Almost a year ago Justice Anthony Kennedy wrote “Prisoners retain the essence of human dignity inherent in all persons.” This week in Florence v. Board of Chosen Freeholders of County of Burlington, Kennedy abandoned the commitment to the inherent dignity of those held in custody by the state and ruled correctional authorities have virtual blanket authority to strip-search arrestees.
In yet another 5-4 decision, with the justices lined up predictably, a majority of the highest court in a country that advances freedom and liberty as core values issued an opinion that reads as though it were written for the prison wardens’ association. With ominous, stentorian tones, Kennedy warns “the difficulty of operating a detention center must not be underestimated by the courts.” We are told by Kennedy “jails are often crowded, unsanitary and dangerous places.”
We are educated on ingenious methods used by prisoners to hide contraband: “Something might be tucked or taped under an armpit, behind an ear, between the buttocks, in the instep of a foot.” We are warned “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.” Kennedy patiently explains to us “[d]etecting contraband concealed by new detainees … is a most serious responsibility.”
All of this may be true, but it is startling to read an opinion on a case this important that expresses greater empathy for the details of prison administration than concern for the constitutional implications of empowering the state to degrade millions of nonviolent arrestees with the use of strip searches. It is not just the prose is plodding and pious. What’s shocking is the staggeringly weak effort by the majority to address the implications of this stunning decision for the privacy rights of anyone held in custody.
While the court has long held that jail officials may search those arrestees who are suspected of hiding contraband or carrying weapons, the petitioners in Florence argued jail officials may not strip-search every arrestee. Instead, they argued, the constitutional prohibition against unreasonable searches and seizures requires officers to have a reasonable suspicion an arrestee may be armed or concealing items or substances.
In rejecting this argument, the court has now granted authority to jail officials to strip-search even those arrestees who appear to pose no threat. The motorist arrested for failing to use a seat belt, the individual arrested for failing to pay child support or for driving under the influence, the anti-war protester and the Occupy Wall Street activist can all be subjected to strip searches.
It is estimated 14 million people are arrested in the United States each year, many for traffic infractions or other nonviolent offenses. In fact, fewer than a million arrestees are accused of violent crimes. Millions of arrestees are never charged. Many more are never convicted. Thus, the implications of the court’s decision requiring deference to jail officials in the conduct of strip searches are broad and disturbing. Given the effect of stop-and-frisk, driving-while-black and other forms of racial profiling in law enforcement, the racial implications of the court’s decision are staggering.
The court’s opinion reads more like a brief for a prison warden than that of the Supreme Court of a democratic nation. Perhaps this is why Justice Kennedy took certain liberties in the majority opinion. Troublesome words had to be redefined. The term “strip search,” the majority tells us, is “imprecise.”
After all, although compelled to strip naked, some detainees are not “touched” in any way, although they may be compelled, as Albert Florence was in this case, to lift his genitals for inspection. Likewise we are told that “the term jail here is used here in a broad sense to include prisons and other detention facilities,” seemingly ignoring the obvious and substantial differences between the constitutional rights of those held in a jail that houses arrestees and a prison that houses convicted criminals.
Perhaps most shameful is the willingness of the court to sacrifice the character of Florence to the needs of correctional institutions. Kennedy’s recitation of the facts begins not with the questionable traffic stop and arrest of Florence on an outdated and incorrect warrant in 2005, but with Florence’s 1998 arrest for fleeing from a police officer and use of a “deadly weapon.” Kennedy fails to mention that the deadly weapon in question was the car Florence was driving during his encounter with police.
Florence was subjected to a fine for this infraction, and when he failed to make prompt payments, he was held in civil contempt. Florence paid the fine a week after the contempt order. And because he believed that he had been subjected to racially motivated traffic stops in the past, Florence kept a copy of an authenticated document proving that he’d paid the fine in the glove compartment of his car.
The case before the court arose from the 2005 arrest of Florence seven years later. When his BMW was pulled over by police in Burlington County, N.J., Florence wasn’t even driving. The car was driven by his pregnant wife. His 4-year-old son was in the car, and the family was returning from a gathering to celebrate the Florences’ purchase of a new home. Police asked who owned the car, and when Florence provided his identification, officers ran his name through a database, which incorrectly indicated that his contempt fine remained unpaid.
Florence, a black businessman and father of four, showed the police his proof of payment on the judgment, to no avail. He was arrested and taken to the county jail. There, and at another jail to which he was transferred, Florence was subjected to two strip searches — once in the company of other arrestees, even though he presented no known threat to officers or other prisoners.
Although he should have been taken before a magistrate within 24 hours, Florence remained in jail for six days before he saw a judge. He was released immediately once it was determined that he had been arrested in error. Florence described the strip searches as humiliating experiences that made him feel like an animal. It has never been made clear why officers pulled over Florence’s car.
On the day his case was to be argued in the Supreme Court, Florence expressed his excitement about the hearing and his faith in the judicial system. Justice Kennedy’s opinion shamefully repays Florence’s confidence in our judicial system with a cramped, narrow reading of the Fourth Amendment and with a cold rejection of the right of those who are innocent until proven guilty to be free from the government’s intrusion on their dignity and bodily integrity.
Sherrilyn A. Ifill is a professor of law at the University of Maryland and a regular contributor to The Root, an online magazine that explores the African-American experience.
