By John W. Whitehead ——Bio and Archives--April 4, 2012
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...a visual inspection of the inmate’s naked body. This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus. For females, the procedures are similar except females must, in addition, squat to expose the vagina.One can certainly understand the need for such precautions when dealing with dangerous criminals. But is there really any reason to subject a mother arrested for driving with her children unbelted to such an invasive strip search? What about the nun arrested for trespassing during an antiwar demonstration? Or the activists arrested in a free speech protest or those who engage in acts of nonviolent civil disobedience? In keeping with this ruling, any and all of these individuals could now find themselves subjected to exposing their naked bodies in a variety of poses designed to “show all” to the prying eyes of government officials. Frankly, I doubt that Anthony M. Kennedy, John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.—the five justices who seemed to have no trouble inflicting such humiliations on the populace—would be inclined to condone such dehumanizing treatment were there even the slightest possibility that they might be subjected to it. It is a testament to the elitist mindset that prevails in our judicial system today that these five men can rest easy knowing that they will never be subjected to any such violation of their persons. It is only average Americans—the so-called “great unwashed masses”—who will have to worry about being subjected to this state-sanctioned brand of humiliation and bodily violation. (It may seem a paltry consolation for those forced to endure these searches, but at least Justice Breyer, joined in his dissent by his female counterparts on the bench—Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan—recognized that these visually invasive strip searches constitute a serious invasion of privacy.) This ruling is far from the first occurrence of the Supreme Court’s elitism, detachment, cluelessness about how average Americans live, and lack of concern about the degree of humiliation to which we are subjected by government officials. In their decision in Kentucky v. King, for instance—a ruling that completely undermines the Fourth Amendment requirement of a warrant before entering someone’s home—the Court held that police officers can forcibly enter a person’s home, without a warrant and for nonviolent offenses, based only on the mere suspicion that the occupant may possess an illegal substance (most likely marijuana). Now with its decision in Florence v. County of Burlington, the Court has driven another stake through the heart of the Fourth Amendment, the constitutional guarantee that people should be free from unreasonable search and seizure by government agents. This ruling also further reinforces the idea that we are all to be treated as suspects. A forcible strip search upon arrest inverts the presumption of innocence into the presumption of guilt. Before even being allowed to call a lawyer, the arrestee is faced with the dehumanizing treatment of a strip search, a security measure traditionally reserved for those suspected of a serious crime or already proven guilty. Doubtless this ruling will pave the way for even greater abuses to be meted out on the populace by the total security state. Now that these blanket strip searches no longer have to be restricted to hardened criminals and suspected murderers, it won’t be long before folks arrested for innocuous offenses such as jaywalking or kids who start a food fight at school find themselves forced to strip naked and spread eagle. What’s to stop the police from strip-searching children accused of minor offenses such as schoolyard scuffles? It’s not so far fetched as one might think. Baltimore police have come under fire for arresting and handcuffing three 9-year-old girls and an 8-year-old boy, a scenario which, under this ruling, could have resulted in a strip search of young children. The Supreme Court’s ruling in Florence is also an affront to international law and universal human rights, which the United States purports to uphold. According to Article 5 of the UN Declaration of Human Rights, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Yet there is nothing more degrading or inhuman than forcibly strip-searching a person arrested for a minor crime. Just ask Albert Florence, who described the experience of being strip searched as “Humiliating. It made me feel less than a man.” Despite giving the green light to these blanket strip searches in the name of safety and security, the Supreme Court has, in the past, recognized that strip searches are traumatic. In 2009, the Court ruled that school officials’ strip search of a 13-year-old girl was an unconstitutional violation of her rights. Unfortunately, despite the fact that police and jail officials are not trained in matters of constitutional law, let alone matters involving human dignity and bodily integrity, the justices deferred to the judgment of police and jail officials in Florence. Yet, having essentially gifted jailers with carte blanche authority to strip search individuals at will, the Court may find it has opened a proverbial can of worms. Although most Americans are very compliant, many will not readily submit to these strip searches—especially not if they are innocent of any serious criminal wrongdoing. It’s unlikely that a woman arrested for not seat belting her child or paying a traffic ticket on time will placidly disrobe and spread her body parts. And what will happen when she refuses? Will she be forcibly stripped of her clothes? Will she be subjected to an enhanced patdown and virtual strip search, akin to what the TSA has been meting out to passengers? Will she find herself facing even more onerous charges carrying even great penalties, such as those levied against individuals found to have resisted arrest? In light of the fact that approximately 13 million people are introduced to American jails in any given year, we may soon see millions of people needlessly strip-searched over minor offenses such as unpaid traffic fines. What remains to be seen is whether this license to strip-search will become the next weapon of compliance to be used against those who question the power of the state. For the moment, however, thanks to the Supreme Court, visually invasive strip searches will at least be the hallmark of jailhouses across the United States.
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Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at amazon.com. The Rutherford Institute is available at rutherford.org