Transcript: SCOTUS oral argument of Nichole Saharsky on jail strip searches
Albert W. Florence v. Board of Chosen Freeholders of the County of Burlington, et al
Supreme Court Oral argument of Nichole A. Saharsky on behalf of the United States, as amicus curiae supporting the respondents, on Wednesday, October 12, 2011:
MS. SAHARSKY: Mr. Chief Justice, and may it please the Court:
The searches at issue in Bell are very similar to the searches at issue in this case, and they should be upheld. I want to start with Justice Kagan’s question. It is true that contact visits in Bell are different from a person coming into the — to the jail for the first time in that there might be a greater opportunity for planning, but as one of the Justices pointed out, there was less of an opportunity to actually get contraband, the person coming in was going to be searched, the inmate, as Justice Marshall pointed out, was wearing a one-piece zip-up jumper, and he’s being watched the entire time.
The visit — the contraband situation in this case at intake, the person does have an opportunity, even if they are not self-reporting, knowing that they’re going to be arrested. Protesters, for example, who decide deliberately to get arrested.
They might be stopped by the police, they see the squad car behind them. They might have a gun or contraband in their car and think, hey, I’m going to put that on my person; I just need to get it somewhere that’s not going to be found during a pat-down search. And then potentially they have the contraband with them.
Also, the process of going from the arrest — point of arrest to the general jail population is not a quick one. The person typically goes, for example, to a metropolitan police department — that’s what happens here — and the person would mix potentially there in a holding cell with other offenders.
If this Court, for example, adopted a rule saying that minor offenders would not be searched in a way that other offenders would, I have no doubt that there are some offenders in those circumstances, all on the bus together to go to the general jail population, who would give the stuff to the minor offenders -
JUSTICE GINSBURG: Then how does that -
MS. SAHARSKY: — to try to get them to bring it in.
JUSTICE GINSBURG: That’s not the Federal rule. And, by the way, the brief was really confusing. When what — when I read page 1, page 1 tells me that the BOP policy requires all incoming pretrial detainees to be subject to visual body cavity inspections. And then it isn’t until page 30 that I learn there is an exception for the very category of arrestee that we’re talking about here, that they are not subject to body cavity inspections unless there’s reasonable suspicion that they’re concealing contraband. That the misdemeanor or civil contempt offender is not subject.
MS. SAHARSKY: I’m sorry if that was confusing. The Bureau of Prisons’ policy is that a person will not be put in the general population, being allowed to mix with other offenders, unless he or she has undergone the strip search.
JUSTICE GINSBURG: Yes, but I want to know how people in this category are treated in the Federal system. And you — you -
MS. SAHARSKY: The people -
JUSTICE GINSBURG: You reversed it. They - those people are not subject to this visual body cavity search.
MS. SAHARSKY: Those people, when they go into the jail, would be asked whether they’re willing to consent to this type of search. In most cases, they do consent. If they don’t consent and there is not reasonable suspicion, then they are not placed in the general jail population; they are kept separate from the other offenders. So, it is the case, the rule that the Third Circuit identified, which is a blanket policy that anyone that’s going to go into the general jail population and mix with everyone else has to be strip searched. That is the Federal Bureau of Prisons’ policy. I should note that -
CHIEF JUSTICE ROBERTS: I’m sorry. I’m sure I missed something. You say when they go in they’re asked: Will you consent to a more intrusive body cavity search and be put into the general population; or if you don’t, you don’t have to be searched and we put you in some place else. Who consents to that?
MS. SAHARSKY: Well, the general jail population has certain facilities, you know, computer facilities and others that you don’t get when you’re in a cell by yourselves. As a practical matter, this arises very, very infrequently in the Federal system. We’re talking about fewer than 1 percent of offenders.
And the question before the Court at this point really is you have before you a blanket policy saying we need to strip search everyone, and is that something that’s unreasonable or irrational in the way that the Court has considered its normal deference to prison officials? And I just — I would like to -
JUSTICE KENNEDY: I understand most of the general propositions that your side is advancing, but I have to say I was somewhat surprised at the evidence of the amount of contraband that was discovered, the amount of weapons that was discovered that’s in the literature and that’s in the citations, of course, was somewhat skimpy. I thought there would be a stronger showing than I — than I found in the briefs.
MS. SAHARSKY: Well, there — there are not empirical studies of this type of information. Typically it arises when there are incidents at a facility, and incident reports are written up. They’re not published regularly. There’s not some kind of laboratory study that you can do. The facilities have an incident that they try to deal with. Sometimes it makes the news. Those are some of the things that we reported. And I would hate for the Court to think that there is not evidence of people who’ve committed - minor offenders in the record bringing in very serious things into prisons and jails.
I’d point you to footnote 15 in the Government’s brief, which talks about people being arrested for traffic offenses and smuggling crack pipes in body cavities. I’d point the Court to both experts in this case cited by Mr. Phillips. I’d point the Court to the record in Bull, the San Francisco case.
JUSTICE SOTOMAYOR: The issue has to be certainly some misdemeanor. Some people charged with misdemeanor crimes will try to smuggle things in. The issue is how many of them would not have been found on a
reasonable suspicion standard? I think Justice Breyersaid, in the San Francisco study, it appears only one.
MS. SAHARSKY: I think that that’s a very hazardous thing for courts to do with 20/20 hindsight. You know, the Court could look back at individual offenders and might have information -
JUSTICE SOTOMAYOR: But we don’t have 20/20. We have how many years? Fifteen years since Bell -
MS. SAHARSKY: What I -
JUSTICE SOTOMAYOR: — where prisons have been applying the reasonable suspicion standard. And the most you can muster under that standard is one example of a case where someone has entered? At some point, empirical evidence has to mean something in terms of us judging the question of reasonableness.
MS. SAHARSKY: I agree with you, but what I’m saying is that the individuals who are doing the searches at issue have very limited information about people. This is when you have people who are coming into the first — the system for the first time. They have had the most contact with the outside world. You have the least amount of information about them. In the Federal system, you don’t know -
JUSTICE SOTOMAYOR: Well, I — I do have a question about that today. I know that when — it’s bad to base your judgments on your own personal experiences. When I was a prosecutor, it took sometimes days to get a rap sheet. I understand that that’s no longer the case today, that they’re virtually almost always accessible by computers today.
MS. SAHARSKY: That may be true, but it’s not the information that the people who do intake and are doing the searches have. They do not have that information at their fingertips in the Federal system. They have name, date of birth, and they have the offense that the person was charged with. They don’t know anything else.
And the question before the Court, if I may, is whether there are reasons for a blanket rule that this Court should defer to. And I would say there are several.
First of all you cannot say that there are some minor offenders that don’t pose a contraband risk. They are documented in the record. Second, you have individuals who are making very quick determinations.
They’re — they have large numbers of people to — to get through — into the general prison population. They have very little time, and if they guess wrong, those mistakes can be deadly. Third, the rule needs to be -
JUSTICE ALITO: Suppose we accept the Petitioner’s concession that it is permissible to require everybody who is arrested to disrobe and shower under the observation of the corrections officer from a certain distance. Now the question would become: How many people who do that will still be able to smuggle in contraband?
MS. SAHARSKY: Well, there would be contraband found in — that would be in body cavities. And we have documented in this record and other records in our brief that there are folks who do that, and that contraband is not found until they do these squat and cough procedures.
JUSTICE BREYER: That’s my — that’s my problem. I don’t — I overstated the — the strength of your evidence. I was just trying to throw it out — or I understated it. San Francisco’s point is really that 30 to 60 percent or some very high percentage of people who come in for minor crimes are high on drugs or have been — and there is just that footnote really which has a few examples. Definitely, they’re there in this category. So, would it be helpful if you included in
the excluded part people who are high on drugs? You see? So, we give you the high on drugs people. It’s the drug offense, and those who are high on drugs and those — I mean, is there a way of drawing this rule that we can even catch most of the people in footnote 50 -
MS. SAHARSKY: I think the fundamental question for the Court is who is supposed to be doing this line drawing. And you’ve said case after case after case that you’re going to defer to the prison and jail officials who are seeing this stuff on the ground day to day.
JUSTICE BREYER: But it’s obvious that the simplest thing for any prison official is say do it for everybody.
MS. SAHARSKY: That’s -
JUSTICE BREYER: And so, the fact they do it for everybody and don’t try to make some exclusion for traffic violators or something might be consistent with little or no evidence; it might be consistent with some. That’s why I keep looking for it.
MS. SAHARSKY: There are many good reasons, though, to have a policy to do it for everyone. It is easily — easy to administer when you have lots of people. It is done for the protection of people like Petitioner who don’t want to be knifed in the shower -
JUSTICE GINSBURG: What is the reason? If there’s so much sense to that policy, why isn’t it the Federal policy? Before you said because there aren’t that many offenders. If there were more, then would there be — would the Federal policy change so that even people who are in on a contempt charge or a minor crime -
MS. SAHARSKY: Yes. The Federal Government thinks that that blanket policy is a good one. It made one modification to its policy in 2003 when the weight of the circuits was against it. But, again, this is a policy that is done for everyone’s protection. A point that Justice Kennedy made earlier is that there -
JUSTICE GINSBURG: I’m sorry, I didn’t understand. You think the Feds think it’s a good policy to inspect everyone?
MS. SAHARSKY: Yes, to inspect everyone who would be put in the general jail population. That is the Third Circuit’s holding, and that’s what we’re defending in this case. That’s — because when you have a rule that treats everyone the same, you don’t have folks that are singled out. You don’t have any security gaps. We urge you to affirm the judgment of the court below.
CHIEF JUSTICE ROBERTS: Thank you, counsel.
- WhatTheFolly.com: Transcript: SCOTUS oral argument of Thomas Goldstein on jail strip searches
- WhatTheFolly.com: Transcript: SCOTUS oral argument of Carter Phillips on jail strip searches
- SupremeCourt.gov: Opinion on Florence v. Board of Chosen Freeholders of County of Burlington et al (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for petitioner (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for respondents – Board of Chosen Freeholders of County of Burlington (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – brief for respondents – Essex County Correctional Facility and Essex County Sheriff’s Department (PDF)
- SupremeCourt.gov: Florence v. Board of Chosen Freeholders of County of Burlington et al – reply brief for petitioner (PDF)