Florence v. Board: With Proactive Policing at Issue, Supreme Court Backs Discretion

With grading now finished for the semester, I’ve been catching up on some reading, including the Supreme Court’s April decision in Florence v. Board of Chosen Freeholders of County of Burlington. This is the decision in which the Court upheld the use of routine, suspicionless strip searches of individuals arrested and jailed for minor offenses.

It strikes me that part of what was really at issue in the case went unmentioned by both the majority and the dissent. The case is framed on both sides as being about corrections administration, but it is perhaps just as much about policing — how much discretion are we going to give police to detain citizens and impose on them the humiliation, stigma, and danger of incarceration with a general jail population.  This discretion seems a powerful tool in support of proactive, crime-preventive policing, but it is also prone to abuse and seems hard to reconcile with ideals like checks and balances and “innocent until proven guilty.”

Writing for the Florence majority, Justice Kennedy presented the case as a conventional prisoner rights case.


According to Kennedy, Florence was “governed” by Turner v. Safley, a seminal prisoner rights case, as well as Bell v. Wolfish, a case dealing with contact visits with pretrial detainees.  Turner established the basic intellectual framework that has been used  for deciding prisoner rights claims since 1987: in light of the extraordinary challenges of prison administration, corrections officials are free to infringe on prisoners’ constitutional rights as long as what they do is “reasonably related to legitimate penological interests.”  This is a very deferential test, and few prison regulations have failed it.

Whatever the wisdom of Turner, that case dealt with a fundamentally different inmate population than Florence.  While the Turner inmates had all been formally convicted of crimes and sentenced to prison, the Florence inmates had only been arrested and not yet convicted of anything.  In essence, the Florence inmates were being detained simply because a police officer decided that they should be.  The charges, moreover, were not serious, involving maximum sentences of 6 months or less.  Given these distinctions from Turner, one could imagine the Court using a less deferential test for the challenged policy and giving greater weight to the constitutional interests of the inmates.

The Court, however, seemed to see these as distinctions without a difference.

The Court also accepted without serious question the practice of incarcerating those who have been arrested for minor offenses and placing them in a general jail population, which would also contain individuals who are awaiting trial on much more serious charges or being held post-conviction.

The Court relied on Atwater v. Lago Vista, which upheld the jailing of an individual arrested for an offense so minor that incarceration was not a permissible sentence post-conviction.  But the Atwater arrestee was merely held for an hour alone in a jail cell, not introduced into a general jail population.  Whatever the merits of the Court’s holding in Atwater, it does not necessarily follow that longer-term incarceration in a general jail population should be regarded as consitutionally acceptable.  (Although Florence does suggest that the analysis might be different if there were available facilities for detainees apart from the general population, such availability seems to be something entirely within the state’s control, so it is not clear that there really are any meaningful limitations on the state’s ability to place minor-offense arrestees into a general jail population.)

Take these two questionable premises as a given — i.e., (1) that Turner deference governs and (2) that a lawful arrest means that incarceration in a general jail population is also lawful regardless of how minor the charges are — and the conclusion in Florence seems unavoidable.  As a theoretical matter, it is undeniable that any pretrial detainee, regardless of the charges, could endanger institutional security by smuggling contraband into the jail and that routine strip searches might prevent such smuggling.  And, under Turner, little more than such theoretical possibilities is required to uphold a prison regulation.  The Florence dissenters’ main arguments — that empirical studies indicate there is little benefit from routine, suspicionless strip searches and that such searches are opposed by the American Correctional Association and other authorities — are beside the point.

What if the case had come out the other way?  Playing out the counterfactual highlights the potential implications for proactive policing.  In essence, Florence would have put some practical constraints on the breadth of police discretion to jail under Atwater.

Arrests and detention of individuals for the commission of minor offenses is a cornerstone of modern proactive policing.

In part, this practice gets its justification from the “broken windows” theory of policing — under this theory, leaving minor offenses unpunished is believed to contribute to a more general breakdown of law and order and thereby to fuel the commission of more serious offenses.  However, since judges are unlikely to impose much beyond “time served” as a sentence for petty vandalism, minor traffic offenses, and the like, arrest and a short jail stay immediately thereafter are likely to be the only real punishment available for broken windows.

But Atwater contributes to proactive policing in other ways, too.  Arrest and detention on a minor offense can take gang members and others suspected of violent propensities out of circulation for a time.  Although that time should normally be brief, with a bail amount set within 48 hours, some arrestees may have a hard time coming up with even nominal bail payments.  Morever, in some situations, even a day or two may prove helpful in preventing violence that would otherwise be imminent.

Arrest means fingerprinting and collecting other information that may be used to good effect in future investigations involving more serious offenses.

Detention also provides opportunities for interrogation by police and the collection of information by jailhouse snitches.  In this regard, the humiliations and dangers of jail may usefully “soften up” the person arrested on a minor charge.

Indeed, just being able to deliver a credible threat of a night in jail may be quite helpful to police officers seeking to intimidate or obtain information from citizens.

A different holding in Florence would not have directly taken away anything that Atwater gave to the police.  However, it would have made jailing on minor offenses a more cumbersome process — and hence at least marginally less attractive to the state.  Arrestees would have to be individually screened to determine whether there was reasonable suspicion to conduct a strip search, rather than being subject to a general search policy.  In the absence of individualized suspicion, an arrestee might be introduced into the general population without a strip search, but (if the litigation representations in Florence were sincere) many jailers might be quite concerned with the smuggling risks, leading to the sort of very short-term, isolated detention that was used in Atwater itself.  One way or another, police would lose the benefits of a degrading search process.

Seen in this light, the actual holding in Florence lends further support to the sort of highly discretionary, proactive policing that Atwater implicitly embraced.

Quis custodiet ipsos custodes?