Arrested? Your Naked Glory is Fair Game

Comic courtesy http://www.nwclu.org. 

Today's Supreme Court decision in Florence v. Board of Chosen Freeholders of County of Burlington authorizes correctional personnel to strip-search each and every detainee, regardless of any actual suspicion that he or she might have contraband on his or her person. It was, unsurprisingly, a 5-4 decision, with Justice Kennedy as the author of the Opinion of the Court and Justices Breyer, Ginsburg, Kagan and Sotomayor in the dissent. Classifying such searches as "special needs" searches, Justice Kennedy relies on prior decisions that allow constitutional violations of inmates when these are "reasonably related to legitimate penological reasons." The risks for safety, staff, and inmates who might need medical treatment, requires allowing such strip searches; also, at the booking stage it might be difficult to tell what the inmate had been arrested for.

This decision comes as no dramatic surprise to anyone who's read Samson v. California (2006), which allows suspicionless searches of parolees. In keeping with the general crime control rationales, to treat the presumably guilty harshly and set innocent people free, people who are already in the claws of the correctional apparatus may be searched and seized with no suspicion.

As an aside, the facts in the cases are a great example of judicial storytelling. To justify the penological interests behind such searches, Justice Kennedy paints a picture of jail as a dangerous, gang-infested place, where according inmates their privacy is a luxury we can scarcely afford. Justice Breyer, in his turn, paints an invasive and unpleasant picture of the strip search. You can easily predict which way an opinion is going to go by carefully reading the words Justices use to frame the facts.