{"id":3110,"date":"2011-09-14T10:17:50","date_gmt":"2011-09-14T14:17:50","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3110"},"modified":"2016-11-16T20:39:20","modified_gmt":"2016-11-17T01:39:20","slug":"supreme-court-to-rule-on-constitutionality-of-jails-strip-search-policies","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/supreme-court-to-rule-on-constitutionality-of-jails-strip-search-policies\/","title":{"rendered":"Supreme Court to Rule on Constitutionality of Jails' Strip-Search Policies"},"content":{"rendered":"

While driving with his family in March 2005, Albert Florence was stopped by a New Jersey state trooper, who, after checking the vehicle\u2019s registration, arrested Florence on an Essex County, New Jersey bench warrant for failing to pay a court fine.\u00a0 Florence had, in fact, paid the fine years before and the matter was eventually resolved \u2013 but not before Florence had been repeatedly strip-searched by prison officials during a six-day stay in county correctional facilities. \u00a0As a recent Washington Post<\/span>\u00a0article<\/a> points out, the invasiveness of the facility’s intake procedures is jarring, especially in light of the inconsequentiality of Florence\u2019s purported offense.\u00a0 But are the procedures constitutional?<\/p>\n

The Supreme Court will soon decide.\u00a0 In a brief<\/a> filed with the Court, Florence contends that jailers\u2019 policy of strip-searching all inmates entering correctional facilities \u2013 including those accused of minor offenses \u2013 violates the Fourth Amendment\u2019s protection against unreasonable searches and seizures.\u00a0 To effect a search as invasive as the one Florence underwent, officials must have a \u201creasonable suspicion\u201d that an inmate is attempting to smuggle drugs or weapons into the facility.<\/p>\n

Counsel for the prisons counter<\/a>, however, asserting that suspicionless strip searches are necessary mechanisms to ensure the safety and security of state and federal prisons.\u00a0 Any interest inmates have in individual privacy is dwarfed by the state\u2019s interest in detecting the smuggling of contraband into prison.\u00a0 Indeed, altering existing policy might spur inmates to coerce others into getting arrested on minor charges in order to smuggle contraband undetected.<\/p>\n

As a tactical matter, Florence seeks to minimize the state\u2019s interest in suspicionless strip searches, deriding the practice\u2019s efficacy in detecting contraband.\u00a0 Florence points to a variety of statistics suggesting that suspicionless strip searches prove a poor screening mechanism for smuggled materials.\u00a0 For instance, eighteen states prohibit suspicionless strip searches with no indication that prisons therein suffer from an increased incidence of smuggling.\u00a0 Florence also points to Dodge v. County of Orange<\/span>, 282 F. Supp. 2d 41 (S.D.N.Y. 2003), in which a court in the Southern District of New York examined a prison policy whereby all inmates were strip-searched before entering a particular facility.\u00a0 The Court looked at every arrest record to determine whether a \u201creasonable suspicion\u201d regime \u2013 in which strip searches were limited to prisoners whose crimes and\/or backgrounds evinced a propensity to smuggle \u2013 would increase the amount of contraband introduced into prison. \u00a0The Court concluded that of the 23,000 searches conducted over a four-year period, there was only one instance in which a person smuggling drugs might have evaded detection under a reasonable suspicion regime.<\/p>\n

Florence\u2019s reliance on statistics to cast doubt of the state\u2019s interest in security may prove to be a tactical error.\u00a0 First, recitations of statistics from other jurisdictions or other prisons do not necessarily speak to the realities of the prisons in which Florence was housed.\u00a0 As one of the respondents points outs, the jail where Florence was strip-searched is one of the most dangerous in New Jersey, where contraband is \u201cfound on a daily basis.\u201d[1]<\/a>\u00a0 Though the facility in Dodge<\/span> may not have benefitted from a suspicionless strip search regime, the present prison might.<\/p>\n

Moreover, the Court has defended highly invasive searches absent probable cause in prior cases, even where such practices appear to possess limited utility.\u00a0 In Bell v. Wolfish<\/a><\/span>, 441 U.S. 520 (1979), for instance, the Court upheld a prison policy subjecting prisoners to body cavity searches upon receiving outside visitors, despite the fact that such searches had discovered contraband in only one instance.\u00a0 However, Bell<\/span> does not necessarily ring the death knell for Florence\u2019s appeal.\u00a0 The fact that the searches in Bell<\/span> discovered little contraband is to be expected: if the inmates knew that they would be searched after visits with guests, there would be little incentive to have those guests smuggle in illicit items.\u00a0 In contrast, inmates charged with minor offenses are unlikely to possess contraband because: (a) they possess no real criminal disposition and thus no desire to smuggle illicit items into prison or (b) their arrest was unpredictable and thus they lacked the time necessary to hide contraband materials on their person.\u00a0 The Court\u2019s dismissal of statistical data in Bell<\/span> does not necessarily suggest they will reject it again in Florence<\/span>.<\/p>\n

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[1]<\/a> To be fair, the prison defines contraband as drugs, weapons, and \u201cinnocuous items\u201d such as chewing gum and cigarettes that may be bartered by the prison population.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

While driving with his family in March 2005, Albert Florence was arrested on a bench warrant for failing to pay a court fine. Florence had, in fact, paid the fine years before and the matter was eventually resolved \u2013 but not before Florence had been repeatedly strip-searched by prison officials during a six-day stay in county correctional facilities. The invasiveness of the facility’s intake procedures is jarring, especially in light of the inconsequentiality of Florence\u2019s purported offense. But are the procedures constitutional?<\/p>\n","protected":false},"author":35,"featured_media":3131,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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