Tuesday, April 3, 2012
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.”