Judges as Jailers: the Dangerous Disconnect Between Courts and Corrections

JurisdictionUnited States,Federal
CitationVol. 45
Publication year2022



Christopher P. Keleher(fn*)


Picture a town inhabited only by convicts. The town's police force is unarmed, patrols on foot, and is outnumbered fifty to one. This is not the backdrop of a post-apocalyptic dystopian film. Rather, it is a correctional officer's daily reality. Correctional facilities house throngs of criminally prone, gang-affiliated individuals in close quarters. This setting has thus been described as "a world of violence,"(fn1) "a walled battlefield,"(fn2) and "Hobbesian."(fn3) It is this environment that correctional officers must pacify. If they fail, their lives, and those of fellow officers, inmates, and correctional staff are imperiled.

The already arduous task facing correctional officers is exacerbated by contraband. Contraband includes transparently troublesome things like drugs and weapons but also inherently innocuous items like paper clips and currency. Uncovering contraband during the correctional intake process is a task of sisyphean proportions because officers must be omniscient, whereas a smuggler need only be successful once. Additionally, the rewards for getting contraband into a jail are immediate and personal while the benefits of uncovering it are long term and abstract. Moreover, smugglers defy profiling. Some are forced-weaker individuals used as pawns. Some are ordered-gang members following instructions. Some are hooked-drug addicts. These dynamics, the deadly consequences of contraband, and the fact that the anal cavity is often used to smuggle, necessitate strip searches when arrestees enter a correctional facility.

If the realities of the correctional intake process are not problematic enough, legal challenges to strip searches have made it even harder to stop contraband. Lawsuits alleging constitutional violations have forced correctional officials to reduce the scope of intake searches or scrap them altogether. Such suits have revolved around the poles of privacy and security, and privacy has been winning thoroughly. While privacy is a worthwhile goal, three points must be remembered. First, the traditional notion of privacy is inapplicable in the correctional context. Second, correctional officials have a legal duty to protect inmates. Third, the unintended but certainly foreseeable consequence of elevating privacy is increased contraband. Courts continually fail to recognize the realities of contraband-who carries it, how they carry it, and why they carry it. Courts also evade the murders, rape, and drug abuse contraband spawns. Thus, the irony that elevating inmate privacy endangers inmate lives goes unnoticed.

Increased contraband is not the only consequence of finding strip searches unconstitutional. The financial impact of such lawsuits is staggering. Payouts stemming from jury verdicts and settlements include:

Cook County, IL

$55 million(fn4)

New York, NY

$50 million(fn5)

Seminole County, FL

$34.8 million(fn6)

Los Angeles County, CA

$27 million(fn7)

San Bernardino County, CA

$25.5 million(fn8)

Sacramento County, CA

$15 million(fn9)

Suffolk County, MA

$10 million(fn10)

Camden County, NJ

$7.5 million(fn11)

St. Croix, WI

$6.9 million(fn12)

Cook County, IL

$6.8 million(fn13)

Miami-Dade County, FL

$6.25 million(fn14)

Alameda County, CA

$6.15 million(fn15)

Bexar County, TX

$5.5 million(fn16)

Santa Cruz County, CA

$3.875 million(fn17)

Knox County, ME

$3 million(fn18)

New Haven, CT

$2.5 million(fn19)

Will County, IL

$2.15 million(fn20)

In a time of contracting municipal coffers, these sums are troubling. They dilute funding for education, healthcare, and law enforcement. And the economically disenfranchised who depend on social services suffer as lawyers pocket millions. If correctional search practices were barbaric, these multi-million dollar figures might be justified. But they are not. Instead, plaintiffs secure these awards thanks to a number of misconceptions, the most notable being that reasonable suspicion is needed for correctional searches. Since the 1980s, federal courts have repeatedly held that the Fourth Amendment to the United States Constitution forbids strip searching misdemeanant arrestees absent reasonable suspicion.(fn21) Yet in its 1979 decision of Bell v. Wolfish,(fn22) the United States Supreme Court held the exact opposite.(fn23) Deviating from Supreme Court precedent is troubling, especially when it is the basis for bankruptcy-flirting municipalities to dispense millions.

The premise of this Article is simple. Judges invalidate strip searches without understanding the underlying law or the consequences of their rulings. Worse, they ignore or distort Supreme Court precedent in the process. These are strong charges, but they can be proved. Part II of this Article outlines the neglected law, specifically, the Supreme Court's treatment of the Fourth Amendment in the correctional context.(fn24) Part II then examines how the circuit courts and district courts have handled correctional search policies.(fn25) These courts have misconstrued Supreme Court precedent, most notably Bell v. Wolfish, by mandating reasonable suspicion or a history of contraband for correctional strip searches.(fn26) However, the trend is changing as three recent decisions debunked the myth that Bell mandated reasonable suspicion.(fn27)

Correctional strip searching is a contentious issue given the equally worthy goals of privacy and security. As such, the state of the circuits is not a split but a chasm. The Supreme Court thus recently granted certiorari in Florence v. Board of Chosen Freeholders of Burlington. (fn28) Part III suggests that the Court in Florence confirm the propriety of correctional strip searches.(fn29) The Court should further reaffirm that while intrusive, strip searches save lives and correctional deference necessitates them.


The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures.(fn30) This right encompasses, to varying degrees, one's person, home, and vehicle.(fn31) However, the dynamics change when one is admitted to a correctional facility.(fn32) Traditional Fourth Amendment protections are anathema in the correctional context because "privacy is the thing most surely extinguished by a judgment committing someone to prison."(fn33) As the United States Supreme Court explained, "the prisoner's expectation of privacy always [must] yield to what must be considered the paramount interest in institutional security."(fn34)

A. The United States Supreme Court Disavows the Notion of Institutional Privacy

1. Bell v. Wolfish

Bell v. Wolfish (fn35) is the starting point of any correctional privacy discussion. A class action suit challenged numerous conditions of confinement at the Metropolitan Correctional Center ("MCC") in New York City.(fn36) The class averred deprivations of their statutory and constitutional rights based on overcrowding, length of confinement, improper searches, inadequate recreational opportunities, and restrictions on personal items.(fn37) The United States District Court for the Southern District of New York agreed, enjoining over twenty MCC practices on constitutional and statutory grounds.(fn38) The United States Court of Appeals for the Second Circuit largely affirmed the district court's decision, holding that under the Due Process Clause of the Fifth Amendment to the United States Constitution, arrestees may "be subjected to only those 'restrictions and privations which inhere in their confinement itself or which are justified by compelling necessities of jail administration.'"(fn39)

At the heart of Bell was MCC's strip search policy.(fn40) Everyone had to "expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution."(fn41) It was a blanket policy encompassing felons, misdemeanants, persons held in contempt, and even witness protection participants.(fn42) The district court prohibited the searches unless there was probable cause to believe the person had contraband.(fn43) Describing the searches, the district court noted that they were "calculated to trigger, in the officer and inmate respectively, feelings of sadism, terror, and incipient masochism that no one alive could have failed to predict."(fn44) Because contraband was found only once as a result of the policy, "[t]hese affronts, repulsive in the most evident respects," could not be justified.(fn45) Highlighting the dearth of contraband, the Second Circuit affirmed.(fn46) According to the Second Circuit, the "gross violation of personal privacy inherent in such a search cannot be outweighed by the government's security interest in maintaining a practice of so little actual utility."(fn47)

The United States Supreme Court reversed the Second Circuit's decision, holding that correctional officers could strip search without probable cause if done reasonably.(fn48) The Court assessed the reasonableness of each search by balancing "the need for the particular search against the invasion of personal rights that the search entails."(fn49) Specifically, the Court considered four factors: the scope...

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