This article reports on how courts have begun to chip away at one of the last remaining, narrow bulwarks of Fourth Amendment protection for prisoners– constraints on the anything-prison-authorities-say-goes attitude toward strip searches in the case of minor offenders.
While the Supreme Court likes to pay some lip service to the idea of bodily privacy and other Fourth Amendment protections for prisoners, it has established such deferential standards for judicial review of prisoners’ constitutional claims that those protections have long since become effectively meaningless for adults. In the process, the difference between strip searches and cavity searches has been obscured and transformed over the years, so that though visual cavity searches were once understood as cavity searches, they are now conducted under the moniker of strip searches– which appears to make judges much more comfortable with authorizing them. As a result, notwithstanding the high rates of sexual assault in prisons and prisoners who are survivors of sexual assault, the routine visual inspection of genitalia without cause has become a part of acceptable prison strip search policies (following, as the article describes, the Court’s 1979 decision in Bell v. Wolfish). Prisoners frequently report that this practice constituted one of or the most humiliating, dehumanizing aspects of their experience of incarceration; while such correlations are difficult to measure, it is likely that it contributes to the rising rates of mental illness, substance abuse as self-medication, and suicide in prisons. Indeed, this government publication from Australia characterizes the practice as sexual assault by the state. While the Supreme Court has yet to rule explicitly on this practice, it has tacitly approved its upholding in the lower courts.
As the article recounts, up until recently, minor offenders (along with juveniles) remained a somewhat protected category. As I learned about the history of this caselaw, I was outraged by the shift in U.S. policy regarding prison strip searches over the last three decades; I wondered if it was not a case in which the lack of awareness of what was happening to one of society’s most vulnerable populations had, by sheltering the courts from public outrage, led to an obscene grant of power to carceral institutions and a removal of nearly all constraints upon them. The fact that blanket strip searches of minor offenders are now before the court attests to both the extreme place where the law has arrived, and the possibility that the routine subjection of people to visual cavity searches for parking violations or riding a bike without a bell might finally draw some attention to prisoners’ daily experience and raise the kind of protest that might help turn back this tide.
