We Cannot Afford to Protect the Anuses of the Condemned

The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Strip searches are invasions of your privacy. If there is one part of you that you have a right to keep private, under normal circumstances, it is your "private parts." The question, then, is when and how and why you might (permanently or temporarily) lose that right. At what point does your normal and reasonable right to privacy and security from search go away? What would justify that?

Yesterday, as the Washington Post put it, the Supreme Court "upholds jail strip searches, including for minor offenses"; as the New York Times wrote "Supreme Court Ruling Allows Strip-Searches for Any Arrest"; and as the AP headlines it: "People arrested on minor charges can be strip searched, Supreme Court rules."

Justice Kennedy wrote: "the seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption."

And I'm interested in these headlines because the words "offenses," "arrests," and "charges" are all ways of demarcating the moment the state judges a person to be in custody without saying anything in particular about the reason why. The fact of being in custody becomes the only important fact, to which all others are subordinate. This is the logic of the decision, but its also the logic that the headlines obey, flattening all possible juridical categories into a single one: the condemned.

After all, to be arrested or charged with an offense is not to be guilty of it, and there are also a broad range of ways to be taken into custody without having committed any kind of crime that would warrant a significant sacrifice of rights. You would think this would be important. In the case that the Supremes were actually deciding, for example, the arrested party had been wrongly arrested, and no one contested that; the police had screwed up their paperwork and mistakenly believed that he hadn't paid a fine, when in fact he had. When he was repeatedly strip searched for this (non)offense, he protested the fact that, having done nothing to warrant it, he nevertheless was forced to endure an invasion of his bodily security. His rights were violated without due process. And as Justice Breyer noted, there is no shortage of examples of "other instances in which individuals arrested for minor offenses have been subjected to the humiliations of a visual strip search":

They include a nun, a Sister of Divine Providence for 50 years, who was arrested for trespassing during an antiwar demonstration...They include women who were strip-searched during periods of lactation or menstruation...They include victims of sexual violence...They include individuals detained for such infractions as driving with a noisy muffler, driving with an inoperable headlight, failing to use a turn signal, or riding a bicycle without an audible bell...They include persons who perhaps should never have been placed in the general jail population in the first place."

So the first thing to say is this: the decision accepts the proposition that the rights you have -- that the state must obey -- don't need to wait for some juridical process to determine that you've forfeited them, that your actions or your situation require a suspension of your default status as rights-bearing citizen. The burden of proof on the police or correctional officers is lifted: instead of needing to justify why the urgency of the search necessitates putting aside a normal presumption of rights, the default is "abandon all rights ye who enter here." And so, a more accurate headline would be: "Supreme Court rules that all people in jail be treated as criminals." The baseline presumption is to be, across the board, that the asses of all inmates are property of the state.

But the second thing to note is that the reason given is that this will be more "workable." This pair of sentences, for example, tells you most of what you need to know:

Petitioner’s proposal?that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband?is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption.

Bernard Harcourt: "The Court embraced today a “police-state logic.” It is a logic that seeks to eliminate, to absolutely eradicate and purge any and all security risks, no matter how small they might be. It demands total suppression and erasure of risk. The police-state logic is about identifying, describing, cataloguing any and all possible security risks, no matter how trivial, and then effectively giving the state security apparatus free rein to adopt the most penetrating strategy to obliterate that risk...The police-state logic ferrets out these potential risks and then turns over to the police state full power to radically eradicate the danger—no matter how small. It is a logic that is diametrically opposed to what has dominated constitutional analysis to date, namely a “political-state logic” that balances security risks against privacy interests, liberty, and other political values, in this case especially political anti-discrimination values."

Total control over the bodies of all prisoners is of paramount importance; to sacrifice any aspect of that, any access to any nooks and crannies those prisoners may possess, for any reason, is "unworkable." And that's it. That's the end of the story: "be reasonable," we are told, "security from invasive searches would be nice, but it's just not possible to do in practice."

Raise the Crime Rate: "As sites of governmental authority, prisons destabilize Weber’s definition of the state as the monopolist of violence. In prisons, the monopoly is suspended: anybody is free to commit rape and be reasonably assured that no state official will notice or care (barring those instances when the management knowingly encourages rape, unleashing favored inmates on troublemakers as a strategy for administrative control). The prison staff is above the law; the prison inmates, below it. Far from embodying the model of Bentham/Foucault’s panopticon— that is, one of total surveillance—America’s prisons are its blind spots, places where complaints cannot be heard and abuses cannot be seen. Though important symbols of bureaucratic authority, they are spaces that lie beyond our system of bureaucratic oversight. As far as the outside world is concerned, every American prison functions as a black site."

If we put aside the fact that US prisons are already hives of contraband -- that super-overcrowding in correctional facilities has meant that actual practical surveillance of incarcerated populations is effectively nil -- the logic of this argument simply asserts that unwarranted invasions of privacy are a lesser evil than impracticality. But why do we presume that these two things are incompatible? Why must we have one or the other? Where does that necessity to choose come from?

This is why we probably shouldn't put aside the fact that our prison system is overcrowded and underfunded to an outrageous degree. Because when the Supremes start talking about what is and isn't workable, what they're really saying is: we can't afford to provide the kinds of rights which the bill of rights promises. To say that it wouldn't be workable to treat citizens in custody as still having the rights that no court has yet ruled to strip away -- that "it would be difficult to determine whether individual detainees fall within the proposed exemption" is simply to say that the work of observing constitutional rights, spending the time and money to see that it is done properly, is beyond our powers as a society. It is too difficult. There are, obviously, ways to make prisons more "secure" which do not involve putting a hand in your anus, and if the Supremes mandated that they find them, they would. It's just that, given the massive overcrowding of our prisons (and the underfunding which flows out of that overcrowding), a hand in the anus is the cheapest way to do it.

Or so goes the logic; as Breyer pointed out, there is almost no evidence that strip searching everyone actually provides any meaningful "security." But my point is the logic, the mind-set of the people who wrote the decision: when the court refuses to second guess or regulate the extent to which police can probe the bodies of citizens that the police have condemned -- in Kennedy's words "courts are in no position to second-guess the judgments of correctional officials" -- what is happening, pretty explicitly, is the judgement that protecting liberty is too expensive. And this logic is what I think we should be truly concerned about, the ways that a right disappears not because of some crazy theory of "executive authority," but simply because it is judged to be more economical to put a gloved hand in your anus than to build enough prisons to compartmentalize inmates by their appropriate juridical status. If your rights can become forfeit because of your behavior -- if we accept the basic logic of criminology that certain actions cast you out of the normal bounds of rights-based citizenship -- then the shifting line that distinguishes when and how and why your behavior causes that transformation is important to watch. But at least as important is the force that moves it, the fact that Kennedy and company are explicitly pegging that line to the economic necessities of penal institutions, of what is judged -- by the penal institutions themselves -- to be "workable."