The True Horror of the 'Florence' Decision
“Apparently without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings.” So writes Supreme Court Justice Anthony Kennedy in the majority decision in Florence v. Board of Chosen Freeholders, which affirmed a jailer’s right to command just about anyone in police custody to submit to a strip-search. How redolent of the slave auction block was my first thought. And, then, in a different way, how evocative of the scene in Henry V in which Katherine of France recites some English words that the lady Alice has just taught her: d’hand, de fingres, de nails, d’arm, d’elbow, de nick, de sin, de foot, de coun.
The scene is comic—Shakespeare’s audience would have heard “foot” and “coun” as puns on “fuck” and “cunt”—and it is dark. Katherine is the daughter of the besieged French king, upon whose armies Henry is gaining. Should Henry win the war, or her father make a deal, Katherine will be part of the trade: her hand, fingers, nails, arm, elbow, neck, shin, foot and gown the English king’s possessions as surely as a piece of France.
Sex is not exempt from the pageant of state violence, Shakespeare is saying, as potent a presence in the chitter-chat of a lady’s bower as it is in Henry’s ultimatum to the townsfolk quaking at the gates of Harfleur. (The people submit, thereby sparing themselves and their children from Henry’s ghastly promises of rape and murder; Katherine weds.) Catapulting across the ages to our own time, sexual menace is so embedded in the American prison complex, in its elaborations of control and projections for public entertainment—on what other plane do rape jokes win the easy laugh?—that inevitably it must seep into the language of the law. And so it has. “Pornographic” is too pleasant a word to describe what animates the Court’s decision and the Obama administration’s supporting brief in the Florence case, a creepy fetishism that might make Larry Flynt blanch.
The petitioner in the case, Albert Florence, says he was stripped, humiliated, unmanned, after police in New Jersey stopped his car for a traffic violation and arrested him in the mistaken belief that he had failed to pay a fine. There was an outstanding warrant, inexplicably, and Florence spent seven days in jail. He did not challenge the state’s right to strip-search some detainees, just not him and those like him, people arrested for minor offenses who give jailers no probable cause to suspect violence or weapons or contraband.
Like the four liberals on the Court who took his side, Florence does not fully apprehend just what it takes to be the world’s biggest jailer. Justice Kennedy did honesty a favor in this sense. His opinion makes plain the amoeba-like nature of the violence system just below the surface of everyday life—always moving, always grasping, capable of engulfing anyone, and absorbing so many persons as to suspend personhood, making distinctions moot. In the transit from freedom to handcuffs to lockup, the individual vanishes. What remains is a body, really a collection of parts, notable only for what they may conceal.
As previously established by the Court, police can arrest a body for any infraction, driving without a seat belt, for instance. In practical terms that means more than 13 million bodies are jailed across the country each year following an arrest. Consider, Kennedy says, the difficulties those bodies pose for the officials in charge of them. The jailer can be certain of nothing, not even their identities. Demeanor can be no guide. Past acts can be no guide. The alleged crime can be no guide. Each body is potentially a breeding ground for lice, contagion, dangers unseen; a palimpsest for tattoos inviting violence; a drug mule; a repository for weapons or proto-weapons, “something as simple as an overlooked pen”; a secreter of “cash, cigarettes, or a penknife” with which “to survive in jail” but prone to deadly purpose.
“Correctional officials…must have substantial discretion to devise reasonable solutions to the problems they face.” Reasonably, they rely on things seen. “Strip-search” is an exaggerated characterization, Kennedy writes. The body is not physically stripped, merely instructed to shed its clothes, lift or expose its genitals and spread its buttocks; ordered to squat, to cough, to shake its head, open its mouth, raise its arms, display its instep, expose its ears. The official may inspect from a distance of, say, five feet, or perhaps from “a closer, more uncomfortable distance.” But the official does not touch. He does not intentionally humiliate. He does not single out. Petitioner Florence would have the jailer discriminate, but the jailer cannot.
He cannot, Kennedy doesn’t quite say, because nothing about his workplace is reasonable. It is insane—overcrowded, unsanitary, ruled by a code of all against all. Kennedy acknowledges those conditions, but the violence system is beyond question, so he, the Court, the jailer, can do no more than try to thwart human cunning. And here Kennedy gestures to Solicitor General Donald Verrilli’s brief, a phantasmagoria of rectums and double-edged daggers, jackknives, eight-inch scissors, more rectums, more knives, seven inches, three to five inches, vaginas, razor blades. Not since Ken Starr’s report have the footnotes of a government document made for such salacious reading:
man arrested on drug charges found with golf-ball-sized bag of crack cocaine in his rectum… woman booked into jail on a warrant “filled two condoms with methadone, tied them, hid them inside her vagina, and used electrical tape to keep them from falling out”… man smuggled marijuana into jail in his rectum… man placed 20 bags of heroin in his rectum… man arrested for marijuana possession found with a small white bag containing cocaine and marijuana in his rectum… inmate hospitalized after trying to smuggle a knife into jail inside his body… “some inmates cut pockets inside their mouths” in order to smuggle razor blades… inmate hid red-and-silver “flip-style” cellular phone in his rectum… “and not only that, but with a charger”… man arrested on probation violation found with methadone, Oxycodone, and Xanax in a bag in his rectum… woman arrested for driving with a suspended license died shortly after her arrival at jail due to a drug overdose from pills she had concealed in a body cavity… crack pipe found in body cavity of man pulled over for failure to wear a seat belt… man booked into a county jail on misdemeanor disorderly conduct charge was found with a cigarette lighter, rolling papers, a golf-ball-sized bag of tobacco, a bottle of tattoo ink, eight tattoo needles, an inch-long smoking pipe, and a bag of marijuana all concealed in his rectum… man arrested for selling bootlegged CDs was found concealing a nine-millimeter handgun between rolls of fat.
And people say American ingenuity is dead.
Outraged by his colleagues’ reliance on a plethora of examples ripped from the headlines, Justice Stephen Breyer wrote for the minority, “No one here has offered any reason, example, or empirical evidence” for intrusive searches in the absence of reasonable suspicion. A good liberal argument, but it misses the point. Once a country accommodates itself to 13 million annual detentions following arrest—and 2.3 million imprisoned convicts, and 48 million poor people—it is all just horror in, horror out.
In the seven years since Albert Florence was pulled over on a traffic stop, arrested, strip-searched, locked up and moved by the experience to file suit, stripping for pleasure, meanwhile, has been increasingly constrained. States and municipalities from Missouri to Oregon, from Bridgeport to Memphis to Seattle, have decided that the live nude sex showplace is an evil so large it ought to be banned, restricted, run out of town, drowned in bright lights, deprived of alcohol, burdened with extra permits and fees, extra clothes, “opaque” clothes, enforced distances between dancers and patrons (six feet generally, more than the five or less that Kennedy noted in lockup). This is for the dancers’ own good, naturally, as the community’s sense of values soars and the dancers’ tips tumble.
Although joining the majority in the Florence decision, Chief Justice John Roberts felt compelled to write a concurring opinion, highlighting that the Court “does not foreclose the possibility of an exception to the rule it announces,” this being necessary “to ensure that we ‘not embarrass the future.’” It is a bit late for that. We are beyond embarrassment.