some marginal potential for safety.  Despite the absence of meaningful statistics, should 10,000 litterers be strip searched in order to find one person with a dime back of marijuana in his rectum?  Or a shiv?  Or 100,000 litterers?

The Third Circuit’s decision in Albert Florence’s case, refusing to impede corrections officials decisions to search ’em all, reflects an abdication of its duty to safeguard the public from the government.  It’s not that they can’t make the choice of holding that cavity searches are constitutional, but that they’ve merely deferred to the judgment of others. 

The problem is that the court acquiesced in the decision to use extreme intrusive measures for an extremely low probability problem.  The notion that people walk around littering in the hope of smuggling weapons concealed in their rectum into the jail may be “plausible,” but is hardly reasonable. 

On the other hand, the court utterly failed to recognize the extent of harm caused by cavity searches, treating it as some mere trivial rite of passage into the jail.  It’s demeaning and humiliating, an experience not to be treated so cavalierly.

Of course, it’s plausible that a federal judge might be nuts, say bipolar, and have a hankering for guns and hatred for blacks, causing him to robe up and take the bench with a weapon concealed on his person.  It could happen.  Perhaps, in the interest of safety, if judges were subjected to the occasional body cavity search, they would have a greater respect for a person’s right to bodily integrity in the absence of a reasonable suspicion to believe otherwise.

Safety is a wonderful thing.  But if a strip search is not a big enough deal to require a reason for it, then let the judges who happily defer to the judgment of those doing the searches rather than being searched get a taste of what they impose on others.  If they are less than thrilled at the prospect of being searched for the combination of a  traffic infraction and a warrant issued in error for themselves, then the rationale is no stronger when it’s our butts on the line.