Editor’s Note: Judith Resnik is the Arthur Liman Professor of Law at Yale Law School and, as an Andrew Carnegie Fellow, is writing a book, “Impermissible Punishments.” The views expressed here are hers. Read more opinion on CNN.
Felicity Huffman’s sentence of 14 days of prison time for participating in a college-admissions cheating scheme made international news. But the headlines about women prisoners we most need are about the degrading treatment of the nearly 110,000 women already in state and federal prisons, many of whose pleas for protection are being ignored.
A vivid example comes from a decision in July by a federal appellate court in Chicago. Asked to recognize that the Constitution protects women forced by prison officials to disrobe and reveal their inner parts to strangers as part of a “visual cavity search,” that court said no.
The case involved 200 women prisoners, rounded up by Illinois female prison staff who wore helmets and vests, banged batons on cells and yelled obscenities. These cadets marched the women into a large day room, sent groups of ten to a side area, and told them to strip.
According to the prisoners’ lawsuit, they had to “raise their breasts, lift their hair, turn around, bend over, spread their buttocks and vaginas, and cough.” Menstruating women were told to throw tampons away and were left bleeding. Male staff could see some of what transpired.
What we know now is that it was all just practice, a training exercise. No emergency existed that could have been used as an argument to defend such degradation.
Not only did this “training exercise” teach the wrong lesson to new staff, it was also terrorizing. Many women in prison endure physical, sexual and emotional abuse before they get there. This unnecessary humiliation turned them into victims once again.
And, as of now, the prison does not have to defend its terrible decision. The 2-1 decision by the federal court made a sweeping pronouncement: no prisoner has any rights to personal privacy – including if ordered to “touch her own body” in front of others.
Instead, to get any relief, the prisoners would have to argue that the strip searches were cruel and unusual punishment, a violation of the Eighth Amendment to the Constitution. To do so is herculean; they would have to prove that prison staff intended to inflict cruelty.
This initial appellate court decision is as legally stunning as it is disturbing. To focus only on the constitutional ban on cruel and unusual punishment is to miss that the Constitution also specifically protects personal privacy.
The Fourth Amendment promises us all insulation from “unreasonable searches and seizures.” The point is to stop the government from intruding into our private lives, bodies included. Many state laws do the same, including in Illinois, which instructs that aside from emergencies, prison staff should not do strip searches where other people can see.
Ripping up the Fourth Amendment’s personal privacy protections also makes no sense from prison officials’ point of view. Nine former directors of prison systems have joined the women prisoners in asking for a rehearing of their rejected lawsuit. The state of Illinois’s response to the request is due next week, and then the whole court will have to decide whether to open the courthouse doors or keep them closed.
As these experts told the judges, mass strip searches are contrary to “sound correctional practice” and serve no “legitimate purpose.” They explained that the American Correctional Association (the professional group accrediting prisons) has standards requiring that body cavity searches take place only when there is a reasonable belief that a person has contraband and then, in private.
More than 40 years ago, the US Supreme Court ruled that the Constitution does not “stop” at the prison’s gates. Since then, courts have protected prisoners’ rights to practice their religion, to be married, to have medical treatment and much else.
To be sure, the Supreme Court has also concluded that prisoners lose some Fourth Amendment protections: their personal property can be searched. However, the court has never licensed prison staff to do trainings by making prisoners stand naked and put their body parts on display before a random group of onlookers.
Across the country, the everyday mistreatment of women prisoners is coming into focus. In 2018, in its First Step Act, the US Congress mandated that the federal Bureau of Prisons give women free sanitary products and banned putting shackles on pregnant women. Yet this news is depressing as well as heartening. It took a new federal statute to get women the hygiene products that should have been provided all along, and to stop shackles that should never have been used.
Unnecessary invasions of women prisoners’ bodies have been documented across the country. In 2015, women held in western Massachusetts succeeded in getting a settlement against male prison guards who had videoed strip searches. Last summer, LA County Jail agreed to pay $53 million to hundreds of women who had endured strip searches there. Yet the county did not admit that what it had done was wrong.
As the Illinois case shows, that’s not enough. Courts need to put constitutional law to work on behalf of women prisoners.
The constitutional message cannot be: Prison officials can train their staff by making women (as the courts rejecting their claims described) “stand barefoot on a floor dirty with menstrual blood.”