Strip Searches in the Supreme Court Prisons and Public Health

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1 H e a l t h L a w, E t h i c s, a n d H u m a n R i g h t s Strip Searches in the Supreme Court Prisons and Public Health George J. Annas, J.D., M.P.H. At least since the 9/11 attacks, there has been a disturbing trend by federal and state governments to merge public health and public safety. This merger has been most explicit in the area we now call public health preparedness or all-hazards preparedness, but it is also evident in scientific research that could be used by terrorists, now referred to as dual use research. 1 A good example is the controversy over whether research on flu transmission in ferrets should be published, with the final decision resting in large measure on the views of national-security and biosafety experts. 2 The U.S. Supreme Court has now explicitly endorsed this public health public safety merger in a troubling opinion on the constitutionality of routine strip searches of arrestees for even the most minor crime, such as not wearing a seat belt, before confinement in a jail or prison. 3 The question before the Court was whether such routine strip searches violate the Fourth Amendment s prohibition of unreasonable searches. The case was decided five to four, and there were two concurring opinions that made it clear that there is major disagreement among the justices. Public health and medical professionals should be deeply concerned with how the majority merged public health with public safety and used public health and medical rationales, combined with post-9/11 fear, to justify routine strip searches of the 13 million Americans arrested annually. The Strip Searches of Albert Florence In 1998, Albert Florence, a 38-year-old black man, was arrested for obstruction of justice and use of a deadly weapon. He pleaded guilty to lesser offenses and was sentenced to pay a fine in monthly installments. Florence fell behind on his payments, and a warrant was issued for his arrest, after which he paid the balance of his fine. Owing to a mistake, the warrant, which should have been rescinded, remained active in the New Jersey state computer database. Two years later, Florence and his wife were stopped in their car by a state trooper (Florence was a passenger in the car), and on the basis of the outstanding warrant, he was arrested. He was held at the Burlington County Detention Center for 6 days and then transferred to the Essex County Correctional Facility before the mistake was discovered and he was released. In court, he did not challenge either his arrest or confinement but only the strip searches performed at his admission to each facility. 3 Burlington County jail procedure required every arrestee to shower with a delousing agent and to be checked by prison guards for scars, marks, gang tattoos, and contraband as they disrobed. Florence says he was instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the Essex County Correctional Facility, as described by the Court, all new arrestees were instructed to remove their clothing while an officer examined them, looking at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. Florence says he was required to lift his genitals, turn around, and cough in a squatting position as part of the process and then had a mandatory shower. 3 Florence brought suit, alleging that the policies of the jail and the prison violated his Fourth Amendment rights, which, he argued, prohibit routine strip searches of people arrested for minor offenses unless there is a reasonable suspicion that the person is concealing contraband. The trial court agreed, but a divided Third Circuit Court of Appeals reversed the decision, holding that the described strip searches struck a reasonable balance between the security needs of the two detention facilities and the privacy of the prisoners. 4 Florence appealed. n engl j med 367;17 nejm.org october 25,

2 Penologic al Interests Justice Anthony Kennedy wrote the opinion for the Court. He described American jails and prisons as crowded and dangerous, and continued, Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. Under these circumstances, even a regulation that impinges on a prisoner s constitutional rights must be upheld by the Court if it is reasonably related to legitimate penological interests. 3 The Court relied heavily on a 1979 case that upheld a rule requiring strip searches of prisoners (including pretrial detainees) in a federal prison each time they had a contact visit with a person from outside the prison. 5 The Court deferred to the judgment of correctional officials that mandatory strip searches served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items inside. 5 The Court also relied heavily on a 2001 case of a woman who was arrested and taken to jail for not wearing her seat belt an offense for which she could not be sentenced to jail time. The Court rejected her claim that under the circumstances she could not be jailed as a matter of constitutional right. The Court ruled that officers may make an arrest if they have probable cause to believe a person has committed a criminal offense in their presence, and deference must be given to police officers unless there is substantial evidence demonstrating their response to the situation is exaggerated. 6 In Florence, the Court concluded that the record provides full justifications for the [routine strip search] procedures used. Four rationales persuaded the Court that the strip searches were reasonable. The first rationale is a public health danger: the danger of introducing lice or contagious infections into the prison. The second rationale is medical: Persons just arrested may have wounds or other injuries requiring immediate medical attention... [which may] be difficult to identify and treat... until detainees remove their clothes The third rationale is to identify gang members by their tattoos. The fourth rationale is the only one that directly ties strip searches to prison security: detecting concealed contraband (e.g., weapons, drugs, and alcohol, but also pens, cell phones, lighters and matches, and money) that could be used to disrupt the safe operation of a jail. 3 The Court summarizes the strip search rationale of the prisons, which practice was also strongly supported by the Obama administration: It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate... from putting all who live or work at these institutions at even greater risk when he is admitted to the general population (emphasis added). 3 The Court rejected the argument that prison officials should be required to distinguish between those detained for minor offenses (who should not be strip-searched without reasonable suspicion) and those arrested for serious crimes. Justice Kennedy determined that correctional officials reasonably concluded that this distinction would be unworkable. He went further, noting, People detained for minor offenses can turn out to be the most devious and dangerous criminals. In support of this view, Kennedy cited three articles from the New York Times about dangerous men who were stopped for minor traffic offenses; two turned out to be terrorists and one a serial killer. Chief Justice John Roberts wrote a concurring opinion to stress that factual nuances played no role in this case and that he believed the Court was wise to leave open the possibility of exceptions, to ensure that we not embarrass the future. Justice Samuel Alito went further, noting in his concurrence that the strip search at issue is undoubtedly humiliating and deeply offensive to many. He nonetheless went on to underline the public health and medical rationales for strip searches: Some detainees may have lice, which can easily spread to others in the facility, and some detainees may have diseases or injuries for which the jail is required to provide medical treatment. 3 Humiliation and Degr adation Justice Stephen Breyer wrote the dissent, which was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Breyer began his analysis with the privacy interests of the per 1654 n engl j med 367;17 nejm.org october 25, 2012

3 Health Law, Ethics, and Human Rights son being strip-searched: A strip search that involves a stranger peering without consent at a naked individual, and in particular at the most private portions of that person s body, is a serious invasion of privacy... such searches are inherently harmful, humiliating, and degrading. 3 Breyer believed this is especially the case when the reason for the arrest is a minor infraction such that a strip search was not even considered a possibility by the person arrested. He gave a number of examples, taken from the amicus briefs, of arrestees who have been subjected to strip searches: an elderly nun arrested for trespassing during an antiwar demonstration; women strip-searched during periods of lactation or menstruation; victims of sexual violence; people arrested for minor traffic offenses, including driving with a noisy muffler, driving with an inoperable headlight, failure to use a turn signal, and riding a bicycle without an audible bell; and violation of the dog-leash law. The question that this case presents, in Justice Breyer s view, is whether routine strip searches are reasonable for everyone before their placement in the general jail or prison population. Breyer agreed that the general rule is that courts defer to the expertise of prison administrators but, nonetheless, the particular invasion of interests... must be reasonably related to the justifying penological interest and the need must not be exaggerated. 3 It is here that Justice Breyer found the majority opinion deficient. Justice Breyer found no convincing reason for strip searches of those arrested for minor offenses in the absence of reasonable suspicion (e.g., some articulable fact) that they are concealing contraband. Detecting disease, preventing lice, and identifying gang members can be accomplished by routine pat downs, metal detectors, showering (where tattoos can also be observed), and searching an inmate s clothing. Breyer takes seriously only one rationale for strip searches: detecting contraband. But even here Breyer argued that there is no justification for routine strip searches. He reached this conclusion for three reasons. First, there is empirical evidence, documented by two prior courts, that the smuggling of contraband into jails is unusual, and virtually all attempts can be detected by using a standard of reasonable suspicion. Second, correctional associations and professional bodies that have studied the issue recommend against suspicionless strip searches. Finally, laws in at least 10 states prohibit suspicionless searches, and at least seven Courts of Appeals do as well for persons arrested for a minor offense. Breyer then makes his strongest point: Neither the majority s opinion nor the briefs set forth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard. 3 Justice Breyer concluded his opinion for four justices by quoting from the opinion of a fifth (Justice Alito), noting, It remains open for the Court to consider whether it would be reasonable to admit an arrestee for a minor offense to the general jail population, and to subject her to the humiliation of a strip search, prior to any review by a judicial officer. 3 Health, Safet y, and Strip Searches Because all Americans who want to board an airplane can be subject to pat downs, virtual strip searches, and, with suspicion, real strip searches, it might seem extravagant to object to strip searching arrestees. These searches all have the same rationale: they are necessary for safety. Theoretically, those done at the airport are consensual at least for people who have travel options. The ones done in jails and prisons are not consensual in any way so Justice Kennedy found it necessary to adopt additional rationales, which were supplied in large part in Florence by public health, medicine, and post-9/11 fear. Kennedy lists the maintenance of health of the prisoners as the first significant interest that prison officials have in conducting routine strip searches and gives examples, complete with citations from medical or correctional literature. First, the danger of introducing lice or contagious infections, for example, is well documented. Kennedy gives four citations for this proposition, none of which have anything to do with strip searches. The first is an article by Deger and Quick on methicillin-resistant Staphylococcus aureus (MRSA) in county jails, which recommends routine culturing of all skin and soft-tissue infections. 7 The second, by Bick, is more general, noting that Most jails and prisons were constructed to maximize public safety, not to minimize the transmission of disease or to efficiently n engl j med 367;17 nejm.org october 25,

4 deliver medical care. 8 Bick s primary recommendation is for more hand washing areas, isolation rooms, and personal protective equipment. 8 The third citation is to a Federal Bureau of Prisons (BOP) Clinical Practice Guideline on MRSA, 9 and the fourth to a BOP guidance entitled Lice and Scabies Protocol. 10 The MRSA guidance has nothing to do with strip searches, but it does recommend that all inmates undergoing intake medical screening and physical examinations should be carefully evaluated for skin infections. It also notes that MRSA cannot be clinically distinguished from infections caused by other staphylococcal strains or other bacterial pathogens. 10 Finally, the lice and scabies protocol of the BOP recommends lice and scabies screening on intake, but not by strip searches. Instead, it recommends using a magnifying glass and a bright light and systematically combing hair with a fine-toothed nit comb. 10 As for scabies, diagnosis is often based upon a patient history of severe itching and by characteristic distribution of lesions.... Scabies can be presumptively diagnosed through the burrow ink test. 10 Kennedy also accepts a medical rationale for strip searches suggested by prison officials: Persons just arrested may have wounds or other injuries requiring immediate medical attention. It may be difficult to identify and treat these problems until detainees remove their clothes for a visual inspection. The citation for this proposition, which again has nothing to do with strip searches, is a prison-administration handbook. 11 The page of that text cited by Kennedy contains just one sentence on identifying medical problems: If an officer notes that an individual is bleeding... he or she would immediately notify the appropriate medical and supervisory personnel. But it is not the inmate s health that is the prime concern. The handbook continues: Once completed, the health screening report should be placed in the individual prisoner s file. A thoroughly completed health screening form is a valuable tool in preventing frivolous litigation, especially if an individual arrives with multiple superficial cuts and bruises and later claims that he or she was assaulted by jail staff. Further, this report will help medical personnel during their initial medical evaluation of the prisoner (emphasis added). 11 Perhaps because it is difficult to take these medical and public health rationales seriously, Kennedy recounts terrorism-related cases to suggest that people detained for minor offenses can turn out to be the most devious and dangerous criminals. He uses two, Timothy McVeigh and one of the 9/11 suicide bombers. McVeigh was stopped for a minor traffic offense but the officer who stopped him saw a bulge under his windbreaker, which turned out to be a.45 caliber Glock pistol. 12,13 No strip search was involved in his arrest. As for the 9/11 hijacker, Ziad al-jarrah, who was stopped on September 9, 2001, for driving 90 mph in a 65-mph zone, he was given a speeding ticket and sent on his way. No searches of any kind were conducted, and he died 2 days later on Flight Kennedy adds a third example, a serial killer who was arrested after a high-speed chase that led to a crash. He had a dead body in his truck which no strip search was needed to identify. 15 None of these examples have anything at all to do with the reasonableness of routine strip searches in jails and prisons. Nor do any of these examples show that officers have reasonable suspicion that a passenger in a car, like Florence, would hide contraband in a body cavity just in case he might get arrested. Searching McVeigh on the basis of seeing a bulge under his windbreaker was reasonable; strip searching Florence without any reasonable suspicion was not. The Court conflated strip searches by prison guards with a medical screening examination by a physician or other health care personnel for the health of the person and other prisoners. This conflation is deeply disturbing in itself, but even more so in that the Court uses it not to promote medicine or public health but rather to endorse the legitimacy of routine strip searches by prison guards. The Court not only mistakenly equates consensual medical screening by physicians with mandatory routine security screening by prison guards, but also ignores the arguments of physician groups made in the amicus briefs. For example, a brief filed on behalf of a group of psychiatrists argues persuasively that strip searches threaten serious and lasting psychological harm and are a fundamental attack on a person s privacy and dignity. 16 An amicus brief of the Medical Society of New Jersey also argues persuasively that strip searches are ineffective at detecting MRSA. 17 The use of public health and medical ratio 1656 n engl j med 367;17 nejm.org october 25, 2012

5 Health Law, Ethics, and Human Rights nales to justify dehumanizing tactics by the government against its citizens as a substitute for legal analysis should be deeply disturbing to the public, whose Fourth Amendment rights have been demoralizingly eroded. Florence teaches that medical and public health professionals must be diligent to avoid being used and embarrassed by government officials, including courts, in ways that further the agendas of neither medicine nor public health but simply create new rationales for the excessive and arbitrary use of government power. Routine strip searches will not make jails or prisons safer or healthier. Real public health screening and decent medical care would support, instead of undermine, basic civil and human rights. Disclosure forms provided by the author are available with the full text of this article at NEJM.org. From the Department of Health Law, Bioethics, and Human Rights, Boston University Schools of Medicine and Public Health, Boston. 1. Annas GJ. Bioterror and bioart a plague o both your houses. N Engl J Med 2006;354: Publishing risky research. Nature 2012;485:5. 3. Florence v. Board of Chosen Freeholders of County of Burlington, 132 S. Ct (2012). 4. Florence v. Board of Chosen Freeholders of County of Burlington, 621 F. 3d 296 (3d Cir. 2010). 5. Bell v. Wolfish, 441 U.S. 520 (1979). 6. Atwater v. Lago Vista, 532 U.S. 318 (2001). 7. Deger GE, Quick DW. The enduring menace of MRSA: incidence, treatment, and prevention in a county jail. J Correct Health Care 2009;15: Bick JA. Infection control in jails and prisons. Clin Infect Dis 2007;45: Clinical practice guidelines: management of methicillinresistant Staphylococcus aureus (MRSA) infections. Washington, DC: Federal Bureau of Prisons, Clinical practice guidelines: lice and scabies protocol. Washington, DC: Federal Bureau of Prisons, Carlson PM, Garrett JS. Prison and jail administration: practice and theory. 2nd ed. Burlington, MA: Jones and Bartlett Learning, Johnston D. Oklahoma bombing plotted for months, officials say. New York Times. April 25, 1995:A Hijacker got a speeding ticket. New York Times. January 8, 2002:A Morava K. Trooper who arrested Timothy McVeigh shares story. February 24, 2009 ( Trooper-who-arrested-Timothy-McVeigh-shares-story). 15. McQuiston JT. Confession used to portray Rifkin as methodical killer. New York Times. April 26, 1994:B Brief for Psychiatrists as Amici Curiae in support of petitioner (No ). 17. Brief Amici Curiae of Medical Society of New Jersey, the Center for Prisoner Health and Human Rights, and medical experts in support of petitioner (No ). DOI: /NEJMhle Copyright 2012 Massachusetts Medical Society. specialties and topics at nejm.org Specialty pages at the Journal s website (NEJM.org) feature articles in cardiology, endocrinology, genetics, infectious disease, nephrology, pediatrics, and many other medical specialties. These pages, along with collections of articles on clinical and nonclinical topics, offer links to interactive and multimedia content and feature recently published articles as well as material from the NEJM archive ( ). n engl j med 367;17 nejm.org october 25,