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Why should we care about the Supreme Court’s ruling allowing strip & cavity searches of prisoners?

5 April 2012

Summary:  We should care about the Court’s ruling allowing almost unlimited use of strip searches of prisoners.  It gives a powerful additional tool allowing police to punish people without trial, let alone conviction and sentencing by a jury of their peers.  Arrest on trivial or even perjured grounds, a few days incarceration and abuse (with strip and body cavity searches now authorized additions to the menu), plus massive legal bills.  The message to the citizens sheep:  don’t anger the government.  The price of protest just went up again, the true inflation of our time.

“I will not be pushed, filed, stamped, indexed, briefed, debriefed or numbered. My life is my own.” 
Cue the laughter…
— A defiant Number 6 in The Prisoner. Hollywood’s fantasy heroes need no collective action, which makes them bad examples for us — not inspirations.

Contents

  1. DoD’s training guide (operating instructions) to the Pre-Academic Laboratory – To prepare military personnel (eg, pilots) for capture, detention and interrogation
  2. The Supreme Court ruling in Florence v. Board of Chosen Freeholders, 2 April 2012
  3. The Obama DOJ and strip searches“, Glenn Greenwald, 3 April 2012
  4. The High Court’s Body-Cavity Fixation“, Scott Horton, Harper’s, 4 April 2012
  5. For more information about America’s shameful criminal justice system

(1)  DoD’s training guide (operating instructions) to the Pre-Academic Laboratory – To prepare military personnel (eg, pilots) for capture, detention and interrogation.

  • A strip and body cavity search inflicts “humiliation and degradation” on the prisoner. (item 2.2, page 5)
  • During a body cavity search the observer is there to make the prisoner feel “uncomfortable and degraded”. (item 5.7, page 14)

(2)  The Supreme Court ruling in Florence v. Board of Chosen Freeholders, majority opinion by Justice Kennedy, 2 April 2012 — Excerpt:

In his view these detainees should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband. It is reasonable, however, for correctional officials to conclude this standard would be unworkable. The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption.

People detained for minor offenses can turn out to be the most devious and dangerous criminals.

Under the Obama Doctrine, high officials are beyond investigation (let bygones be bygones, each new Administration sweeps the slate clean).  Citizens, esp of the lower classes, are presumed guilty and punished until found innocent.

(3) The Obama DOJ and strip searches“, Glenn Greenwald, 3 April 2012 — Excerpt:

In essence, the Florence ruling grants prison officials license to subject every single arrested individual entering the general prison population to humiliating and highly invasive strip searches (that’s 13 million people every year, with hugely disproportionately minority representation), based on the definitive police state mentality — one that has been applied over and over — that isolated risks justify the most sweeping security measures. This policy has been applied to those arrested for offenses such as dog leash laws, peaceful protests, and driving with an expired license.

… In a speech to the Associated Press today, President Obama boasted that his signature domestic policies were basically conservative (he labeled them “centrist”): his individual mandate, he said, was pioneered by conservatives and the Heritage Foundation; his cap-and-trade policy was first proposed by Bush 41; federal spending is lower now than it was during any year of the Reagan administration, etc. Even the successes most touted by his supporters — the Detroit bailout, TARP, the withdrawal from Iraq — were started by Bush 43. Obama’s foreign policy and civil liberties assaults also, of course, were largely shared by his predecessor and are frequently praised by the Right.

(4) The High Court’s Body-Cavity Fixation“, Scott Horton, Harper’s, 4 April 2012

There is very little doubt under the law about the right of prison authorities to subject a person convicted or suspected of a serious crime to conduct a strip search before introducing someone to the general prison population. But does the right to conduct a strip search outweigh the right to dignity and bodily integrity of a person who committed no crime whatsoever, who is apprehended based on a false suspicion that he hadn’t discharged a petty fine — for walking a dog without a leash, say, or turning a car from the wrong lane? Yes. In a 5–4 decision, the Court backed the position advocated by President Obama’s Justice Department, upholding the power of jailers against the interests of innocent citizens.

… Forced nudity and invasion of the body make the prisoner feel helpless, by removing all items that provide the prisoner with psychological support. In other words, the strip search is an essential step in efforts to destroy an individual’s sense of self-confidence, well-being, and even his or her identity. The value of this tool has been recognized by authoritarian governments around the world, and now, thanks to the Roberts Court, it will belong to the standard jailhouse repertoire in the United States. Something to consider the next time you walk Fido without scooping up his droppings — a cop may well be watching, ready to seize the opportunity to invade your rectum.

Your have no need to fear arrest on some minor pretext, followed by abusive confinement and large legal bills.  Unless you are brown, or angered powerful people or even minor government officials.

(5)  For more information about America’s shameful criminal justice system

  1. An opportunity to look in the mirror, to more clearly see America, 10 November 2009 — About our prisons
  2. Nixon declared war on drugs, a major investment of America in itself – but one that’s gone bad, 21 May 2010
  3. The Feds decide who to lock up for life (not just at Guantanamo), another nail in the Constitution’s coffin, 2 June 2010
  4. Being a third world nation is a state of mind, as we will learn (about prison rape), 19 March 2011
  5. Our prisons are a mirror showing the soul of America. It’s not a pretty picture., 28 March 2011
  6. The Collapse of American Criminal Justice System — Excerpts from The Collapse of American Criminal Justiceby William J. Stuntz
  7. More about the collapse of the American Criminal Justice System– Studies and reports about our shameful system.
  8. Final thoughts about the American Criminal Justice System, 21 September 2011
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19 Comments leave one →
  1. 5 April 2012 8:10 am

    Suddenly, the course of this man’s life was interrupted by armed and uniformed agents of the state, who took him away in front of his wife and child. He was held for eight days.

    This was over an unpaid fine.

    Why was this man arrested and held for eight days over a freaking *fine*? (Anybody know if we have the information to contrast the amount of the fine with the cost of jailing someone for eight days? Not that that’s the point.)

    And as it turns out, the fine had been paid; the state’s records were in error. It takes eight days to figure this out?

    Maybe eight days doesn’t sound like much. If so, please do the following thought experiment: Imagine that right now, just this moment, armed and uniformed agents of the state appear, place their hands on you and force you to stop whatever you are doing and go with them. Imagine that you don’t know for how long this will go on. Imagine that it in fact takes eight days… you can’t show up at your job for the next eight days… you can’t keep your appointments for the next eight days… you can’t do the things you do for and with your family for the next eight days… and for those eight days, you don’t even know when it’s going to end. And if you have the chance to explain any of your absences at all, the explanation you’ll have is, “I was in jail.”

    Will someone please explain to me why the outrage here is over the strip search and not the arrest? Because I don’t get it.

    For the record: I have been arrested, I have been locked in a cage (aka jail cell), and I have been strip searched. The last of those does not even *begin* to compare in significance to the other two.

  2. 5 April 2012 10:35 am

    This Supreme Court ruling on strip and search is absolutely horrifying. We have seen little or nothing about this in our UK newspapers. Getting practical, it strikes me that the best way of getting such a ruling reversed might just be to alert the foreign press and expose the US – especially its supreme court – to ridicule and embarrassment. John Stewart alone cannot do it. Anyone got any foreign press friends and contacts? Or do you think this would backfire? (But then it couldn’t get worse, could it?)

    • Pluto permalink
      5 April 2012 11:28 am

      I think it would not have any impact at all. Americans generally don’t read foreign news sources (they also rarely read their own low quality local news sources) so they would be oblivious to the situation.

      The US government has descended so far into madness so it would interpret ridicule from its fellow countries to mean that it should adopt even more invasive procedures.

    • 5 April 2012 1:30 pm

      “The US government has descended so far into madness ”

      Nothing the government has done is mad. It’s the Great Circle of Life, just like in the Disney movies. A people unwilling to govern themselves will be governed by powerful groups, to the benefit of those groups. They will support their group by increased government power, especially police power.

  3. Duncan Kinder permalink
    5 April 2012 12:45 pm

    Every state has a constitution – so if the United States Supreme Court will not act on strip searches – then turn to state courts.

    If state courts will not act; then citizens sit on juries. Jury nullification is always an option – and you should view it as your duty to consider that.

    • 5 April 2012 1:32 pm

      Unfortunately the problem is our sheep like behavior. Saying that we have mechanisms to fight back is accurate, but irrelevant. If we were working the existing normal mechanisms, then we’d not have the problem.

      The great question is not how the American people can fight back, but how to make them want to do so.

    • 5 April 2012 4:31 pm

      Duncan: The trend seems to be to work around the need for pesky, unpredictable things like juries. None was involved here.

      Fabius: Even wanting to fight back is not enough. Cattle may wish to escape their confinement; but they have no way of knowing that if all charged one point of the fence together, the fence would break; nor any means of agreeing on which point to charge. You’ve mentioned the Committees of Correspondence, which Wikipedia characterizes as “shadow governments.” I question whether such a thing is possible today, when domestic spying is apparently commonplace, due process is often an empty formality, and even the formalities can be set aside by the talismanic words “National Security.”

      Any serious threat to the ruling order, once recognized, would be beaten down; if law stands in the way, then those laws would just be ignored (there is no penalty for doing so if you hold high enough rank) or changed more quickly. We are too diverse to act rapidly and decisively as one; and we are too well watched and managed to have the freedom to unify slowly and reasonably.

    • 6 April 2012 1:22 am

      “Any serious threat to the ruling order, once recognized, would be beaten down”

      That’s a common view. Pre-emptive surrender. No need to try, it’s so easy to assume we’ll lose.

      Totally daft. Elections are held every two years. The prison works without walls, because we’re content to live in it. Our complacency forms the walls, not any superiority of force held by our rulers.

  4. david jones permalink
    5 April 2012 4:40 pm

    I definitely did a double-take when I heard the news. Bet it gets more of a reaction than the no-due-process assassination of American citizens though.

    Being strip-searched for an expired registration is difficult for the mind to process.
    Being shot down on secret orders of the United States government is plain impossible.

  5. 5 April 2012 5:23 pm

    ““The US government has descended so far into madness ”

    Nothing the government has done is mad. It’s the Great Circle of Life, just like in the Disney movies. A people unwilling to govern themselves will be governed by powerful groups, to the benefit of those groups. They will support their group by increased government power, especially police power.””
    …………………………

    The Inevitable-ness of this statement is quite chiiling, The finality is almost overwhelming. It certainly shifts the problem to another realm that re-orients the analysis of personal future plans.

  6. annanic permalink
    5 April 2012 9:12 pm

    You are imprisoned , since your birth , in a group of your aunties, nieces and half sisters , with whom you have deep bonds of affection. You are all pregnant or accompanied by your children. You have no hands , or weapons except brute force , and your jailors do not understand one word of your language . They are bigger than you , although not as fast; they quite like to kill you. They employ trained predators with sharp teeth , faster runners than you , predators which would kill by ripping out your guts . You try to escape : ever vigilant for a chink in their defences , you surge from the middle of your group to break free ; you throw yourself at those jailors , to let others escape . Women in such a situation have done no better… please do not sneer at sheep .

    • Rune permalink
      6 April 2012 11:58 am

      Yet, sheep are led to the slaughter and the number of sheep that actually avoid that fate if it is them destined is infinitesimally small.

      Your description makes the comparison of people to sheep even more apt. Ruling elites are the shepherds, the agents of the state the dogs and the people the sheep. Led to the slaughter, those at the fringes trying individual bursts of resistance but easily foiled because there is no true unity of purpose in the herd, there are just a bunch of sheep acting, for the most part, like the nearest other sheep are doing.

      Yet, despite random individual resistance, they are all led to the slaughter. That is the definition of pitiful and in a race which prides itself on better cognitive skills than sheep, it is indeed worth sneering at.

  7. annanic permalink
    6 April 2012 9:09 pm

    They are led to food or water . But to pens or slaughter , they have to be dragged or driven . If you ever try to round up sheep without trained dogs , you find sheep do act effectively . For example , the leading sheep never go though the gap in the fence you forgot to fix , but the middle ones do , instantly followed by the whole flock. The leading sheep never go through the inviting open gate , nor do the middle sheep ; the whole flock rips past and away from the opening because they know you wanted them through it . Prey animals are generally good at reading the intent of predators and doing the unexpected.
    Humans are perhaps more like dogs , easily fooled by kind words and biscuits .

    • 6 April 2012 10:53 pm

      More to the point, humans have shown themselves quite capable of turning more dangerous animals than sheep into prey. Pigs are smart, large, and can be dangerous – but they still haven’t got a chance against humans.

      I hate to say this, but I often feel that Fabius is an optimist. His thesis is often that we need to act against these things that the powerful wish to do to us, and that we need to get off the couch and show them that we’re a force to be reckoned with.

      There’s another hypothesis and that’s that those who love power will always figure out a way to suborn a democracy; that democracy is only present on earth in little fits and spurts that are quickly overcome as soon as the situation stabilizes long enough for the power-hungry and their authoritarian lackies to infiltrate and suborn.

      We did not lose our republic because we were stupid and lazy. Our republic was stolen from us by ruthless people whose love for power exceeds our ability to imagine. We didn’t sit on the couch and ignore what was happening – our forefathers and parents tried to build a stable system, which would have probably worked just fine for a long time, except that it was deliberately undermined and conquered from within, one little bit at a time, by those who seek to rule.

      It’s not rational to live with the constant fear that something that works just fine is going to be interfered with, to the detriment of almost everyone and the benefit of a small number. The reason that the people sit by and watch the country being destroyed is because they’re rational and it doesn’t make sense to them why someone would destroy the country that they live in, too, not realizing that those bastards that do have figured out that they will have a comfortable short-term life at the expense of everyone else’s long-term and that they’ll die (and probably leave a passle of wealthy spawn…) with a gold spoon in their mouth and absolutely nothing on their conscience.

    • 7 April 2012 12:00 am

      Marcus,

      (1) “humans have shown themselves quite capable of turning more dangerous animals than sheep into prey. Pigs are smart, large, and can be dangerous – but they still haven’t got a chance against humans.”

      I don’t understand that. But I agree that humans are the most dangerous animals on the planet.

      (2) “I often feel that Fabius is an optimist.”

      Agreed. See the Smackdowns page for examples.

      (3) “There’s another hypothesis and that’s that those who love power will always figure out a way to suborn a democracy”

      Agreed. Every day of life is a struggle against entropy, a fight for life and freedom. Mother Nature does not give a damn.

      (4) “democracy is only present on earth in little fits and spurts that are quickly overcome as soon as the situation stabilizes long enough for the power-hungry and their authoritarian lackies to infiltrate and suborn.”

      That was then. History is a story of slow progresss, starting from the origin of society among people living short, harsh, and brutal lives.

      (5) “We did not lose our republic because we were stupid and lazy. Our republic was stolen from us by ruthless people whose love for power exceeds our ability to imagine. We didn’t sit on the couch and ignore what was happening”

      You don’t understand. Such people are omnipresent. Our job is to contain — and if necessary — defeat them. Every generation. Success is our greatest gift to our children.

      (6) “our forefathers and parents tried to build a stable system”

      Yes. Our job was to repeat their work. It’s not an inheritance to be enjoyed, but a task to be repeated.

      (7) “which would have probably worked just fine for a long time”

      Our Constitutional regime is a rulebook, not a machine that produces things for us without our effort.

      (8) “except that it was deliberately undermined and conquered from within, one little bit at a time, by those who seek to rule.”

      Yes, that’s what happens when we get lazy.

      (9) “It’s not rational to live with the constant fear that something that works just fine is going to be interfered with, to the detriment of almost everyone and the benefit of a small number.”

      Then accept life as a peon, your inheritance to your children. The forces of social entropy are as real as those of physical entropy.

      “And what country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.
      — Letter from Thomas Jefferson to William Stephens Smith, 13 November 1787

      “THESE are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated.”
      The Crisis No. I by Thomas Paine, published 23 December 1776)

    • Rune permalink
      7 April 2012 12:07 am

      yet, for all their apparent cleverness and ability, they are still herded, mark that, I have been saying herded, not led, to slaughter.

      This is pointless, you are obviously crazy about sheep and I understand a love of animals, but you let it cloud your mind in regards to this obvious analogy. It’s not important and you are arguing from an emotional base, so I shall not waste my time further.

    • 7 April 2012 12:50 am

      Rune,

      Quite the rebuttal. Overwhelming logic and evidence. QED.

  8. 8 April 2012 9:12 pm

    FM

    (a) My understanding is that what is new here is that a case got to the Supreme Court. This has been going on for a long time if not for just about forever.

    A prison has a duty to it’s guards, employees, and the prisoners for their safety. prisons hole at elast some individuals who are prone to violence and some wh if not normally prone to violence are extremely mad at the situation. As it was explained to me if thee is not a strip search and in many situtions a body cavity search the prison authorities cannot say they have reasonable confidence about the safety of the guards, employees, and especially the prisoners are safe.

    Explained that holding a prisoner in detention reasonable probable cause for a strip search.

    (b) When I was in the reserves we had a class on handling prisoners of war. The practical exercises was to devide the class in halves, one half leaving the room while the other half hid contraband and weapons about their person. The other half came back and searched them. One individual made a through search of his prisoner and almost went in to shock when he finished and the prisoner pulled out an (unladed) M1911 .45 automatic and said “boom’. Since strip searches are generally impracticable until the get to rear area holding facility, the lesson was no matter how well searched they are should always be assumed to be armed under direct observation.

    (c) I think the problem is that we are too inclined to insure presence at trial by detaining people in jail, which is the default if they can’t post cash bail. I think most would show up for trial if a large personal recognizance bond was the default. The only ones held would be those for whom where their was a reasonable probable cause to believe they were a danger, a flight risk, or charged with an especially serious crime, and cash bail would be ineffective.

    I think, since the prisoner’s presence at a trial for the original offence could have easily been secured with less sever methods than detention. But if he is going to be helad overnight a stip search of all prioners vastly improves the chance he won’t hurt or killed with a weapon some one else brought in.

    • 8 April 2012 11:20 pm

      Hank,

      Your comment deserves a more complete response than I have time to give, as it represents an excellent (logical, clear) statement of the consensus view of our situation as given by most authorities. I believe it to be false on several levels. Here is a sketch of reply.

      (1) “My understanding is that what is new here is that a case got to the Supreme Court.”
      Agreed. The significance of this: it probably sparks a massive incrase in use of strip and cavity searches, esp as a punative measure for protestors.

      (2) “This has been going on for a long time if not for just about forever.”
      Only if you believe that magnitudes don’t matter. Yes, on a small scale in exceptional cases. But not like today, and never before in non-tyrannies like we’ll see in the future.

      (3) “As it was explained to me if thee is not a strip search and in many situtions a body cavity search the prison authorities cannot say they have reasonable confidence about the safety of the guards, employees, and especially the prisoners are safe.”

      False. Prisons operated for centuries without these before in the US. And other developed nations get by without such measures. Even nations fighting actual insurgencies (eg, IRA, Red Brigade, Basques). Nor is there any evidence of rising dangers that justify these measures.

      (4) “Explained that holding a prisoner in detention reasonable probable cause for a strip search.”
      What are you attempting to say? It looks like a statement of the government’s assertion.

      (5) “When I was in the reserves we had a class on handling prisoners of war.”

      This goes to the heart of a terrifying trend: the militarization of law inforcement. Police increasingly view citizens as the enemy. Massive increase in firepower (which is of course met by increased firepower). SWAT teams deployed as instruments of terror (primary use: serving warrants, in effect as demonstrations of force). Now prisoners, before any determination of guilt, are POWs.

      (6) “I think the problem is that we are too inclined to insure presence at trial by detaining people in jail,”

      Agreed. Again, the evidence of our peers in other nations is quite clear.

      (7) “But if he is going to be helad overnight a stip search of all prioners vastly improves the chance he won’t hurt or killed with a weapon some one else brought in.”

      Can you cite any evidence for this? Or do we just accept every expansion of the government’s power, just because they say it’s necessary?

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