April 03, 2012
Strip searches and human dignity
Should folks who are committed to a robust conception of human dignity be troubled by yesterday's Supreme Court ruling in Florence? To the extent that strip searches are inherently degrading, should they require a reasonable suspicion of contraband, or is this a matter solely up to the judgment of law enforcement? As the Church teaches, "the political community pursues the common good when it seeks to create a human environment that offers citizens the possibility of truly exercising their human rights and of fulfilling completely their corresponding duties." (Compendium para. 389) It seems to me that a commitment to human dignity requires recognition of a right to be free of invasive and degrading searches, and we should be concerned that such a right can be overcome by any arrest, for any crime, under any circumstances. That said, I am not a criminal procedure expert, so I'll leave it to others to chime in on how this aligns with our jurisprudence in the area.
Bernard Harcourt comments on the ruling's underlying "police state logic":
Now, of course, Kennedy is right that . . . security risks exist. There are (extremely rare) cases of arrestees carrying contraband (drugs) on or in their bodies. It occurs in extremely few cases, but it does happen. One recent study of 75,000 new inmates over a five years period found 16 instances where a full body search revealed contraband. (As Breyer explains, “The record further showed that 13 of these 16 pieces of contraband would have been detected in a patdown or a search of shoes and outer-clothing. In the three instances in which contra¬band was found on the detainee’s body or in a body cavity, there was a drug or felony history that would have justified a strip search on individualized reasonable suspicion,” Breyer’s dissent at page 8. Truth is, we do not know if there are any such cases where there was no prior reasonable suspicion that the person was carrying contraband, but let’s put that aside).
I’m fully prepared to assume, with Kennedy, that there will be such cases. But the question is, do we then embrace a “police-state logic” and give the jailors the license to strip search everyone? Do we close off constitutionalism because of the very existence of a security risk, no matter how small? Or do we engage in some kind of political balancing of those security risks against other political values?
Notice that Kennedy’s police-state logic would allow for full cavity searches as well. Kennedy reports: “A person booked on a misdemeanor charge of disorderly conduct in Washington State managed to hide a lighter, tobacco, tattoo needles, and other prohibited items in his rectal cavity. San Francisco officials have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting.”
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What could be more demeaning that long terms in the penitentiary? One could say that the entire criminal law with its criminal sanctions is a violation of deeply-valued personal rights. Perhaps there are other comtpeting values that Justice Kennedy has in mind.
Posted by: Joel Clarke Gibbons | Apr 3, 2012 3:30:55 PM
I think that a prison sentence imposed after due process can be, if not dignity-conferring, at least consistent with dignity in that it bears witness to our own moral agency and mutual accountability. The conditions in which those sentences are served may be a different story, of course.
Posted by: rob vischer | Apr 3, 2012 6:02:52 PM
Note, BTW, that in the case that was before the Supreme Court, conviction wasn't an issue. The plaintiff had been arrested, and wrongly at that. The records did not show that he had paid a fine; not only had he paid it, he had run into trouble for the faulty record before, and carried a letter from the court to the effect that the fine was paid. And he showed it to the officer... who arrested him anyway.
If he could be strip-searched in such circumstance, then quite literally anyone can be.
Posted by: Ray Ingles | Apr 4, 2012 12:01:57 PM
Rob, I agree entirely with you, but that would have to imply that all manner of measures the legal authorities take to do their job have equal potential to encourage self respect.
There was recently a case presented on Dateline that really gets at the heart of punishment. A high school girl from Ireland was teased so fiercely at school in Connecticut that she took her own life. Her father, in Ireland, was interviewed, and he was devastated. The Connecticut authorities stepped to charged the kids reponsible for causing her death. While the trial was in progress the father stepped forward on the matter of sentencing.
The law was propsing long prison terms for the kids whose thoughtless cruelty had caused the daughter's death. He acknowledged that but instead focused on the lives of the defendants. He reasoned that it did not serve anyone for them to waste their lives too in prison. What was needed and the only outcome that helped anyone would be a public confession of guilt and contrition in court by those kids. After that, they were freed.
So we see now what that father saw on his own: that punishment should heal rather than harm all parties involved, which I think is your point. That fact remains however that the law has to deal with many very tough cases, and can't generally pay too much attention to whose feelings are hurt.
A sidelight: The chaplain of a large Texas prison spoke about executions, and pointed out that in nearly every case the guilty repented their crimes before they died. Aquinas thought that was a good reason for hangings. Don't you?
Posted by: Joel Clarke Gibbons | Apr 4, 2012 12:41:24 PM
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