Volume 3 No. 1 January 2001       Marty Drapkin

Strip Searches of Jail Inmates

INTRODUCTION

Control of contraband is a major goal in every correctional facility. One of the most important methods for contraband control is searches of inmates. Such searches range from simple patdown searches, which are done in order to discover obvious and sizeable items such as weapons, to custodial (sometimes called "full") searches, in which an inmate takes off his or her clothing but does not remove underwear, to strip searches. These are usually defined as searches in which the inmate's genitals or buttocks, and/or the breasts of a female, are either exposed to view or touched by a person conducting the search. Strip searches typically involve visual inspection of an inmate's intimate body cavities (anus or vagina) for contraband, but they are not body cavity searches. Body cavity searches are generally considered to be searches involving digital (finger) and/or instrument intrusion into a person's anus or the vagina of a female.

All such searches may be done in jails and detention centers. From a legal liability perspective, the general guideline is that the more intrusive and potentially embarrassing a search is, the greater the level of legal protection to which inmates are entitled. To put it another way, jail officials are expected to provide a higher level of procedural restrictions and guidelines in regard to strip searches and body cavity searches than for patdown or custodial searches.

The legal basis for such protections is the 4^th Amendment to the U.S. Constitution. That Amendment protects all citizens against "unreasonable searches and seizures." When people are incarcerated in a jail or prison, they do not lose their constitutional rights. Thus, they retain the right to be free from "unreasonable" searches. The question is: what is an "unreasonable" search—particularly in regard to strip searches and body cavity searches, which are clearly the most intrusive and potentially-embarrassing categories of searches of inmates? There have been a number of lawsuits on that issue over the past years, mostly in federal courts, and the outcomes of such lawsuits have indicated several key guidelines for corrections officials to keep in mind when formulating policy and planning training. These may be summarized as follows:

1. Pre-sentenced detainees are entitled to a higher level of protection in regard to strip searches ands body cavity searches than sentenced inmates;
2. Strip searches—particularly of pre-sentenced inmates—can only be performed for good reasons, which are related to legitimate penological concerns. Jail officials must be able to articulate such justifications. If searches are not done for such reasons, that is when they are more likely to be deemed "unreasonable" searches;
3. Strip searches and body cavity searches must never be done just to harass or embarrass inmates. To do so would make them "unreasonable" and thus not legally justified;
4. When strip searches are done, they must be performed in a professional manner—respecting the human dignity and also the basic privacy expectations of inmates;
5. Body cavity searches should be performed by medical personnel, not correctional staff members.

Each of these guidelines is discussed in more detail.

As is true of any other area of jail operations, all of these issues must be discussed in written policies and procedures. The policies and procedures must be consistent with actual practices in the jail. Staff members must then be trained on the contents of the policies and procedures, and there must be good ongoing supervision to ensure that there has been adequate compliance with the policy provisions and requirements.

PROVISION OF HIGHER PROTECTION TO PRE-SENTENCED INMATES / JUSTIFICATION OF STRIP SEARCHES (DOING THEM ONLY FOR GOOD REASONS)

Courts have consistently held that jail officials must be much more careful about doing strip searches of pre-sentenced (sometimes known as "pre-trial") detainees than about doing such searches of sentenced inmates. Specifically, courts have indicated that there must be always be a good reason to do such searches of pre-sentenced detainees—a reason clearly related to security, order or control in the jail.

One such reason might be the offense for which the person was arrested. If the offense was a felony or a misdemeanor involving weapons or drugs, then jail officials might well be justified in assuming that the detainee could be concealing contraband or evidence of the offense, thus justifying a strip search. On the other hand, a strip search of a person arrested for a traffic offense alone—particularly a misdemeanor offense—would be more difficult to justify, because there is no clear reason to suspect that such a person would be concealing a weapon or evidence of their offense.

Thus, jail officials must have policies in place which specify that strip searches of pre-sentenced detainees can only be performed when there is good, justifiable reason to do so—either based on the nature of the offense, or on a correctional officer's or supervisor's reasonable suspicion or probable cause to believe that the detainee is hiding contraband. In that regard, information from an arresting or transporting officer or similar person can be taken into consideration.

A policy that indicates that all pre-sentenced people will be strip-searched, regardless of the reason for the arrest or other factors, would not be legally-justifiable.

Such cautions, however, do not necessarily apply to strip searches of sentenced inmates. Courts have held that such searches can be performed when deemed necessary, in accordance with the guidelines listed below.

NOT USING STRIP SEARCHES TO HARASS OR EMBARRASS INMATES

The only legally-justifiable reason to conduct strip searches and body cavity searches in a jail is to try to discover contraband items. To do such searches simply to harass inmates or to embarrass them is not okay, and could be considered to be "unreasonable" searches, from a legal perspective. This is true both in regard to pre-sentenced and sentenced inmates.

Often, of course, there is a difference of opinion between jail officials and inmates as to why strip searches are being done—with inmates claiming that they are being done to harass and jail staff asserting otherwise. That is understandable. The burden, however, is always on jail officials to prove that strip searches or body cavity searches were performed for legitimate penological, or correctional, reasons. If strip searches are done too often and/or under circumstances in which it is more difficult to justify them, that burden is made more difficult.

For example, if an inmate has been strip-searched when removed from a cell to be escorted to a medical visit or other place, and then strip searched again at the visit or upon return to his cell when it is clear that the inmate has been under constant visual surveillance to the extent that it would be impossible for him to have hidden any contraband, that might be hard to justify.

Similarly, if jail staff perform frequent strip searches of a particular inmate but not of other inmates who are in the same security classification, absent any clear reason to do so, that could be construed as harassment or discrimination.

There should always be good documentation as to the reasons for all strip searches.

PERFORMING STRIP SEARCHES IN A PROFESSIONAL MANNER

All strip searches and body cavity searches must be performed in a professional way. Remember that such searches are always potentially-embarrassing, and of course body cavity searches are intrusive. Thus, correctional staff members should be as sensitive and considerate as possible, under the circumstances, when performing such searches. It is totally unprofessional for staff members to ever make demeaning or derogatory or insulting comments or remarks to inmates during such searches.

All such searches should be done in a way that maximizes privacy, They should be done away from the view of other inmates or staff members, and should generally be done individually rather than in groups—although there are times when that is not always feasible, such as following critical incidents (riots or similar situations).

Strip searches or body cavity searches must never be videotaped.

In general, strip searches should be performed by staff members of the same gender as the person being searched. This is not an absolute constitutional requirement. However, it is good practice because it avoids embarrass-ment to inmates and it minimizes the chances of potential sexual harassment, or even sexual assault, allegations. If staff members of the opposite gender of an inmate perform a strip search, jail officials may have to justify why that was done. There must be a good reason, beyond mere convenience.

BODY CAVITY SEARCHES

As noted, body cavity searches are generally defined as searches in which there is digital (finger) and/or instrument intrusion into a person's anus or the vagina of a female. Whereas correctional staff members may conduct visual searches of an inmate's body cavity—that is, look into a body cavity to see if there is any visible contraband—they cannot reach into a person's anus or vagina to search for or remove contraband. If a body cavity search is necessary, it must be performed by medical personnel such as a physician, physician's assistant, nurse, and so on. Such professionals are trained to do such procedures properly.

Correctional officers should generally not be present during body cavity searches, so as to ensure inmate privacy. However, there are times when officers may be present, such as when an inmate is a security risk. Specifically, if the medical professional performing the search requests that an officer be present for safety or security reasons, that would be a good reason. In such case, the officer would not absolutely have to be a member of the same gender as the inmate being searched, but it would be a good idea.

ACCURATE DOCUMENTATION

There must be proper documentation of all strip searches and body cavity searches. Documentation should clearly indicate the name of the inmate searched, the name(s) of all staff members involved in the search, the reason(s) for doing the search, and the results of the search—that is, whether or not any contraband items were found. Additionally, if there is a provision for supervisory authorization of any strip search, that authorization must also be well-documented.

If medical personnel perform body cavity searches, there should be similar documentation of such searches.

Good documentation is always the best way for jail officials to defend their actions, in the event of a dispute or litigation. Remember that such litigation usually occurs a long time after the actual incident, so documentation is important to refresh the memory of involved staff members.

POLICIES AND PROCEDURES/ TRAINING

As noted, there must be thorough and accurate written policies and procedures in place governing strip searches and body cavity searches of inmates. Such policies should minimally cover all of the issues listed above. Policies and procedures must be comprehensive, and must be congruent with what actually happens in the jail in regard to searches.

All jail staff members must be familiar with the written policies and procedures, so that they will be able to follow them. There should be a plan in place to train staff members, not just on the contents of the policies but also on the specific skills involved. Training should include how to actually perform a strip search.

ACTION STEPS:

1. Does my jail have good written policies governing conducting of strip searches and body cavity searches of inmates?
2. Does written policy distinguish between strip searches conducted on pre-sentenced detainees and those conducted on sentenced inmates? Does policy make clear that there must be justification for strip searches done on pre-sentenced detainees, which is clearly related to security concerns?
3. Does written policy make clear that strip searches are never to be conducted as a means of harassing or exploiting inmates, but only as a way to discover contraband?
4. Does written policy require that strip searches are to be conducted in a professional, respectful manner and does policy specify the ways in which that is to be done? (Examples: doing searches in private, having them done by staff members of the same gender, etc.)
5. Does written policy define body cavity searches, and does policy indicate that body cavity searches (other than visual searches of body cavities) are only to be conducted by medical personnel?
6. Does policy require written documentation of all strip searches and body cavity searches, and does procedure specify what is to be included in documentation? (Examples: who was searched, when, by whom, why, and results of searches.)
7. Do the supervisory and/or administrative staff routinely review documentation regarding con-ducting of strip searches and body cavity searches, in order to ensure compliance with policy and to determine any need for further training or policy revision?
8. Are all staff members given copies of the policy on strip searches, and are they trained both as to the policy contents and as to the psychomotor skills involved in doing proper searches?
9. Is there effective and ongoing supervision to ensure that staff members are acting in accordance with policies and procedures governing strip searches and body cavity searches, and that policy requirements on this issue are being carried out properly and consistently?