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Blanket Policies for Strip Searching Pretrial Detainees: An Interdisciplinary Argument for Reasonableness

40 Pages Posted: 3 Apr 2011 Last revised: 9 May 2011

Daphne Ha

Fordham University - Fordham Law Review

Date Written: April 2, 2011

Abstract

This Note explores a widening circuit split on the constitutionality of blanket strip search policies involving arrestees and pretrial detainees. As a result of the widening split, government officials across the country strip search detainees as a matter of routine procedure without any reasonable suspicion that the detainees have contraband. These detainees include individuals without criminal histories who are arrested for traffic or other minor offenses, and who have done nothing to suggest that they are attempting to smuggle contraband into corrections facilities.

This Note recognizes that an objective legal analysis can be informed by relevant social science findings, and relies on an interdisciplinary approach in analyzing the constitutionality of strip search policies. Research has consistently found that strip searches are invasive, humiliating, and traumatizing even when conducted professionally and according to protocol. At worst, strip search policies allow corrections officers to abuse their power and systematically perpetrate sexual violence toward detainees. Ultimately, this Note argues that blanket strip search policies are unconstitutional and courts must only uphold strip searches when there is an individualized reasonable suspicion that a detainee is concealing contraband.

Keywords: arrestee, jail, pretrial detainee, prison, strip search

JEL Classification: K00, K10, K40

Suggested Citation

Ha, Daphne, Blanket Policies for Strip Searching Pretrial Detainees: An Interdisciplinary Argument for Reasonableness (April 2, 2011). Fordham Law Review Vol. 79, No. 6, 2011. Available at SSRN: https://ssrn.com/abstract=1801305

Daphne Ha (Contact Author)

Fordham University - Fordham Law Review ( email )

140 West 62nd Street
New York, NY 10023

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