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October 12, 2011

Dangerousness and dignity dicta could make SCOTUS work in Florence of sentencing interest

I have not been following the jail strip-search case before the Supreme Court too closely, in part because it is a Fourth Amendment case and in part because I lack the time to follow everything closely. But this early SCOTUSblog report on today's oral argument in Florence v. Board of Chosen Freeholders leads me now to the suggest that sentencing fans keep a close eye out for this forthcoming opinion.  First, here are parts of the helpdul SCOTUSblog report from Lyle Denniston: 

One thing, and only one thing, emerged clearly after a busy — and often confusing — hour of Supreme Court argument Wednesday on the constitutionality of strip-searches in local jails: the outcome is not going to be a categorical rule, one way or the other.  None of the three lawyers argued for that, and nowhere near a majority of the Justices seemed prepared to rule flatly for or flatly against strip-searching of arrested individuals.   But where five Justices might draw the line was entirely unpredictable after the hearing on Florence v. Board of Chosen Freeholders (docket 10-945).

What might turn out to be decisive is that the Justices discovered — to the surprise of some of them — that there was so little evidence that smuggling weapons or drugs into jails or prisons was actually a serious, documented problem. Several members of the Court pressed for “empirical evidence” of actual experience, but got in response only surmises, suggestions that it was fantasy not to appreciate that jails are by nature very dangerous places.

Although there were some comments from the bench — especially from Chief Justice John G. Roberts, Jr. — that not much was in dispute, it seemed obvious that the case involves anything but trivial differences of opinion. The Justices were deeply concerned about protecting the security of jails, but also were highly skeptical of an “anything goes” policy that would force every newly arrested individual to disrobe and have their bodies inspected, up close and perhaps with some manual manipulation. The members of the Court searched — at times in vain — for some guidance on just what potential threats to individual “dignity” were too much to be constitutionally forbidden....

The Court had real difficulty, for example, as the Justices tried to nail down just what Washington lawyer Thomas C. Goldstein was proposing as a Fourth Amendment standard to govern strip-searching.... Goldstein’s approach, indeed, allowed his principal adversary, Washington lawyer Carter G. Phillips, to begin his portion of the argument by saying that Goldstein’s argument moved around so much that it was not exactly clear what his constitutional claim was. But, as matters were to unfold, Phillips, too, wandered at times from his core argument that the Fourth Amendment should simply have nothing to do with the procedures used in jails upon the receipt of new arrestees. He conceded to Justice Sonia Sotomayor, for example, that there is “some constitutional right of privacy” in the jail setting, and conceded that manual inspection of body cavities would invade that right unless there were some strong evidence of a threat to justify it.

Justice Antonin Scalia somewhat sarcastically said that what Phillips seemed to be advocating was a Supreme Court ruling that was limited to the validity of “squatting and coughing” inspections, and nothing more.  Scalia was the Court’s most vigorous champion of jail security, and thus its least skeptical about strip-searching as a routine jail-entry policy.

The most aggressive defense of strip-searching, without any notable limits, came from a Justice Department lawyer, speaking for the federal government. Nicole A. Saharasky, an assistant to the U.S. Solicitor General, resorted to sometimes fanciful conjecture about how even individuals arrested for the most petty crimes — including political protesters — might actually be lurking conspirators to get guns, knives and drugs into jails or prisons. Her strongly emotional argument was notably short on hard evidence to prove her point.

Though I want to read the full transcript myself before calling Florence a "sentencing sleeper," this report on the oral argument leads me to think we could get multiple opinions from a splintered Court in Florence and that important sentencing-related concepts like dangerousness and dignity may be discussed at some lengthy in these opinions.  If nothing else, the Florence case may give us a helpful (and perhaps surprising?) window on the newer Justices' views on what should be considered constitutionally permissible in the name of jail security.

UPDATE:  The oral argument transcript in Florence is now available at this link.

October 12, 2011 at 12:47 PM | Permalink

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Comments

As I have argued repeatedly, all legal remedies are procedures upon the body. The lawyer is still in the 19th Century age of unproven quackery across the board. A fine takes away the value of labor, for example.

All legal procedures should be banned until proven safe and effective and their unintended consequences tolerable, prior to being foisted on the public.

Posted by: Supremacy Claus | Oct 12, 2011 6:50:52 PM

I tried to read the transcript but had to stop. It was reminiscent of Debate Day in educable mental retardation class. With all its powers, why can't the Supreme Court summon a warden. Demand numbers on the fraction of prisoners with contraband in their butts, and how many injuries have been prevented with this procedure. Call someone with a fact or two. If anyone wants to see how mentally retarded people think, read this transcript.

Posted by: Supremacy Claus | Oct 13, 2011 8:30:35 PM

lol same reason they refuse to get real mumbers of new sex crimes from those on the registry. Would take one of the cray supercomputers under langley like 20 mins to pull the names of everyone placed on the registry in 1994 and fast forward to NOW and know EXACTLY how many have been convicted of a NEW REAL SEX CRIME...not the bullshit charges that a lot of studies count now!

as for why they won't. THEIR ENTIRE house of lies would go BOOM! as it collapsed....just like here.

if real records showed 90% of inmates do their time with no problems and new crimes in prison....we wouldn't need so many prison guards!

Posted by: rodsmith | Oct 13, 2011 11:38:43 PM

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