Though the Heavens Fall, Let Them Be Strip Searched
By Robert Folsom
Most of us have watched it happen hundreds of times on TV and in the movies: “You are under arrest.” As any fan of Law & Order knows, each episode includes those words.
What most of us have NOT done is watch it happen to ourselves. But people who have been through the experience are quick to remind the rest of us that fantasy has little to do with reality. I’ve been told that fear is the most lasting impression.
About six weeks ago, the U.S. Supreme Court issued a ruling which ensures that the experience of arrest will now often include a memorable dose of humiliation. In a 5-to-4 vote, the court ruled that
“…officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband.”
To be clear on what “any offense” means, Justice Steven Breyer’s dissent cited the strip search of a nun “who was arrested for trespassing during an antiwar demonstration.” He also described the strip search of individuals arrested “for such infractions as driving with a noisy muffler, driving with an inoperable headlight… or riding a bicycle without an audible bell.”
This ruling gives jail officials free rein to do likewise.
I realize that some of what follows may suggest that I am taking a position on strip searches. For the record, my opinion is unimportant. What matters is to understand just how exceptional this ruling is, and to provide an explanation that makes it understandable. Socionomics makes this possible.
Think for a moment about how many procedural hoops law enforcement officials must jump through to make an arrest. Police can’t act on hunches. They typically must establish “probable cause.” Yet even then they can’t enter a home or residence until a magistrate issues a search warrant. The officer who makes an arrest must inform a suspect that he or she has the right to remain silent (etc.). After the arrest comes habeas corpus, meaning authorities have a day or two to appear in open court and show they had sufficient evidence for the arrest — otherwise the judge will release the suspect.
Now, every step of this process is a limit on the government, backed by Supreme Court precedents. Every step also includes great risks. Countless criminals have gone free for the lack of probable cause, or during the wait for a search warrant, or when a cop failed to give a Miranda warning, or when the evidence did not satisfy habeas corpus.
The courts, the police, the politicians and we the people all understand this risk in some way. And we live with it. Most of us see this as the trade-off we make on behalf of the presumption of innocence. The still-deeper trade off is, “Let justice be done though the heavens fall.”
Contrast all of the above with the court’s strip-search ruling. It is indiscriminate, gives all benefit of the doubt to the government, and is unwilling to accept any risk in order to protect the dignity of individuals who are presumed innocent.
Specifically, the court’s logic is to reject the premise that there are too many “false positives“. Justice Anthony Kennedy wrote for the majority, saying “People detained for minor offenses can turn out to be the most devious and dangerous criminals” — and then cited the traffic stops of Timothy McVeigh and the September 11 bombers.
What to make of this ruling from the Supreme Court? Why would the judicial branch — which has done so much to limit government and protect individual rights — give so much indiscriminate authority to the state? More importantly, why now?
Put simply, “authority” is the key idea. Our studies show that when social mood is in decline, governments typically expand their power — even the functions which otherwise resist the expansion of authority. The logic of pre-crime overcomes the presumption of innocence.
At the same time, powerful social forces seek to take back authority the state already has. The polarity between the sides escalates. This is not a trend you want to read about “later” — it’s one to stay ahead of. No publication is better equipped to that end than The Socionomist. Follow this link to learn how to subscribe.
Andrea Dibben contributed research.