Supreme Court Strip Search Ruling Creates a Culture of Fear

The Supreme Court ruled on Monday that prison guards may perform strip searches on people arrested for any offense, however minor, prioritizing jail security over individual privacy. The ruling was made against Albert Florence, who was strip-searched twice after being mistakenly arrested in 2005 for not paying a fine. When he was ultimately found not guilty and released, he claimed that the humiliating treatment “made [him] feel not better than an animal.”

An invasive strip-search subjects arrestees to a visual inspection of their naked body, including the exposure of body cavities. In addition to violating an individual’s right to privacy, this creates a culture of fear and insecurity in a country that already has the world’s highest incarceration rate in absolute and per capita terms. The number of Americans in prison has tripled since 1987, but the number of criminal offenses has not fallen as a result.

The current system of crime prevention is evidently getting something wrong. But instead of attempting to address this crisis, the Supreme Court has decided that persons who were either wrongly convicted or convicted for a minor offense — and should probably not have been imprisoned at all — must fear an additional assault on their dignity.

Kennedy has various justifications for the ruling. He argues that strip searches are necessary to detect injury or disease, identify tattoos or markings related to gang membership, and detect contraband, including drugs, guns, knives, and pens. However, in his dissenting opinion, Justice Breyer points out that “there is no connection between the genital lift and the “squat and cough” that Florence was allegedly subjected to and health and gang concerns.” The justification (or lack thereof) thus appears to be that of detecting smuggled weapons and drugs.

This is not surprising — at the federal level, prisoners incarcerated on a drug charge comprise half of the prison population, while the number of drug offenders in state prisons has increased thirteen-fold since 1980. Strip-searches are one more performance to target drug crime. But when performed on arrestees whom officials have no reason to suspect are in the possession of drugs, they will only generate more fear of drug crime, both in prison and society at large.

Kennedy also argues that it would be “a difficult if not impossible task” to identify “inmates who have propensities for violence, escape or drug smuggling.” To the contrary, courts are obligated to ensure that correctional officers are not abusing their power and apply a “reasonable suspicion standard” before strip-searching the general jail population.

Breyer’s dissenting opinion cites overwhelming evidence that the detection of contraband through a strip-search is almost always in instances of a drug or felony history. A study of 23,000 persons in the Orange County correctional facility between 1999 and 2003 revealed that strip-searches only detected contraband in five instances, and four of the five instances were those of “reasonable suspicion.” One in 23,000. But the Supreme Court has chosen to prioritize the security of prisons over the degrading and humiliating treatment of a potentially innocent person.

The ruling does nothing more than fortify a culture of fear and create the illusion that drug and weapons trafficking is far more rampant than it actually is. Even if we ignore the structural flaws in the U.S. incarceration system, the bottom line remains that giving prison officials the right to strip-search every single person arrested for a minor offense is not “a reasonable balance between inmate privacy and the need for institutions” that uphold security. We don’t need institutions that generate fear and dehumanize citizens guilty of a traffic violation, failure to pay a fine or any other small, civil offense. Instead we need to address the broken system that admits 13 million people to jail each year in the guise of upholding order and justice.

This article relies heavily on a close reading of the Supreme Court Ruling in Florence v. County of Burlington, No. 10-945, including the opinions of Justice Kennedy and Justice Breyer.