Blanket policies for strip searching pretrial detainees: An interdisciplinary argument for reasonableness

Fordham Law Review

Volumn 79, Issue 6, 2011, Pages 2721-2760

  Ha, Daphne ^a,b  

^a FORDHAM UNIVERSITY   (United States)

^b Program on US Russia Relations at Columbia s Harriman Institute   (United States)

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[No Author keywords available]

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EID: 79959907454     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (480)

1. Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 966 (9th Cir. 2010).
2. Id. at 989 (Thomas, J., dissenting).
3. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. 595 F.3d 964 (9th Cir. 2010).
11. See id. at 966.
12. See, e.g., Giles v. Ackerman, 746 F.2d 614, 615 (9th Cir. 1984) (holding that jailors violated the defendant's Fourth Amendment rights by strip searching her after she was arrested for a minor offense and there was no reasonable suspicion that she had contraband or a communicable disease)
13. overruled by Bull, 595 F.3d 964;
14. infra notes 273-74.
15. 541 F.3d 1298, 1306-07 (11th Cir. 2008) (en banc) (recognizing that other circuit courts have required reasonable suspicion in justifying strip searches, but declining to do so). In Powell, the Eleventh Circuit also overruled one of its prior cases.
16. Id. at 1307;
17. see Wilson v. Jones, 251 F.3d 1340, 1341 (11th Cir. 2001) (holding that a blanket policy requiring strip searches of all arrestees admitted to the county jail was unconstitutional)
18. overruled by Powell, 541 F.3d 1298;
19. see also Bull, 595 F.3d at 980-81 (agreeing with the Eleventh Circuit's reasoning that strip search policies do not violate the rights of arrestees who are mixed with the general jail population);
20. infra Part II. B.l.
21. Florence v. Bd. of Chosen Freeholders of Burlington, 621 F.3d 296, 308 (3d Cir. 2010).
22. Bull, 595 F.3d at 991 (Thomas, J., dissenting).
23. Security and civil rights issues are relevant not only in a penological context, but in emerging debates about national security, technology, and virtual strip searches. See Petition for Review, Elec. Privacy Info. Ctr. v. Napolitano, No. 10-1157 (D. C. Cir. July 2, 2010) (lawsuit filed by a nonprofit organization against the Transportation Security Administration's (TSA) full-body scanner program, alleging that the program violates travelers' Fourth Amendment rights);
24. see also Susan Stellin, Are Scanners Worth the Risk?, N. Y. TIMES, Sept. 12, 2010, (Travel) at 3 (listing the many concerns about body scanners, including their radiation levels, lack of thorough testing, and ability to save photos of travelers' bodies);
25. Gary Stoller, Debate Rages Over Full-Boay Scans, USA TODAY, July 13, 2010, at 4B (discussing the growing opposition to TSA scanners that "strip-search" passengers without probable cause to do so). Furthermore, the advent of new technologies such as full body scanners allows correctional institutions and airports to conduct similar searches and cooperate with each other in doing so.
26. See Christina M. Wright, Correctional Facility Uses Donated Airport Scanners to Detect Drugs, THE HERALD BULL. ONLINE (June 24, 2010), http://heraldbulletin. com/local/xl617562558/Correctional-facility-uses- donatedairport-scanners-to-detect-drugs (reporting that, after getting new equipment, the TSA donated seven machines that analyze microscopic particles from clothing and skin to the Indiana Department of Corrections).
27. Letter from the Am. Civil Liberties Union to Ari Zavaras, Exec. Dir., Colo. Dep't of Corr. 2 (Aug. 23, 2010), available at http://www.aclu.org/files/ assets/Zavaras-ACLU-8-23-10.pdf [hereinafter ACLU Letter].
28. See id. at 2-3.
29. See id. (quoting a self-identified survivor of sexual trauma who stated that the strip searches encouraged her post-traumatic stress disorder and flashbacks, and that she observed women cry during searches);
30. id. at 3 ("Prisoners at [Denver Women's Correctional Facility (DWCF)] have complained that the new breed of search exacerbates prior sexual trauma...").
31. See id. at 3.
32. See id. at 3 & nn. 10-11 (citing various criminal justice, criminology, and therapy sources).
33. See, e.g., Andrew A. Crampton, Stripped of Justification: The Eleventh Circuit's Abolition of the Reasonable Suspicion Requirement for Booking Strip Searches in Prisons, 57 CLEV. ST. L. REV. 893, 893-909 (2009)
34. (discussing the history leading up to Powell v. Barrett, 541 F.3d 1298 (11th. Cir. 2008); the decision itself; and post-Powell reactions from other circuits);
35. Deborah L. MacGregor, Stripped of All Reason? The Appropriate Standard for Evaluating Strip Searches of Arrestees and Pretrial Detainees in Correctional Facilities
36. COLUM. J. L. & SOC. PROBS. 163, 178-83 (2003)
37. (arguing that courts should evaluate the constitutionality of strip search policies by combining the standards articulated in Bell v. Wolfish, 441 U. S. 520 (1979)
38. and Turner v. Safley, 482 U. S. 78 (1987)).
39. See infra Part I. C.
40. See infra Part I. C.
41. 441 U. S. 520 (1979).
42. 468 U. S. 576 (1984).
43. 482 U. S. 78 (1987).
44. BLACK'S LAW DICTIONARY 1469 (9th ed. 2009).
45. 68 AM. JUR. 2D SEARCHES AND SEIZURES § 259 (2010).
46. SEE, E. G., BULL V. CITY & CNTY. OF SAN FRANCISCO, 595 F.3D 964, 968 N.4 (9TH CIR. 2010). THE WRITTEN POLICY AT ISSUE SAID: "STRIP SEARCHES INCLUDE A VISUAL BODY CAVITY SEARCH. A STRIP SEARCH DOES NOT INCLUDE A PHYSICAL BODY CAVITY SEARCH." ID.
47. SEE, E. G., STEWART V. LUBBOCK CNTY., 767 F.2D 153, 154 (5TH CIR. 1985) (SIMPLY STATING THAT CLASS C MISDEMEANANTS "WERE STRIP SEARCHED AT THE LUBBOCK COUNTY JAIL PURSUANT TO JAIL POLICY", WITHOUT PROVIDING THE TEXT OF THE POLICY OR DESCRIBING WHAT THE SEARCH ENTAILS).
48. SEE KELSEY V. CNTY. OF SCHOHARIE, 567 F.3D 54, 62 (2D CIR. 2009) ("THE TERM 'STRIP SEARCH' IS USED GENERALLY TO DESCRIBE ANY INSPECTION OF THE NAKED BODY."). ALTHOUGH A SEARCH INVOLVING DISROBING AND A MANUAL BODY CAVITY SEARCH IS ALSO A STRIP SEARCH, THE DEFINITION OF "STRIP SEARCH" IN THIS NOTE EXCLUDES MANUAL BODY CAVITY SEARCHES. CASE LAW SUGGESTS THAT SUCH SEARCHES MAY UNDERGO A DIFFERENT LEGAL ANALYSIS.
49. SEE 16 C C. J. S. CONSTITUTIONAL LAW § 1543 (2005) ("Because of the special insult to human dignity involved when the police seek evidence in body apertures..., special rules restrict internal body searches, and if the bodily intrusion is conducted by means so patently abusive as to shock the conscience, the search may violate due process.").
50. 354 F.3d 57 (1st Cir. 2003).
51. Id. at 59.
52. See id. at 63-64.
53. But see Kelsey, 567 F.3d at 63-64 (holding that a county jail's clothing exchange policy did not violate the Fourth Amendment because incidentally seeing detainees' bodies and genitals during a clothing exchange does not amount to a strip search or an unreasonable search). However, in her dissent, then Second Circuit Judge Sotomayor wrote that the majority used the wrong version of facts and ignored key testimony by the plaintiffs.
54. Id. at 65-67 (Sotomayor, J., dissenting). She stated that although clothing exchanges may serve important objectives, they violated the plaintiffs' constitutional right against unreasonable searches.
55. Id. at 70-71.
56. Wood, 354 F.3d at 63-64.
57. U. S. CONST, amend. IV.
58. Id. The Fourth Amendment has been incorporated into the Due Process Clause of the Fourteenth Amendment, rendering it enforceable against states.
59. See Mapp v. Ohio, 367 U. S. 643, 655(1961).
60. INS v. Delgado, 466 U. S. 210, 215(1984)
61. (quoting United States v. Martinez-Fuerte, 428 U. S. 543, 554(1976));
62. see also United States v. Verdugo-Urquidez, 494 U. S. 259, 266(1990) (stating that historical sources suggest that the Fourth Amendment was meant to protect people from arbitrary actions by the federal government).
63. See Warden v. Hayden, 387 U. S. 294, 304(1967).
64. 389 U. S. 347 (1967).
65. See id. at 358-59 (holding that the defendant was as entitled to his Fourth Amendment rights in a telephone booth as a person in a business office, apartment, or taxicab).
66. Id. at 361 (Harlan, J., concurring).
67. Id.
68. See, e.g., Maryland v. Dyson, 527 U. S. 465, 466(1999) (per curiam).
69. U. S. CONST, amend. IV ("[N]o warrants shall issue, but upon probable cause...").
70. See, e.g., Arizona v. Gant, 129 S. Ct. 1710, 1716(2009) (stating that a search incident to a lawful arrest is an exception to the warrant requirement);
71. Katz, 389 U. S. at 357 & n. 19 (stating that there are "a few specifically established and well-delineated exceptions" to the warrant requirement, and listing cases).
72. 392 U. S. 1 (1968).
73. See id. at 21-22.
74. Id. at 20.
75. Id. at 29.
76. 395 U. S. 752 (1969).
77. Id. at 762-63.
78. Id. at 764.
79. 414 U. S. 218 (1973).
80. Id. at 235.
81. Id at 221-23.
82. Id. at 223.
83. Id. at 235.
84. See Illinois v. Lafayette, 462 U. S. 640, 646 n. 2 (1983) ("We... do not discuss here[] the circumstances in which a strip search of an arrestee may or may not be appropriate.");
85. see also Katarzyna Homenda, Note, The Court is a Fan of Fans: Johnston v. Tampa Sports Authority Correctly Refused to Extend the Special Needs Doctrine to Pat-Downs at Raymond James Stadium, 57 DEPAUL L. REV. 755, 775 n. 170 (2008) (citing Robinson in support of the proposition that a full search of a person includes touching under his/her garments).
86. See Wolff v. McDonnell, 418 U. S. 539, 555-56 (1974) (holding that "[t]here is no iron curtain drawn between the Constitution and the prisons of this country", but recognizing that institutional demands may diminish prisoners' rights).
87. 441 U. S. 520 (1979).
88. Id. at 523-24.
89. Id. at 523, 528.
90. Id. at 530.
91. Id. at 532.
92. Id. at 535-38.
93. Id. at 538.
94. Id. at 540.
95. Id.
96. Id. at 546-47.
97. Id. at 546.
98. Id. at 547-48 (citations omitted)
99. (quoting Pell v. Procunier, 417 U. S. 817, 827(1974)).
100. Id. at 548.
101. But see id. at 568 (Marshall, J., dissenting) (acknowledging the necessity of imposing limitations on prisoners and detainees, but stating that the majority was "blindly deferring to administrative judgments on the rational basis for particular restrictions", which "is an abdication of an unquestionably judicial function").
102. Id. at 558 (majority opinion).
103. Id. at 559.
104. Id.
105. Id.
106. Id. at 560
107. see also infra Part I. C. I.
108. Bell, 520 U. S. at 560. Justice Lewis Powell stated that some cause, such as a reasonable suspicion, is necessary to justify anal and genital searches.
109. Id. at 563 (Powell, J., concurring in part and dissenting in part). Justice Thurgood Marshall stated that courts should not consider whether a restriction is punitive, but whether the government's interests outweigh individual deprivations.
110. Id. at 564 (Marshall, J., dissenting). Justice John Paul Stevens expressed a need for objective criteria, and urged for "careful scrutiny" when correctional facilities do not distinguish among detainees based on dangerousness.
111. Id. at 588 (Stevens, J., dissenting).
112. Id. at 577-78 (Marshall, J., dissenting);
113. id. at 593, 599 (Stevens, J., dissenting);
114. see also infra Part I. B.3 (analyzing Supreme Court Justices' approaches to extralegal disciplines).
115. Bell, 441 U. S. at 577 (Marshall, J., dissenting);
116. see also id. at 593 (Stevens, J., dissenting) (stating that searches "engender 'deep degradation' and 'terror' in the inmates"
117. (quoting United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 147 (S. D. N. Y. 1977))).
118. Id. at 577 (Marshall, J., dissenting);
119. id. at 593 (Stevens, J., dissenting).
120. Id. at 578 (Marshall, J., dissenting).
121. Id.
122. Id. at 577;
123. id. at 599 (Stevens, J., dissenting).
124. See, e.g., Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 973 (9th Cir. 2010) (stating that Bell remains a guiding case for strip search policies). Two years after Bell, Justice William Rehnquist temporarily stayed a mandate by the U. S. Court of Appeals for the Fourth Circuit to remand a case, after the Fourth Circuit held that strip searches cannot be conducted without probable cause.
125. Clements v. Logan, 454 U. S. 1304, 1307-09 (Rehnquist, Circuit Justice 1981);
126. see also infra notes 205-12 and accompanying text. Justice Rehnquist reiterated Bell's holding that probable cause or a weapons-or drug-related arrest was not necessary to justify a strip search. Clements, 454 U. S. at 1309-10. However, the Supreme Court later denied the application for stay and vacated Justice Rehnquist's order.
127. Clements v. Logan, 454 U. S. 1117 (1981).
128. See infra Part II.
129. 468 U. S. 576 (1984).
130. Id. at 578.
131. Id. at 584-85
132. (citing Bell, 441 U. S. at 547).
133. Id. at 586.
134. 482 U. S. 78 (1987).
135. Id. at 89.
136. Id. at 89-90.
137. See generally MacGregor, supra note 22, at 168-78 (reviewing in more detail other Supreme Court cases involving prisoners' rights).
138. See infra Part II.
139. Douglas W. Vick, Interdisciplinarity and the Discipline of Law, 31 J. L. & SOC'Y 163, 181(2004).
140. Id. at 186
141. (quoting Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 36(1992)).
142. Id. at 166
143. (quoting Moti Nissani, Fruits, Salads, and Smoothies: A Working Definition of Interdisciplinary, 29 J. EDUC. THOUGHT 121, 122(1995)).
144. Id. at 166-68.
145. Id. at 169.
146. Id. at 166, 172.
147. Id. at 164-65 (discussing different definitions and descriptions of the term "interdisciplinarity");
148. see also JOE MORAN, INTERDISCIPLINARITY 15 (2002) (arguing that the ambiguity of the term "interdisciplinary" reflects its "flexibility and indeterminacy").
149. Kenneth G. Dau-Schmidt, Pittsburgh, City of Bridges: Developing a Rational Approach to Interdisciplinary Discourse on Law, 38 LAW & SOC'Y REV. 199, 200(2004) (discussing the development of a multidisciplinary discourse involving law, society, and economics). However, when disciplines mix together successfully, the mixture may be routine and thus no longer considered interdisciplinary.
150. Vick, supra note 98, at 172-73.
151. Vick, supra note 98, at 171.
152. Emily Bruusgaard et al., "Are We All on the Same Page?": The Challenges and Charms of Collaboration on a Journey Through Interdisciplinarity, 7 GRADUATE J. SOC. SCI. 39, 43(2010);
153. see also id. at 44 (emphasizing flexibility and openness in interdisciplinary collaboration).
154. MORAN, supra note 104, at 182.
155. Id at 182-84.
156. Id.
157. Bruusgaard et al., supra note 107, at 43.
158. Ronald Roesch et al., Social Science and the Courts: The Role of Amicus Curiae Briefs, 15 LAW & HUM. BEHAV. 1, 4-5 (1991).
159. Id. at 5.
160. But see Vick, supra note 98, at 185 (stating that people may believe that scientific studies involving numbers are more conclusive than other studies).
161. Vick, supra note 98, at 177-79 (stating that the law is a closed system that requires considering only a finite group of authorities).
162. See id. at 177-78 (stating that lawyers primarily study what judges, juries, and other decision makers have done, then manipulate and present their cases according to those decisions).
163. Id. at 183.
164. Id. (discussing that legislators also may look to the social sciences in bringing about legal reforms).
165. See, e.g., Geoffrey Samuel, Interdisciplinary and the Authority Paradigm: Should Law Be Taken Seriously by Scientists and Social Scientists?, 36 J. L. & SOC'Y 431, 437(2009).
166. Vick, supra note 98, at 186-87.
167. Samuel, supra note 118, at 440 (stating that anthropology has been described as losing its identity as a distinct discipline).
168. Id.
169. Id. at 439.
170. Id at 441.
171. See Roesch et al., supra note 112, at 3.
172. Klaus-Friedrich Koch, Law and Anthropology: Notes on Interdisciplinary Research, 4 LAW & SOC'YREV. 11, 17-21 (1969).
173. Id at 20.
174. See Monica K. Johnson & Jennifer K. Robbennolt, Using Social Science to Inform the Law of Intestacy: The Case of Unmarried Committed Partners, 22 LAW & HUM. BEHAV. 479, 480, 497(1998) (stating that such research can reach policymakers and, through them, change the legal and social climate for unmarried committed partners and their families).
175. Lisa Colarossi & Mary Ann Forgey, Evaluation Study of an Interdisciplinary Social Work and Law Curriculum for Domestic Violence, 42 J. SOC. WORK EDUC. 307, 307(2006).
176. Id. at 318. However, the authors of the article recognized that there could be a selection bias.
177. Id. at 319-20.
178. Id at 320.
179. Id.
180. See Merav Moshe Grodofsky, The Contribution of Law and Social Work to Interdisciplinary Community Development and Peace Building in the Middle East, 15 J. COMMUNITY PRAC. 45 (2007).
181. Id. at 51.
182. Id at 52.
183. Id at 53-58.
184. 208 U. S. 412 (1908).
185. Id at 417.
186. Id. at 419 n. l. Legal briefs that contain extralegal analyses of statistics and other sources have become known as "Brandeis briefs" after Muller.
187. See Danaya C. Wright, The Logic and Experience of Law: Lawrence v. Texas and the Politics of Privacy, 15 U. FLA. J. L. & PUB. POL'Y 403, 409-17 (2004) (providing a history of the Brandeis brief).
188. Muller, 208 U. S. at 420-21.
189. See, e.g., Brief of Amici Curiae Lambda Legal Defense & Education Fund, Inc. and Gay & Lesbian Advocates & Defenders in Support of Respondents, Christian Legal Soc'y Chapter of Univ. of Cal. v. Martinez, 130 S. Ct. 2971 (2010) (No. 08-1371)
190. WL 989697 (homosexuality);
191. Brief of Social Scientists, Medical Scientists, & Media Effects Scholars as Amici Curiae in Support of Respondents, Schwarzenegger v. Entm't Merchs. Ass'n, 130 S. Ct. 2398 (2010) (No. 08-1448)
192. WL 3697191 (violent video games); Brief of Psychology Professors as Amici Curiae in Support of Petitioners
193. Harjo v. Pro-Football, Inc., 130 S. Ct. 631 (2009) (No. 09-326)
194. WL 3359185 (disparaging trademarks);
195. Roesch et al., supra note 112, at 1-2 (collecting cases with social science briefs on the other topics).
196. Roesch et al., supra note 112, at 4.
197. See Linda R. Tropp et al., The Use of Research in the Seattle and Jefferson County Desegregation Cases: Connecting Social Science and the Law, 7 ANALYSES SOC. ISSUES & PUB. POL'Y 93, 94(2007)
198. (stating that the Supreme Court relied on social science research on sex role stereotyping in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989)
199. and on the beneficial effects of student body diversity in Grutter v. Bollinger, 539 U. S. 306 (2003)).
200. 347 U. S. 483 (1954).
201. Id. at 494 & n. ll (citing books and psychology journal articles from the 1940s and 1950s on the effects of discrimination and segregation).
202. 497 U. S. 836 (1990).
203. Id. at 855 (citing an amicus curiae brief by the American Psychological Association (APA) and a conference paper presented at an APA conference).
204. 551 U. S. 701 (2007).
205. Id at 711, 735.
206. Id. at 746 (discussing Brown's holding that race-based segregation denotes inferiority, as well as other cases involving government classifications that "contribut[e] to an escalation of racial hostility and conflict" and "demean[] the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities").
207. Id. at 763, 766 (Thomas, J., concurring).
208. Id. at 780.
209. Id. at 791 (Kennedy, J., concurring).
210. Id. at 845 (Breyer, J., dissenting).
211. Tropp et al., supra note 142, at 113.
212. Id.
213. Id.
214. Id. at 114. Moreover, social scientists maintain that advocacy does not diminish science and research: "[A] truly neutral brief is an elusive if not an impossible goal.... It is possible to be scientific without being neutral, to be objective yet form an opinion about the implications of the research."
215. Roesch et al., supra note 112, at 7.
216. The research discussed in this section, and generally in this Note, only focuses on the effects of strip searches as conducted according to the policies in correctional facilities, assuming officers do not abuse their power in conducting the searches. However, the potential for abuse exists and is a factor that courts may take into account when deciding the constitutionality of corrections officers strip searching all individuals upon arrest. See ALLEN J. BECK ET AL., U. S. DEP'T OF JUSTICE, SEXUAL VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 2008-09, at 23-24 (2010) (finding that at least four of every ten victims of sexual misconduct by prison staff reported being sexually touched during a strip search or pat down).
217. Strip search policies are also a matter of concern for courts of other countries. The Canadian Supreme Court held that strip searches are "inherently humiliating and degrading" no matter how they are carried out, and therefore cannot be used routinely. R. v. Golden, [2001] 3 S. C. R. 679, para. 90 (Can.).
218. See Tim Newbum et al., Race, Crime and Injustice?: Strip Search and the Treatment of Suspects in Custody, 44 BRIT. J. CRIMINOLOGY 677, 679(2004).
219. See Kyle Kirkup, Indocile Bodies: Gender Identity and Strip Searches in Canadian Criminal Law, 24 CANADIAN J. L. & SOC'Y 107, 114(2009) (stating that these problems are especially prevalent in minority populations, given the gross power imbalance between them and the police).
220. M. Margaret McKeown, Strip Searches Are Alive and Well in America, 12 HUM. RTS. 37, 42(1985) (stating that detainees may not even tell their families about their experiences after being strip searched).
221. Id.
222. See MAEVE MCMAHON, WOMEN ON GUARD: DISCRIMINATION AND HARASSMENT IN CORRECTIONS 178 n. 6 (1999);
223. see also James Barron, Times Sues City Police, Saying Information Has Been Illegally Withheld, N. Y. TIMES, Dec. 22, 2010, at A29 (stating that the New York Times sued the New York Police Department for violating a state Freedom of Information Law that requires the Department to provide information to the press and public).
224. See MCMAHON, supra note 164, at 178 n. 5.
225. Id. at 178 n. 6.
226. Id.
227. See McKeown, supra note 162, at 37, 42;
228. see also RUSSELL P. DOBASH ET AL., THE IMPRISONMENT OF WOMEN 204 (1986) (stating that female prisoners in Scotland felt that the benefits of receiving visits were outweighed by their feelings of degradation and humiliation after body searches).
229. McKeown, supra note 162, at 42 ("Post-search symptoms include sleep disturbance, recurrent and intrusive recollections of the event, inability to concentrate, anxiety, depression and development of phobic reactions.").
230. DOBASH ET AL., supra note 168, at 204-05.
231. See Archuleta v. Wagner, 523 F.3d 1278, 1282 (10th Cir. 2008) (stating that the plaintiff lactated during the strip search, was not allowed to cover herself and instead was given a cut maxi-pad by the booking officer and a male jailer, neither of whom used gloves upon handling the pad).
232. See DOBASH ET AL., supra note 168, at 205;
233. Linda Moore & Phil Scraton, The Imprisonment of Women and Girls in the North of Ireland: A "Continuum of Violence", in THE VIOLENCE OF INCARCERATION 124, 128 (Phil Scraton & Jude McCulloch eds., 2009);
234. see also Jude McCulloch & Amanda George, Naked Power: Strip Searching in Women's Prisons, in THE VIOLENCE OF INCARCERATION, supra, at 107, 119 (stating that requiring women to remove their tampons and to squat and cough will not cause items concealed in the vagina to fall out, and that a contrary belief "reveals either a profound ignorance of women's anatomy or an indifference to the stated purpose of strip searches in favour of a deliberate strategy to humiliate and degrade women").
235. See Kirkup, supra note 161, at 107 (stating that a preoperative male-to-female transgendered woman who was arrested and strip searched in Ontario, Canada claimed that her requests for female officers to conduct the searches were denied and that she was subjected to a "split search" in which "male officers examined [her] 'male' lower body while female officers inspected her 'female' upper body").
236. Newburn et al., supra note 160, at 679.
237. Id at 679-80.
238. Id. at 679.
239. Id. at 681-83.
240. Id. at 688.
241. Id.
242. Id. at 688-89. "White European" referred to "apparently-white British-born detainees, but may also have been used by the police to refer to someone born, for example, in Canada, France or Australia."
243. Id. at 681. Similarly, the study did not distinguish between black Caribbeans and black Africans.
244. Id. at 680-81 (explaining that ethnic classifications were based on police assessments of ethnicity, and that although these assessments may be inaccurate, they reflect the police officers' perceptions of detainees' ethnicities which ultimately influence treatment of the detainees).
245. Id at 693.
246. An important distinction is that, unlike for arrestees, strip searches of inmates constitute one part of a total system of control and isolation, and thus may have more profound, negative effects. See McCulloch & George, supra note 172, at 112-13 (stating that routine strip searches in prisons discourage female inmates from seeing visitors and undermine prisons' attempts to rehabilitate, counsel, and improve women's self-esteem and skills). In addition, strip search policies applied to inmates may perpetuate a vicious cycle in which drug-abusing inmates-who pose the greatest risk of smuggling drugs, syringes, and other contraband into prisons-may experience powerlessness, lowered self-esteem, mental anguish, and suicidal thoughts, which increase the need for drugs.
247. Id. at 119-20.
248. R. v. Golden, [2001] 3 S. C. R. 679, para. 90 (Can.) (stating that strip searches are described as "visual rape" and victims, particularly women and minorities, may experience a search as a sexual assault);
249. Begofla Aretxaga, The Sexual Games of the Body Politic: Fantasy and State Violence in Northern Ireland, 25 CULTURE, MED. & PSYCHIATRY 1, 6(2001) (stating that the process of strip searching a female political prisoner "inscrib[es] the body... with the meanings of sexual subjugation through a form of violence that phantasmatically replicates the scenario of rape");
250. McCulloch & George, supra note 172, at 109 (stating that prisoners experience strip searches "as a form of sexual violence or coercion").
251. McCulloch & George, supra note 172, at 109.
252. Id at 113.
253. Aretxaga, supra note 183, at 15.
254. Id.
255. Id. at 15-16.
256. McCulloch & George, supra note 172, at 114 (discussing the traumatizing effects of strip searches on Catholic women imprisoned in Northern Ireland). Strip searches were also used to exploit and bring psychological harm to Muslim/Arab prisoners in Abu Ghraib. Id. ("Muslim victims of sexual torture forever carry a stigma.... [M]erely being stripped naked implies the breaking of a strict taboo, which leaves victims feeling extremely exposed and humiliated.").
257. Id. (stating that strip searches can re-victimize women who were traumatized in incidents with men in the past);
258. Moore & Scraton, supra note 172, at 128 (stating that women survivors of domestic abuse experienced additional trauma from strip searches).
259. McCulloch & George, supra note 172, at 116.
260. Id.
261. Id.
262. Id. at 116-17.
263. See Craig Haney & Philip Zimbardo, The Past and Future of U. S. Prison Policy: Twenty-Five Years After the Stanford Prison Experiment, 53 Am. PSYCHOLOGIST 709 (1998).
264. Id. at 710;
265. see also id. at 709 (stating that the guards were so abusive that the twoweek experiment was stopped after six days).
266. Id at 721.
267. Id.
268. But see generally Thomas Camahan & Sam McFarland, Revisiting the Stanford Prison Experiment: Could Participant Self-Selection Have Led to the Cruelty?, 33 PERSONALITY & SOC. PSYCHOL. BULL. 603 (2007) (finding, in a separate experiment using an identical ad used to recruit participants for the Stanford Prison Experiment (SPE), that volunteers for the study scored significantly higher on measures of aggressiveness, authoritarianism, narcissism, and social dominance, and lower on empathy and altruism, thus suggesting that there may be a selection bias that influenced the outcomes of the SPE).
269. Haney & Zimbardo, supra note 195, at 721.
270. Id.
271. Bell v. Wolfish, 441 U. S. 520, 547-48 (1979).
272. Haney & Zimbardo, supra note 195, at 721.
273. Id at 721-22.
274. See, e.g., Wood v. Hancock Cnty. Sheriff's Dep't, 354 F.3d 57 (1st Cir. 2003);
275. Shain v. Ellison, 273 F.3d 56 (2d Cir. 2001);
276. Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985);
277. Stewart v. Lubbock Cnty., 767 F.2d 153 (5th Cir. 1985);
278. Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984);
279. Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983);
280. Dufrin v. Spreen, 712 F.2d 1084 (6th Cir. 1983);
281. Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981).
282. 660 F.2d 1007.
283. Id. at 1009.
284. Id. at 1010.
285. Id. The policy was instituted after a misdemeanant who was not strip searched shot a deputy. Id.
286. Id.
287. Id. at 1011.
288. Id, at 1013.
289. Id.
290. See, e.g., Watt v. City of Richardson Police Dep't, 849 F.2d 195, 196 (5th Cir. 1988) (recognizing that an analysis of strip search policies both facially and as applied "begins, and practically ends", with Bell).
291. But see Stewart v. Lubbock Cnty., 767 F.2d 153, 156 (5th Cir. 1985)
292. (citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1271 (7th Cir. 1983), for the proposition that reasonableness cannot be precisely defined or mechanically applied).
293. See, e.g., Roberts v. Rhode Island, 239 F.3d 107, 108 (1st Cir. 2001) (police arrested plaintiff Roberts based on an administrative error for an outstanding warrant which was actually withdrawn seven months earlier);
294. Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985) (plaintiff Jones was arrested on a warrant for refusing a summons after failing to leash his dog);
295. Stewart, 767 F.2d at 154 & n. l (stating that approximately one thousand strip searches were conducted each month pursuant to a blanket jail policy, including strip searches of a plaintiff arrested for public intoxication and another plaintiff arrested on a warrant for issuing a bad check);
296. Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984) (plaintiff was arrested on a warrant for a speeding ticket on his way to work at 7:30a.m.);
297. Mary Beth G, 723 F.2d at 1267 n. 2 (three plaintiffs were arrested for traffic offenses and one plaintiff was arrested for a subsequently-dismissed disorderly conduct charge).
298. See supra text accompanying note 77.
299. Roberts, 239 F.3d at 110
300. (quoting Swain v. Spinney, 117 F.3d 1, 6 (1 st Cir. 1997)).
301. Id.
302. (quoting Wood v. demons, 89 F.3d 922, 928 (1st Cir. 1996)).
303. Mary Beth G, 723 F.2d at 1272
304. (quoting Tinetti v. Wittke, 479 F. Supp. 486, 491 (D. Wis. 1979));
305. see also Jones, 770 F.2d at 742 (describing a strip search as "intrusive, depersonalizing, and distasteful").
306. See, e.g., Roberts, 239 F.3d at 113;
307. Dufrin v. Spreen, 712 F.2d 1084, 1087 (6th Cir. 1983).
308. See Masters v. Crouch, 872 F.2d 1248, 1250 (6th Cir. 1989) (noting that the plaintiff, arrested for failing to appear in court after a judge's administrative error of recording the wrong court date, was told to open her blouse for inspection in plain view of others and then strip searched on a different floor);
309. Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984) (stating that Hill was strip searched in the vicinity of almost a dozen people after he had already been frisked).
310. See supra text accompanying notes 76-77.
311. See Mary Beth G, 723 F.2d at 1272.
312. Roberts, 239 F.3d at 111.
313. See, e.g., id. at 111-12 (stating that detainees are unlikely to smuggle contraband when handcuffed and arrested spontaneously, and further stating that police officers can use less invasive searches such as a clothing search to look for contraband);
314. see also Shain v. Ellison, 273 F.3d 56, 65 (2d Cir. 2001) (stating that misdemeanants who remain detained because they do not post bail usually cannot afford bail, refuse bail, or had family court issues, and none of these reasons pose a reasonable suspicion that they have weapons or contraband);
315. Mary Beth G, 723 F.2d at 1272-73 (holding that the city failed to show that women arrested for traffic or other minor offenses and who are in the lockups only to await bail pose severe dangers to the security of the lockups).
316. See Archuleta v. Wagner, 523 F.3d 1278, 1282 (10th Cir. 2008) (stating that Archuleta was frisked once at the scene of arrest and two more times at the detention facility, then strip searched even after the booking officer saw that Archuleta lacked the moles and tattoos described in an arrest warrant and told a receptionist "this isn't her");
317. Roberts, 239 F.3d at 108-09 (stating that Roberts was subjected to a visual body cavity strip search which revealed no contraband, but still underwent a similar search later that day);
318. Jones v. Edwards, 770 F.2d 739, 740 (8th Cir. 1985) (stating that Jones was subjected to a visual body cavity strip search at the jail despite the police arresting him from his home and after going upstairs with him while he
319. See Masters v. Crouch, 872 F.2d 1248, 1254 (6th Cir. 1989) (stating that mingling with prison inmates weighs in favor of heightened security measures, but does not by itself justify strip searches without considering the offense or whether an arrestee has weapons or contraband);
320. Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984) (similar).
321. See, e.g., Archuleta, 523 F.3d at 1286 & n. 5 (declining to adopt a bright-line rule for constitutional strip searches and requiring more fact-intensive inquiries with at least reasonable suspicion of weapon, drug, or contraband possession); Masters, 872 F.2d at 1255 (holding that while a strip search is objectively reasonable for arrestees charged with violent crimes, it is not reasonable in traffic violations or other nonviolent minor offenses without any individualized reasonable suspicion of the arrestee having a weapon or contraband).
322. The written policy in Bull contains thorough instructions such as "[r]aise his/her arms above their [sic] head and rotate 360 degrees", and "turn his/her head first to the left and then to the right so the searching officer can inspect the arrestee's ear orifices." Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 968 n. 4 (9th Cir. 2010).
323. The first sentence of the policy states that strip searches do not include physical body cavity searches. Id. However, both Mary Bull and Leigh Fleming alleged that they were subjected to body cavity searches. See supra text accompanying notes 3, 5.
324. ACLU Letter, supra note 17, at 1-2.
325. See id. at 1.
326. Id. On September 24, 2010, the Colorado Department of Corrections (DOC) issued a new regulation that no longer includes labia lifts, but requires women to lift their breasts and men to "lift genitalia and pull back foreskin of penis." COLO. DEP'T OF CORR., ADMINISTRATIVE REGULATION NO. 300-06, SEARCHES AND CONTRABAND CONTROL 6 (2010). Inmates also need to turn their back to DOC officers, squat and cough, then bend forward and separate their buttocks for inspection.
327. Id.
328. 849 F.2d 195 (5th Cir. 1988).
329. Id. at 195. Indeed
330. Kelly v. Foti, 11 F.3d 819 (5th Cir. 1996), characterized Watt as holding that officials can only strip search a minor offender who posts bond if there is a reasonable suspicion that the detainee has weapons or contraband.
331. Id. at 821. Kelly held that strip searching a woman arrested for making an illegal turn and driving without a license was not objectively reasonable.
332. Id. at 822.
333. Watt, 849 F.2d at 196.
334. Id. at 196 & n. 2 (stating that the conviction was set aside after Watt completed sixteen months of probation).
335. Id. at 196. Additionally, police knew that Watt's release was imminent because she called her neighbor for bail.
336. Id.
337. Id.
338. Id.
339. See id. at 197.
340. Id at 198.
341. Id. at 199.
342. 712 F.2d 1084 (6th Cir. 1983).
343. Id. at 1085.
344. Id.
345. Id. at 1087
346. (quoting Bell v. Wolfish, 441 U. S. 520, 547(1979)).
347. Id.
348. Id. at 1088.
349. Id. at 1089.
350. Id.
351. see also Dobrowolskyj v. Jefferson Cnty., 823 F.2d 955, 958 (6th Cir. 1987) (upholding a strip search because the security interests are even stronger than those in Dufrin, since plaintiff Dobrowolskyj was arrested for menacing, an offense typically associated with weapons, and came into contact with the general jail population).
352. 541 F.3d 1298 (11th Cir. 2008) (en banc).
353. Id. at 1300.
354. Id.
355. Id. at 1301.
356. Id.
357. Id. at 1302; see also supra notes 93-97 and accompanying text.
358. Powell, 541 F.3d at 1307;
359. see also id. at 1309 (stating that upon remand from the Supreme Court in Bell, the district court in the case must have recognized that reasonable suspicion was not required for strip searches, and then stating that other courts should recognize the same).
360. Id. at 1310.
361. Id. at 1311.
362. Id. at 1313.
363. Id. at 1314.
364. Id. at 1313.
365. Id.
366. Id. at 1314.
367. See supra notes 1-13 and accompanying text.
368. Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 967 (9th Cir. 2010).
369. Id. at 969 (stating that weapons were also found in body cavities).
370. Id. But see id. at 991 (Thomas, J., dissenting) (stating that there was no empirical evidence that body cavity searches decreased the amount of contraband in jails).
371. Id. at 971 (majority opinion).
372. Id. at 975.
373. Id.
374. Id. at 976.
375. Id. at 977
376. (discussing Thompson v. City of Los Angeles, 885 F.2d 1439 (9th Cir. 1989)
377. and Giles v. Ackerman, 746 F.2d 614 (9th Cir. 1984) (per curiam)).
378. Id at 978-81.
379. Id. at 982. The Ninth Circuit decided Bull solely on the grounds that a strip search policy can apply to all arrestees introduced into the general jail population, but not arrestees charged with minor offenses who remain at police stations.
380. See Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 957 (9th Cir. 2010).
381. 621 F.3d 296 (3d Cir. 2010).
382. Id. at 299. The charges against Florence were ultimately dismissed.
383. Id.
384. Id.
385. Id.
386. See id. at 306;
387. see also supra note 77 and accompanying text.
388. Florence, 621 F.3d at 307.
389. Id. (discussing the place and manner in which the searches were conducted, two of the four factors in Bell's balancing test).
390. Id.
391. Id.
392. Id. at 308.
393. But see id. at 312 (Pollak, J., dissenting) (noting that both counties failed to present evidence of smuggling problems in their jails).
394. Id. at 308 (majority opinion).
395. Id.
396. Id. at 309.
397. Id at 310.
398. Id at 312.
399. Appellant's Opening Brief at 15-19, Bull v. City & Cnty. of San Francisco, 595 F.3d 964 (9th Cir. 2010) (No. 06-15566), 2007 WL 1302885.
400. Id at 18.
401. Id. at 18-19
402. (citing ABA SPECIAL COMM. ON CRIME PREVENTION AND CONTROL, NEW PERSPECTIVES ON URBAN CRIME 25 (1972);
403. Joseph A. Califano, Op-Ed., A National Attack on Addiction is Long Overdue, N. Y. TIMES, Sept. 23, 1986, at A35).
404. Brief of Sheriffs Ass'n of New Jersey et al. as Amici Curiae in Support of Defendants-Appellants' Brief on Appeal at 20, Florence v. Bd. of Chosen Freeholders of Burlington, 621 F.3d 296 (3d Cir. 2010) (Nos. 09-3603, 09-3661)
405. WL 5635568.
406. Id.
407. Id.
408. Brief on Behalf of Amicus Curiae Policemen's Benevolent Ass'n, Local 249 at 13, Florence, 621 F.3d 296 (Nos. 09-3603, 09-3661)
409. WL 5635567.
410. Id. at 13.
411. Id. at 15.
412. Id.
413. See generally Brief on Behalf of Amicus Curiae Pennsylvania Prison Society in Support of Plaintiff-Appellee Albert W. Florence, Florence, 621 F.3d 296 (No. 09-3603; No. 09-3661)
414. 2010 WL 341403.
415. Id. at 9.
416. Id. at 9-10
417. (citing Cruzan v. Dir. of Mo. Dep't of Health, 497 U. S. 261 (1990);
418. Winston v. Lee, 470 U. S. 753 (1985);
419. Schmerber v. California, 384 U. S. 757 (1966);
420. Rochin v. California, 342 U. S. 165 (1952)).
421. Id. at 11
422. (citing McKeown, supra note 162, at 42);
423. see also supra note 169 and accompanying text.
424. Id. (second alteration in original) (citation omitted)
425. (quoting David C. James, Note, Constitutional Limitations on Body Searches in Prisons, 82 COLUM. L. REV. 1033, 1049-50 (1982)).
426. Id. at 20.
427. Id. at 20-21.
428. See, e.g., supra notes 2-9 and accompanying text (describing three detainees who were released twelve hours or less after being strip searched).
429. See supra notes 162-63 and accompanying text.
430. See supra notes 165-67 and accompanying text.
431. See supra notes 164-67 and accompanying text.
432. See supra note 159 and accompanying text.
433. See supra Part I. C.
434. See supra note 73 and accompanying text.
435. See Parents Involved in Cmty. Sch. V. Seattle Sch. Dist. No. 1, 551 U. S. 701, 780(2007) (Thomas, J., concurring);
436. id. at 791 (Kennedy, J., concurring);
437. see also supra notes 151-52 and accompanying text.
438. See supra notes 202-03 and accompanying text.
439. See supra Part I. A.2-3.
440. See supra Partl. A.3.
441. See supra Part II. A.l. II. B.
442. See supra notes 87-97 and accompanying text Compare Part H. A, with Part H. B.
443. Bell did not clearly apply the balancing test to the strip search policy at issue in the case, but merely recognized the security dangers in the detention facility and the invasive nature of strip searches. See supra notes 78-80 and accompanying text.
444. See supra notes 215-18 and accompanying text.
445. See supra notes 278-81 and accompanying text.
446. See supra Part II. B. 1-2.
447. See supra text accompanying notes 279, 281.
448. See supra Part I. C.
449. See supra Part I. C.
450. See supra Part I. C.
451. Courts must be wary of being swayed by current events and trends, thereby going beyond the constitutional limits of reasonableness. See Richards v. Wisconsin, 520 U. S. 385, 392 n. 4 (1997) (Scalia, J., concurring) (stating that this would go against the purpose of the reasonableness requirement, which was adopted to protect peoples' privacy and property "even if a later, less virtuous age should become accustomed to considering all sorts of intrusion 'reasonable'"
452. (quoting Minnesota v. Dickerson, 508 U. S. 366, 380(1993))).
453. See supra note 219 and accompanying text; see also supra notes 270, 282 and accompanying text.
454. See supra note 220 and accompanying text.
455. See supra note 222 and accompanying text.
456. See supra note 224 and accompanying text.
457. See supra notes 259-63, 266-72, 284-85, 288 and accompanying text.
458. See supra Part I. C.
459. See supra notes 2-9 and accompanying text.
460. 239 F.3d 107 (1st Cir. 2001).
461. See supra note 224 and accompanying text. Similarly, expert testimony in Bell stated that there is not enough time and opportunity to hide contraband in a body cavity during a visit at a detention facility.
462. See supra note 84 and accompanying text. This is likely also true of individuals who are arrested and who did not plan their arrests.
463. See supra notes 174-81 and accompanying text.
464. This was done in Newburn's research study that discovered that police officers who had discretion to strip search detainees exercised this discretion in discriminatory ways. See supra notes 174-81 and accompanying text.
465. See supra notes 164-67 and accompanying text.
466. See supra notes 159-67 and accompanying text;
467. see also supra notes 308-13 and accompanying text.
468. See supra notes 228-32 and accompanying text.
469. See supra notes 171-73 and accompanying text.
470. See supra Part I. C.
471. See supra notes 183-88 and accompanying text.
472. See supra notes 190-94 and accompanying text.
473. DOBASH ET AL., supra note 168, at 204;
474. see also supra note 170 and accompanying text.
475. See supra notes 195-203 and accompanying text.
476. See supra note 203 and accompanying text.
477. See supra Part II. B.
478. See, e.g., supra notes 301-07 and accompanying text. The Third Circuit in Florence made no mention of the social science arguments in the amicus brief submitted to the court. See Florence v. Bd. of Chosen Freeholders of Burlington, 621 F.3d 296 (3d Cir. 2010);
479. supra Part II. C.
480. See supra notes 168-73, 182-94 and accompanying text.