So yesterday the Supreme Court decided, in Florence v. Bd. of Freeholders, that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures. A 5-4 decision, opinion by Kennedy, with important concurrences by Roberts and Alito which purportedly limit when these strip-searches can be imposed. Lyle Denniston, of Scotusblog, has a detailed explanation here.
Limitations or no, the decision is troubling on many dimensions. First, as has been noted by others, we tend to arrest and detain people for very minor infractions, such as traffic offenses, regulatory offenses, even unpaid fines. Now these offenders are subject to strip searches if a jail makes this part of its general policy.
Even more troubling, however, is how this latest Supreme Court opinion fits into our general neglect of the conditions in jails. Jails--as distinct from prisons--usually incarcerate pretrial detainees, along with those convicted offenders sentenced to less than one year in prison. And the conditions of our state and local jails are truly horrendous, enough so that imposing them on anyone, let alone those still presumed innocent, can be considered punishment. Unsurprisingly, it is the poor and the disenfranchised who suffer most greatly from the strictures of pretrial detention.
These problems, and many more, are discussed in my latest article, "Justice in the Shadowlands: Pretrial Detention, Punishment, and the Sixth Amendment." Here is the abstract:
In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law.
This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.
Jail, bail, detention, strip-searches: all of these procedures take place in the Shadowlands of Justice. It is up to us--as lawyers, academics, private citizens--to eradicate these dark corners of the criminal justice system.