Friday, April 15, 2011
Daphne Ha has posted Blanket Policies for Strip Searching Pretrial Detainees: An Interdisciplinary Argument for Reasonableness (Fordham Law Review Vol. 79, No. 6, 2011) on SSRN. Here is the abstract:
This Note explores a widening circuit split on the constitutionality of blanket strip search policies involving arrestees and pretrial detainees. As a result of the widening split, government officials across the country strip search detainees as a matter of routine procedure without any reasonable suspicion that the detainees have contraband. These detainees include individuals without criminal histories who are arrested for traffic or other minor offenses, and who have done nothing to suggest that they are attempting to smuggle contraband into corrections facilities.
This Note recognizes that an objective legal analysis can be informed by relevant social science findings, and relies on an interdisciplinary approach in analyzing the constitutionality of strip search policies. Research has consistently found that strip searches are invasive, humiliating, and traumatizing even when conducted professionally and according to protocol. At worst, strip search policies allow corrections officers to abuse their power and systematically perpetrate sexual violence toward detainees. Ultimately, this Note argues that blanket strip search policies are unconstitutional and courts must only uphold strip searches when there is an individualized reasonable suspicion that a detainee is concealing contraband.