A Philosopher's Blog

Strip Searches

Posted in Ethics, Law, Philosophy, Politics by Michael LaBossiere on April 13, 2012
The United States Supreme Court, the highest c...

They are, in fact, the judge of you. And me, too. (Photo credit: Wikipedia)

While the media and public were briefly focused on the Supreme Court’s consideration of the constitutionality of the Affordable Care Act, the court made a rather troubling ruling on a case involving Albert Florence.F

Florence, a finance director for a care dealership, was stopped on the way to a family event. He was then arrested when the trooper determined that there was a warrant for his arrest. While the warrant was in error (he had paid the fine in question) and he had a document to that effect, he was still jailed. While in jail he was strip searched. Six days later he was transferred and strip searched once again. Florence took issue with this treatment and his case made it to the supreme court.

By a predictable 5-4 vote, the Court ruled that anyone who is arrested (even for minor offenses, such as traffic violations) can be stripped searched. The ruling allows this even when there is no reasonable suspicion the person is concealing anything that would require a strip search to locate.

In the majority opinion Justice Kennedy noted that it would be “unworkable” to require jail officials to strip search only in cases in which they had reasonable grounds to suspect that a strip search would be needed. As might be imagined, this seems like an absurd thing to say. After all, it seems to be saying that it would not work to limit strip searches to cases in which a strip search would be reasonably justified. I certainly hope that this same logic is not extended to arrests. After all, the police are currently limited to arresting people when they have reasonable cause to suspect that a person needs to be arrested. I do hope that this is not also “unworkable.”

Kennedy did attempt to back up his point with an example, specifically that of the infamous Timothy McVeigh.  McVeigh had been arrested for driving without a license plate which caused Kennedy to note that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.”

One rather obvious response to this is that his example is irrelevant to the matter of strip searching. After all, nothing about the McVeigh case involved finding something dangerous or important by strip searching him. Now, if McVeigh had been arrested on a traffic stop and the police had found a bomb taped to his genitals and had thus prevented the horrific bombing, then Kennedy’s example would have had at least some relevance. It would, of course, still be just one example and thus an incredibly weak argument by example.

It might be countered that Kennedy did not mean for this to be an example directly showing the importance of strip searching people but rather as evidence that very bad people can be arrested for minor offenses. Presumably his reasoning is that such people would be more likely to hide things in places that only a strip search would reveal. Of course, this logic would also seem to apply to having the police check anyone, such as folks who eat fast food. After all, “people who eat at McDonald’s can turn out to be the most devious and dangerous criminals.”

It might be replied that people who are arrested for minor offenses have been arrested and hence are legitimately subject to searches in ways that people who are just out and about are not subject to arrest. This can, of course, be countered by the reply that it seems to be unwarranted to treat all prisoners the same, regardless of the offense and other factors. After all, if the police can distinguish between who should and should not be arrested, they should be able to distinguish between who needs to be strip searched and who does not.

This can be countered by arguing that the strip searching is done for the safety of the prisoners and the guards. After all, if everyone is strip searched, then the chances of dangerous items getting into prisons is somewhat lower. However, there is the fact that the overwhelming majority of people who are arrested for minor offenses are not concealing anything and to strip search people on the minute chance that they have something would be overreacting. To use an analogy, putting all prisoners in straight jackets and masks would provide greater protection, but that seems needlessly excessive for the vast majority of prisoners.  There is also the rather important fact that people are not supposed to be subject to cruel and unusual punishment.

While searching prisoners is a legitimate practice, strip searching certainly seems to go beyond what is needed in the case of minor offenses. After all, even Alito notes that strip searches are humiliating. As such, to subject a minor offender to such unnecessary humiliation  would be to punish them in cruel and unusual ways-even before they are found guilty.

Naturally, the ruling does not require that everyone who is arrested be strip searched-it just allows it to occur.  Alito even noted that for most people arrested for minor offenses, “admission to the general jail population, with the concomitant humiliation of a strip-search, may not be reasonable.” As such, jails could elect to house those arrested for minor offenses apart from the general jail population and not strip search them. However, the fact that this could be done does not mean it will be done and there is the rather obvious concern that this ruling will be exploited to allow the humiliation of people who are arrested on minor offenses. This would add nothing to public safety and would merely serve to impose on liberty, privacy and dignity.

Given that the court accepted that the police have a right to strip search even without probable cause, it would seem sensible to think that they will rule in favor of the Affordable Care Act. After all, if the state has the right to strip you naked and check out your junk when you are arrested for anything at all, then surely the state has the power to require you to buy health care insurance. In fact, given that an increased number of Americans will be exposed to the chilliness and psychological stress of being strip searched, they will need health insurance more than ever.

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31 Responses

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  1. magus71 said, on April 13, 2012 at 5:52 am

    The only time I requested a prisoner be strip searched, it resulted in the biggest heroin seizure in eastern Maine. A female had a large chunk of H in her panties.

  2. ajmacdonaldjr said, on April 13, 2012 at 9:23 am

    On admission to a jail a strip down, if not a strip search per se, is standard procedure. This is when you get a shower, a uniform, and flip-flops. I wouldn’t expect it to be otherwise. I have the feeling the judges on this case have never been admitted to a jail.

    • Michael LaBossiere said, on April 13, 2012 at 9:39 am

      No, I don’t think they have been arrested. I do see the need for a strip down when being sent to prison, but strip searching people who are merely arrested on minor charges seems to be a needless violation.

      • T. J. Babson said, on April 13, 2012 at 8:24 pm

        I think the ruling applies only to those who will enter the general prison population.

        • FRE said, on April 13, 2012 at 10:26 pm

          I hope you’re right, but that is not my impression.

          • T. J. Babson said, on April 13, 2012 at 10:50 pm

            Fre, read this carefully and see if you don’t agree:

            http://www.nytimes.com/2012/04/03/us/justices-approve-strip-searches-for-any-offense.html

            • FRE said, on April 14, 2012 at 4:44 pm

              Here is what the article states: “Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

              But it doesn’t define “general population.” Also, it doesn’t seem to state specifically how detainees who are not admitted to the general population can be treated. Nor does it state who should be consigned to the general population. A detainee could be admitted to the general population only to provide an excuse to probe his anus or, in the case of women, her vagina also. Many people find that sort of thing highly traumatic and feel as though they have been raped.

              It seems to be open to considerable interpretation.

              Because some jurisdictions seem to arrest people for trivial reasons or even for no reason at all, any one of us, regardless of how law abiding we are, could be arrested and subjected to an anus probe. I find that unacceptable.

            • magus71 said, on April 14, 2012 at 6:22 pm

              General population means that they actually get put in with other prisoners who have upcoming hearings or have been convicted and are serving their time. A person can be arrested, be brought to jail, and bail out before they enter the general population. Or they can get brought before a judge immediately if the timing’s right.

              The same people complaining about this are likely the same people who would charge the jails with negligence should an inmate get stabbed by a screw driver secreted on the body of a recently arrested prisoner.

            • Michael LaBossiere said, on April 16, 2012 at 3:26 pm

              Depends on how the situation. If someone was picked up for a traffic violate and managed to get a screw driver stored in his colon and then made it through everything without showing any signs of its presence to draw attention to himself, then I would not consider the police to be negligent. After all, who would suspect someone would stick a screwdriver up their rumpus while they were being pulled over? Or do hard core criminals always store shanks in their flanks?

            • magus71 said, on April 16, 2012 at 7:55 pm

              If you were running the prison, under what circumstances would you do strip searches, Mike?

            • Michael LaBossiere said, on April 17, 2012 at 4:27 pm

              If people were being locked in for a prison term after being convicted, then they would get the full search. However, I’d not be inclined to strip search people arrested for minor offenses. Now, if it is the case that a significant number of people picked up for minor offenses are stashing contraband in places that require a strip search, then this policy might be reasonable. Anyone have the statistics on that?

        • Michael LaBossiere said, on April 16, 2012 at 3:18 pm

          The comments in the opinion indicate that applies to all arrests, although the police are not required to strip search people arrested for minor crimes, like traffic violations.

      • ajmacdonaldjr said, on April 17, 2012 at 11:34 pm

        It depends upon whether or not one is processed-in at the jail or just kept in a holding cell until release. In jail even the visitors get strip searched. Being arrested and processed in and out of the police station it’s certainly unnecessary.

  3. T. J. Babson said, on April 13, 2012 at 11:45 am

    Here is the amicus brief filed on behalf of the Obama administration:

    http://www.justice.gov/osg/briefs/2011/3mer/1ami/2010-0945.mer.ami.pdf

    The SCOTUS followed the administration’s reasoning. So why did Mike find the vote “predictable,” when a Democratic administration favored the outcome?

    • Michael LaBossiere said, on April 16, 2012 at 3:16 pm

      Why would that change the predictability of the outcome?

      • T. J. Babson said, on April 16, 2012 at 3:52 pm

        Which way would you predict Sotomayor and Kagan to vote? With or against the Obama administration?

  4. FRE said, on April 13, 2012 at 2:43 pm

    Obviously most people to not go around carrying drugs or dangerous instruments an their ani, so there is no reason to suppose that anyone arrested for a minor matter will have something secreted in his anus or elsewhere.

    Often the purpose of strip searching people is to humiliate and intimidate them and to make it clear to them that they are helpless and that the police have total control over them. In the case of people stopped for failure to signal a turn or some other minor infraction, it has absolutely nothing to do with security. The security issue is no more than an excuse except when there is reason to believe that people may be hiding contraband.

    Actually, such searches can be counterproductive. For the police to be as effective as possible, they need the full coöperation of the public. When they act in offensive and heavy-handed ways, they irritate the public and, as a result, the public is less likely to be coöperative.

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  7. magus71 said, on April 17, 2012 at 5:58 pm

    Anyone who’s been through basic military training would not feel in the least violated. Besides–cops won’t be strip searching people for traffic violations since people hardly ever to go to jail for those. For instance, you can’t go to jail in Maine for speeding unless you’re doing 30mph over the limit and even then you’d probably only get a summons for a criminal trial.

    Much ado about nothing.

    • FRE said, on April 18, 2012 at 1:35 am

      When those who are arrested are strip searched, their genitals and ani are often closely examined and sometimes actually probed. I am not aware that that happens in basic military training. There is a difference between taking a shower with a bunch of other nude men and actually being closely examined and probed while nude. Moreover, some people find such probing extremely traumatic and feel as though they have seriously violated. The fact that it may not bother some people is not justification for doing it.

      • magus71 said, on April 18, 2012 at 5:37 am

        “There is a difference between taking a shower with a bunch of other nude men and actually being closely examined and probed while nude.”

        Yes, and there is a difference between being in the military and being in jail–though not much.

      • magus71 said, on April 18, 2012 at 5:49 am

        And actually, FRE, when I went to MEPS ( Military Entrance Processing Station) before Basic, every one had to stand in line naked, bend over and spread our buttocks so that a doctor could look directly and closely at our ani. Then we had to go in a room,and drop our pants so that a doctor could look closely at our penises. I’m pretty sure that guy was gay (no joke).

        One could expect being an inmate to be slightly more uncomfortable that not being in jail. But we all just joked about it and sued no one.

        TJ may be able to confirm or deny this from his military experience.

        • T. J. Babson said, on April 18, 2012 at 6:55 am

          Confirm. I always figured that it was probably harder on them than me.

        • FRE said, on April 18, 2012 at 1:25 pm

          The military gets away with many things which would not be acceptable for civilians.

        • Michael LaBossiere said, on April 18, 2012 at 1:53 pm

          That is a physical being conducted by a doctor, which is rather different from a forced strip search.

          • FRE said, on April 18, 2012 at 2:06 pm

            True, and there may be a valid medical reason for it whereas after an arrest, the real purpose is often to humiliate, embarrass, and subdue the person who was arrested even he or she is entirely innocent of any wrong doing. It is often assumed that everyone who is arrested must have done something wrong.

            The police often do treat people disrespectfully, depending on circumstances. Years ago, a member of my Toastmaster’s Club in the La Jolla area of San Diego told us how she was treated when, to meet bureaucratic requirements of a government agency, she had to be finger printed. She had it done at a police station. Until the personnel there learned that she was not under arrest, they treated her very harshly and disrespectfully.

          • magus71 said, on April 19, 2012 at 5:50 am

            Yes, going to prison is a forced event.

            • magus71 said, on April 19, 2012 at 5:51 am

              And I didnt ask for the physical.

            • Michael LaBossiere said, on April 19, 2012 at 6:26 pm

              But a physical is conducted for a legitimate medical reason and is actually beneficial to you. While being prodded by a doc can be a bit humiliating, the intent is (in general) a good one: to make sure that you are in decent condition and won’t drop dead in basic. Likewise for sports physicals-I got those to make sure that running wouldn’t kill me.

    • Michael LaBossiere said, on April 18, 2012 at 1:50 pm

      I think Mr. Florence might disagree.


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