Strip searches of prisoners are humiliating, degrading, and dehumanizing.
At any time, a guard can order a prisoner to remove all of their clothing, show the inside of their mouths and ears, run their fingers through their hair, show the bottoms of their feet, and pull their buttocks apart to show the officer their anus. Men are required to lift their testicles and penis and roll back their foreskin. Women are required to lift their breasts and expose their vulva. This is all supposed to be in the name of searching for contraband. But strip searches are often used by guards to demonstrate that they have power over prisoners rather than for legitimate security purposes.
Despite the apparent potential for abuse, the federal courts have historically taken a hands-off approach to prison strip searches. To challenge a strip search, a prisoner had to prove that the guard intended to inflict harm and had no legitimate security rationale. Since guards were typically able to hypothesize some security-related reason for a strip search, no matter how thin, federal courts rarely found strip searches improper.
Last month, all of that changed with the Seventh Circuit Court of Appeals decision in Henry v. Hulett. The facts in Henry were extreme: On March 31, 2011, officials at Lincoln Correctional Center, performed a mass strip search. Officers dressed in riot gear stormed into housing units, ordered the women to line up, marched them into the gym, and forced them to face the wall standing shoulder to shoulder. Some of the women suffered seizures from this stress. Others soiled themselves.
Then, the women were escorted in groups to be strip-searched. In addition to the usual strip search humiliations, women on their menstrual cycles were ordered to remove their tampons and pads and were not allowed to do so in private. The floor became soiled with blood from the women on their menstrual cycles, and they were not given new tampons or pads to use when getting dressed.
While all of the other women were being strip-searched, blood continued to flow down menstruating prisoners’ legs and onto the floor, and prisoners had to stand barefoot in other people’s blood. All the while, guards yelled obscenities at them, calling them dirty, smelly, and bloody.
It turned out that this entire horrifying episode was simply a training exercise for new guards. The prisoners who suffered this traumatizing invasion of privacy were randomly chosen to help teach new officers how to “properly” conduct strip searches.
In Henry v. Hulett, the entire Seventh Circuit Court, sitting en banc (meaning all 12 judges participated, though typically appeals are heard by a panel of 3 judges), held that the events described by the women prisoners violated their right to privacy.
Previously, prisoners had only been able to challenge strip searches using the Eighth Amendment—which prohibits “cruel and unusual punishment.” The Eighth Amendment claim focuses on the guards’ subjective intent to determine if they intended to inflict harm, rather than acting for a proper security purpose.
But with Henry, the court held that prisoners could also challenge strip searches under the Fourth Amendment, which prohibits unreasonable searches and seizures. Under the Fourth Amendment, the focus shifts from the guard’s subjective intent to an objective test of whether the guards’ conduct was reasonable. Thus, after Henry, a guard could still be held liable if his actions were unreasonable, regardless of his intentions.
Henry’s shift from a focus on guards’ intent to an objective reasonableness standard will hopefully deter some abuse of the strip search process.
However, no one should be under the delusion that Henry spells the end of humiliating strip searches—they will continue to be a part of everyday life for Illinois prisoners. The court was careful to note that it was not outlawing all strip searches. To the contrary, the judges went out of their way to reassure prison officials that their claims that strip searches are necessary to maintain order will continue to be given great weight by the courts. Only time will tell whether Henry will help curb this abusive, humiliating procedure in Illinois prisons.
Alan Mills is the executive director of the Uptown People’s Law Center.