A Supreme Court Decision on April 2 upheld, by a 5-4 vote, the right of prison officials to strip-search anyone entering a prison facility. This drastic reduction of fourth-amendment rights -- which protect Americans against unreasonable searches and seizures, and require that arresting officers show probable cause -- can now be applied to any citizen brought to a detention center or prison. A strip search, the Supreme Court has said, is permissible no matter how minor the offense. It is permissible even where the legal punishment for a specified infraction carries no time in prison.
In the case at hand, Florence v. County of Burlington, Albert W. Florence was forced to spend a week in jail, in prisons in two counties of New Jersey. He was forced to undress and submit to strip searches (including exposure of body cavities), after his arrest on a warrant for an unpaid fine. As the court reporter's summary puts it:
Petitioner claims that he also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, armpits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.
It turned out that all of these procedures were based on a mistake: Florence had already paid his fine. And as it happens, an unpaid fine is not a criminal offense in New Jersey. But the strip-search policy has by now also been applied to persons arrested for walking a dog without a leash, for driving a car with an expired license, and for taking part in a peaceful protest. Adam Liptak, in his story in the Times, also cited the case of a nun who was strip-searched after being arrested in a political demonstration.
What might easily not be known about this case, to persons who are not readers of Glenn Greenwald at Salon, is that the Obama administration sided with the authoritarians on the court in supporting the right of prison officials to command a strip search. A justice department lawyer, Nicole A. Saharsky, offered these words to clarify the view shared by President Obama and his attorney general, Eric Holder: "When you have a rule that treats everyone the same, you don't have folks that are singled out. You don't have any security gaps." The Obama case for abrogation of the fourth amendment in prison thus turns on a lofty non-discriminatory aim: the safety and democracy of prisons. A level playing field of humiliation.
But is it true to say that no "folks" are "singled out" by such a procedure? Albert Florence is a black man. In 2009, blacks made up 13.6 percent of the U.S. population, but they were 39.4 percent of the prison population. So let us say it straight. The Obama-Holder view favors the universal application of the strip-search to a situation where some folks, after all, have been singled out as an observable pattern of the usual practice of the system. Liptak, incidentally, in his otherwise solid treatment in the Times, neglected to mention that the administration weighed in before the ruling on the side of the conservative majority.
This decision makes a large example, and the most significant thus far, of the way an expansionist foreign policy based on coercion and violence has returned on us and come to haunt Americans. We have a right-wing practice of foreign policy that is reliably backed by the party of wars and prisons, and a left-wing theory of universal treatment that is backed by the party of speech codes and cultural sensitivity. Conquer them in order to improve them, says the first party. Be sure to treat everyone the same, replies the second -- for surely we are no better than the countries we occupy. The safety we secure by arms abroad we must likewise enforce on ourselves at home.
Foreign policy has come home in the form of pepper spray, Tasers, and strip searches. But there is a practice closer to the Florence case. A mass experiment in the reduction of political self-respect occurs and is reinforced every day, in every airport in the country, in the body scans and pat-downs performed by the TSA. Some of the latter work is necessary, of course, while a strip search of a man with a parking ticket is not necessary. Still, the common experience and the exceptional one are clearly related. The government wore people down and achieved acceptance of the first practice, and that prepared the way for official endorsement of the second. Once again, a political and moral aberration has been redescribed and turned into an approved policy.
The majority opinion by Justice Kennedy reads as if it were mainly driven by custodial anxiety to assure conditions of maximum safety in prisons. "Contraband has value in a jail's culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder": that sentence from the court reporter's headnote really looks like the fixed star of the Kennedy opinion. "The seriousness of an offense," the summary goes on to say, "is a poor predictor of who has contraband." Was this, then, a case about the improvement of prison conditions? We had thought it a case about the arrest of a man and the rights of men and women.
Kennedy's opinion remarks that in 1998, "seven years before the incidents at issue, petitioner Albert Florence was arrested after fleeing from police officers in Essex County, New Jersey. He was charged with obstruction of justice and use of a deadly weapon." Yet this opinion in no way turns on what could be found out concerning the previous offenses of the arrested person. The prison, on the view here upheld by the majority, would have been as warranted in executing the strip-search if the arrested man's last recorded crime was the theft of a pack of Magic Cards at the age of eleven. It would have been no less warranted if he was a recent recipient of the Nobel Peace Prize.
Justice Kennedy proceeded to say why the majority was right to uphold the reversal, by the Third Circuit Court of Appeals, of the district court ruling in favor of Albert Florence. "The [Third Circuit] Court explained that there is no mechanical way to determine whether intrusions on an inmate's privacy are reasonable. The need for a particular search must be balanced against the resulting invasion of personal rights."
What is unique about constitutional rights, we had always supposed, is that they are not up for bargaining, not to be placed in the balance against convenience, thrift, symmetry, the desirability of a scapegoat or a jailer's hunch. "The admission of inmates," according to the Kennedy opinion, "creates numerous risks for facility staff, for the existing detainee population, and for a new detainee himself or herself. " Doubtless so. And the weakening of a constitutional right creates a new risk for all Americans.
Let us not overlook the echo here of that concern for "safety" which was articulated often by the Bush-Cheney administration. Barack Obama signaled his solidarity with the Bush-Cheney view, against the demand of constitutional rights, in his curious public comment on the Bradley Manning case. Recall that before being charged with a crime, Manning, whom the government suspects of having illegally supplied documents to WikiLeaks, spent almost a year in solitary confinement at Quantico.
Scant physical exercise and frequent interruptions of sleep were his daily and nightly regimen, along with other reductions below the minimal level of decent treatment of a prisoner. This came to be well known in early 2011. Yet, in a press conference of May 11, 2011, when asked about PFC Bradley Manning, President Obama said that he had inquired about the case with authorities at the Pentagon, and "they assure me" that "the procedures that have been taken in terms of his confinement... are meeting our basic standards. I can't go into details about some of their concerns, but some of this has to do with Private Manning's safety as well."
This comment may be counted among the precursors of the Obama justice department's approval of the strip search for everyone. "Some of this," said the president, was for "Private Manning's safety as well." In just the same way, says the Kennedy opinion, the cavity search of Albert Florence was performed for the sake of his own safety in prison.
Much of the majority opinion is taken up with a dreary and credulous enumeration of the objects that can be concealed in the human body, and the diseases that may be carried by prisoners. To repeat: "The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption. People detained for minor offenses can turn out to be the most devious and dangerous criminals." Why not be consistent and take the next logical step? People who have committed no earlier offense can turn out to be the most dangerous criminals of all. More dangerous indeed than the minor offenders, since they offer to detection no foothold on any previous bad fortune in character.
"Hours after the Oklahoma City bombing," writes Justice Kennedy, "Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate." And again: "Officers at the Atlantic County Correctional Facility, for example, discovered that a man arrested for driving under the influence had '2 dime bags of weed, 1 pack of rolling papers, 20 matches, and 5 sleeping pills' taped under his scrotum." These are true discoveries and unhappy for human trust. There are lots of crimes we do not catch, and there are criminals who cannot be prosecuted to the full extent of their indictable offenses. The opinion asks us above all to consider, as we look at the dime bags and the sleeping pills, What can we do about this tragedy?
Here is one possibility. We can decide that the bags and pills going unnoticed on occasion are a smaller evil than systematically depriving people of their dignity.
Justice Breyer wrote in his dissent: "such a search of an individual arrested for a minor offense that does not involve drugs or violence -- say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor -- is an 'unreasonable search' forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband." You do not have to be an elaborately educated or refined reader of the Constitution to judge that such indeed is the meaning of the fourth amendment.
The words are great and they deserve to be remembered. Here is what the fourth amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
How steep is the descent from these words to the new rule by which a majority of the Supreme Court, with a president and an attorney general at their side, have now elected to challenge the constitutional presumption against arbitrary searches and seizures? We will know for sure when we see the next in the series of anti-Constitutional experiments begun by Bush and Cheney and continued by Barack Obama. In the meantime, the following axioms may serve as a guide to the change of morale.
- There are good people and bad people.
- A designated function of the police and prison officials is to determine who is good and who is bad.
- If you are arrested, it may safely be assumed that you are one of the bad.
- If, at the time of arrest or afterward, you protest your innocence loudly, or speak with indocility to an officer of the law, you have committed an offense graver than many crimes on the books.
- Breaches of politeness toward authorities form a legitimate part of a record stored up for future use regarding the conduct of all Americans.
- Authorities must keep such a record because Americans, through our tacit consent to laws passed or changed since 2001, have affirmed that we think nothing more important than our safety.
- The duty to keep America safe, and to "protect" all Americans, outweighs the duty to see that existing laws under the Constitution are faithfully executed. Apparent violation of an existing law by a designated authority, so long as it can be seen as consistent with the higher duty of the maintenance of safety, is itself a sufficient reason for a change of law to accommodate the violation.
- When not already effected by Congress, such changes will be executed by the Supreme Court.
- There is a proper trade-off between unalienable rights and collective safety, just as there is a trade-off between the moral commandment not to commit injustice and the human desire to live as long and comfortable a life as we possibly can.
- Whenever safety and comfort require that injustice be done to individuals, injustice is tolerable and should be supported by other Americans.
- For an accused person, there is a correct and an incorrect posture.
- The incorrect posture is to be indignant at things done to you, such as the imposition of unnecessary force or humiliation. The correct posture is to be grateful to authority for the things that have not yet been done.