“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.