an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today’s Supreme Court decision on strip searches is alarming. I commented earlier that the decision reflects “the kind of logic that can turn a democracy into a police state.” Let me quickly flesh this out because I don’t believe I’m being hyperbolic.
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. Justice Kennedy’s opinion reads precisely in this vein, and reflects this logic. Listen to Kennedy marshalling the evidence:
Experience shows that people arrested for minor offenses have tried to smuggle prohibited items into jail, sometimes by using their rectal cavities or genitals for the concealment. They may have some of the same incentives as a serious criminal to hide contraband. A detainee might risk carrying cash, cigarettes, or a penknife to survive in jail. Others may make a quick decision to hide unlawful substances to avoid getting in more trouble at the time of their arrest. This record has concrete exam¬ples. Officers at the Atlantic County Correctional Facility, for example, discovered that a man arrested for driving under the influence had “2 dime bags of weed, 1 pack of rolling papers, 20 matches, and 5 sleeping pills” taped under his scrotum. (Kennedy, p. 14-15)
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. The disproportionate arrest of African-Americans in the United States is extremely alarming in light of today’s decision (as the very facts of this case demonstrate).
Now, of course, Kennedy is right that these security risks exist. There are (extremely rare) cases of arrestees carrying contraband (drugs) on or in their bodies. It occurs in extremely few cases, but it does happen. One recent study of 75,000 new inmates over a five years period found 16 instances where a full body search revealed contraband. (As Breyer explains, “The record further showed that 13 of these 16 pieces of contraband would have been detected in a patdown or a search of shoes and outer-clothing. In the three instances in which contra¬band was found on the detainee’s body or in a body cavity, there was a drug or felony history that would have justified a strip search on individualized reasonable suspicion,” Breyer’s dissent at page 8. Truth is, we do not know if there are any such cases where there was no prior reasonable suspicion that the person was carrying contraband, but let’s put that aside).
I’m fully prepared to assume, with Kennedy, that there will be such cases. But the question is, do we then embrace a “police-state logic” and give the jailors the license to strip search everyone? Do we close off constitutionalism because of the very existence of a security risk, no matter how small? Or do we engage in some kind of political balancing of those security risks against other political values?
Notice that Kennedy’s police-state logic would allow for full cavity searches as well. Kennedy reports: “A person booked on a misdemeanor charge of disorderly conduct in Washington State managed to hide a lighter, tobacco, tattoo needles, and other prohibited items in his rectal cavity. San Francisco officials have discovered contraband hidden in body cavities of people arrested for trespassing, public nuisance, and shoplifting.” (15). On the police-state logic, there is no reason not to engage in full cavity searches of all arrestees—not just strip searches (just to remind you, a “strip search” only includes delousing showers, having to lift your genitals, and being forced to squat-and-cough while someone is peering up your rectum or vagina; it does not (yet) include touching).
The civil liberties lawyers had proposed a constitutional rule requiring reasonable suspicion that the person arrested might be carrying contraband before allowing a strip search—a rule that at least 10 states have enacted. Requiring some showing of suspicion (before handing over these extreme powers to the state) is what I would call a “political-state logic,” one that takes into consideration the political values that we share (and contest, naturally, everyday) in this country. It recognizes the security risk, but tries to impose some limits on the police state.
It’s alarming that the Supreme Court has veered toward this new police-state logic. Notice, of course, the difference—or paradox—with last week’s Supreme Court arguments about economic liberty and the health care mandate. The American ideal of a hands-off government seems to apply only in the context of economic liberty.