April 2, 2012 1 Comment
Unless that “big government” is police officers asking you to spread your butt and cough after being stopped for a traffic violation. Today’s 5-4 SC decision:
The Supreme Court on Monday ruled by a 5-to-4 vote that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.
Justice Anthony M. Kennedy, joined by the court’s conservative wing, wrote that courts are in no position to second-guess the judgments of correctional officials who must consider not only the possibility of smuggled weapons and drugs, but also public health and information about gang affiliations.
One on-line commenter replied perfectly, “ On the other hand, the Supreme Court can second-guess the democratically elected Congress, when it tries to solve the nation’s health care problems.” So it would seem. I enjoyed these tidbits from Breyer’s dissent:
Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to “the humiliation of a visual strip-search” after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell.
A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration. So were victims of sexual assaults and women who were menstruating.
Yowza! Though, nice rebuttal from Kennedy:
Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate. “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added.
The story of the Black man who was stopped driving his nice car and falsely arrested, held, and strip-searched that led to this case is plenty disturbing. Read the article if you are not familiar with it. Anyway, I find Breyer’s evidence-based argument the most compelling:
Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means [emphasis mine], particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.
For instance, in a study of 23,000 people admitted to a correctional facility in Orange County, N.Y., using that standard, there was at most one instance of contraband detected that would not otherwise have been found, Judge Breyer wrote.
I’ll admit not necessarily the easiest case, but I’ve got to err on the side of not strip-searching nuns arrested at anti-war demonstrations. Call me a softie.