On March 31, 2011, 200 women allege that they were marched from their rooms to an open gym. With no warning and no time to prepare, they were ordered to strip naked, forced to lift their breasts, and commanded to turn around, bend over, and present themselves to a visual body and cavity search, according to a federal complaint. Many of them were in open view of other women and men.
As the women stood naked, shoulder to shoulder with other women, people milling about began humiliating and mocking them: for their smells, for their bodies, for their nakedness, all believed to be fair game. Women who were menstruating were forced to remove their tampons and sanitation pads in public. They were forced to stand in their own blood.
Among the women who say they endured this public indignity were women of color, women from impoverished backgrounds, and women with histories of sexual and physical abuse. Whatever their stories, backgrounds, and lives, they shared one common life experience: each of these 200 women was a convicted felon serving time in a penitentiary in Illinois.
That fact convinced a divided panel of the 7th Circuit Court of Appeals in Henry v. Hulett in July 2019 that these women, held at Lincoln Correctional Center when the 2011 incident occurred, somehow had no privacy interests in their own bodies, in the most private parts of their bodies, when they were subjected to “merely” a visual inspection.
Take a moment to consider that, to imagine that.
Now, an en banc court, that is, all the judges of the 7th Circuit Court of Appeals, has agreed to reconsider this misguided decision. On May 14, the 7th Circuit, sitting en banc, heard oral argument in Hulett. It has now taken the case under advisement. To be sure, defendants deny some of these allegations. However, the panel, and now the en banc court, must accept as true the women’s allegations for purposes of this ruling.
In rendering its decision, the 7th Circuit must affirm two guiding principles: (1) all people have a reasonable expectation of privacy in their bodies, and (2) courts, not prison officials, must be the ultimate arbiters of treatment of prisoners.
Undoubtedly, incarceration requires the limitation of an individual’s constitutional rights. No one claims otherwise. However, courts insist that prison walls do not simply erase the Constitution. Yet, as our prison population has metastasized, judges have stepped away and allowed legislatures and prison institutions nearly unfettered discretion in dismantling even the appearance of those constitutional rights.
We in the United States are suffering from a mass incarceration crisis, an addiction to locking up and locking away millions of people in our jails and prisons. On any given day, our jails and prisons detain 2.3 million human beings—more per capita than any other country. The reasons behind mass incarceration are legion, ranging from an over-amped war on drugs that locks away nonviolent offenders to the harsh sentencing excesses of the 1980s and 1990s.
Courts, too, bear a responsibility for this crisis. In case after case, courts have turned a blind eye towards a growing prison population and their inhumane prison conditions. In doing so, they have abdicated their roles as enforcers of the Constitution.
The Supreme Court found no 8th Amendment violation—that is, no cruel and unusual punishment—for the imposition of a life sentence in a drug possession case. In so doing, it concluded that legislatures knew better than the courts about the limits of appropriate punishment. In a different case involving the rights of those in prison to maintain familial relationships, the Supreme Court concluded that it must accord substantial deference to prison officials in determining whether an entire prison could severely curtail visitation.
Courts have also determined that the rights of people in prison to be secure from unreasonable searches and seizures is severely hampered, even if not completely destroyed. It is this constitutional right at issue in Hulett: do individuals in prison have an expectation of privacy in their own bodies?
The Fourth Amendment protects from unreasonable searches and seizures, so long as an individual has an expectation of privacy that society recognizes as reasonable. The Supreme Court has held that prisoners have no reasonable expectation of privacy in their cells or with their possessions, and, therefore, no Fourth Amendment protection.
As to their persons, the Supreme Court has given wide latitude to prison officials, permitting private visual body cavity searches and private searches conducted where there was no suspicion of wrong-doing. In these cases, the Supreme Court once again deferred to the judgment of correctional officers.
In Hulett, the panel’s now-vacated decision concluded that women who were publicly viewed in a forced group strip search, but not physically touched, may not seek protection under the Fourth Amendment. Yet, again, the panel’s decision deferred to the prison officials, who insisted any expectation of privacy would be inconceivable in a prison setting.
No matter that corrections officers ordered groups of women to engage in forced public nudity: in view of one another and viewed by male and female officers who were not part of the search. No matter that this exercise in forced public nudity was just that: a training exercise for cadets. No matter that there was no emergency, no crisis, and no concern for safety that required this forced public nudity and degradation.
To be clear, the women in Hulett do not argue that all strip searches are unconstitutional. Nor do they claim that their expectation of privacy is absolute. They ask, instead, that the 7th Circuit affirm a fundamental principle: no matter who we are, where we live, or what our crimes, each of us expects that our bodies are private.
There is no magic line between a visual body cavity inspection and a physical body cavity inspection. And the en banc 7th Circuit should say so. And it should once again “discharge its duty to protect constitutional rights,” and resume its role as the enforcer of the Constitution.
Maria Hawilo is a Distinguished Professor of Law at Loyola University Chicago School of Law and a former public defender at the Public Defender Service, Washington D.C.