A couple of weeks ago, the Supreme Court made a decision that paved the way for breaches of personal privacy that go above and beyond what is necessary to keep our jails safe.
A majority of the justices, 5-4, ruled against plaintiff Albert Florence in Florence v. Board of Chosen Freeholders. It was concluded 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.” New Jersey resident Florence was forced to undress and was subjected to strip searches following his arrest on a warrant for an unpaid fine. That Florence had already paid the fine was unknown to law enforcement authorities at the time.
Justice Kennedy, joining traditionally conservative justices on the bench, wrote in his majority opinion that “search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions.”
“Inmate privacy” is an interesting description for rights that the dissenting justices argued are protected by the Constitution. Since Florence’s pursuit of the case in higher courts, questions about his Fourth Amendment rights have abounded. Constitutionally, Florence and all other citizens are protected against “unreasonable searches and seizures,” which Justice Kennedy emphatically asserts is a right tempered by a need for safer conditions in detention facilities.
While Justice Kennedy used the term “jails” to refer to all detention facilities, including prisons, it is the questions raised about those individuals being held before trial that really interest me. The majority of the 13 million people admitted to American jails each year are admitted pre-trial.
Florence was arrested and taken to jail for a non-violent, non-drug-related crime. There is no indication that his civil infractions, even if they were unlawful, created a sufficient profile of his character to give reasonable suspicion that he would be carrying weapons or contraband. He was subjected to humiliating strip searches multiple times once in the county jail — not only was he forced to undress, but to move his genitals around time and time again while officers conducted a cavity search.
Just like every inmate in New Jersey jails, Florence already had to submit to pat-down searches, pass through metal detectors, shower with delousing agents and have his clothing searched that evening. All this, despite a warrant for a non-violent crime. It begs the question of why Florence, and undoubtedly countless other inmates in jails across the country, are subjected to such invasions of personal privacy.
The majority decision pointed to the expertise of DOCS employees in knowing how to keep jails safe as a justification for allowing strip searches. It argues that we should trust officials’ discretion in these matters, because they know better than the rest of us how to fix problems in detention centers, and strip searches are the way to do so.
When investigating crimes, police officers also know better than the average private citizen, but that does not mean that the law allows them to act freely on that specialty. We have infrastructure to support citizens’ rights against unreasonable and excessive searches and force. Officials at county jails, who undoubtedly also have great expertise in matters of criminal behavior, should likewise be unable to bypass citizens’ rights in cases where they have been convicted of no crime.
While it is the police and the DOCS’ job to assume guilt to solve crimes, it is the court and the Constitution that must step in to protect citizens’ rights when they haven’t even been tried for a crime yet. Crimes take place inside and outside of jails; the rules for inside jails must be the same as outside. Acting on unfounded suspicion, racial suspicion or socioeconomic suspicion has never been acceptable before. Prisoners have sacrificed their rights by breaking legal code — many people in jail, on the other hand, have not been tried and found guilty, thereby sacrificing their rights. So, while they must be detained, they are still entitled to Constitutional rights at the very minimum.
When Arizona enacted legislation allowing police officers to check legal documentation because someone looks like he or she might be an immigrant, scores of people from both ends of the political spectrum were appalled. If an inmate in a county jail, pre-trial and presumed innocent by the courts, looks “thug” or “hood,” should it be O.K. for DOCS officials to “use their expertise” and subject them to unreasonable searches?
We are not keeping most people safer in jails if inmates are humiliated to catch them with cigarettes or marijuana or even knives. This decision paves the way for emotional and psychological damage to thousands of potentially innocent arrestees to make the process more thorough. I found the weakest part of the majority decision to be their use of the euphemism “inmate privacy” for Fourth Amendment rights. Never did Justice Kennedy successfully argue that such strip searches were not unreasonable or did not violate rights. Instead, he essentially argues that it is “alright” or “O.K.” to sacrifice these rights in favor of detention safety. While it might be difficult to accept violence in detention facilities, this is not an appropriate way to solve for it. The Supreme Court is making jails desperately unsafe for every inmate’s dignity and personal rights when it opens a door to violation of the Constitution.
Maggie Henry is a sophomore in the College of Arts and Sciences. She may be reached at firstname.lastname@example.org. Get Over Yourself appears alternate Wednesdays this semester.