The recent Supreme Court decision of Florence v. County of Burlington (pdf) has been the subject of a lot of online outrage; mostly in the form of disbelief that the Supreme Court could believe that a strip search is Constitutionally permitted if it is conducted without regard to the crime of which the individual is suspected. On a superficial level, I get it. Hauled in for a speeding ticket and then some goon with a gun is telling you to move your testicles left or right? That can’t be right.
But, thinking about it and reading the case, I agree with the majority; the risk an individual poses to a jail population is not solely or even primarily a function of the crime with which he or she was charged. A falsely accused murderer is probably less of a danger than a never-accused murderer booked for check deception. I think the real question has to do with when and how jail should be used as a tool of the criminal justice system. But that question wasn’t anything under the control of the defendants in this case. The accused is brought to the jailer and the jailer is told to hold him. If there is a facially valid court order on the subject; that’s about the end of the jailer’s discretion. If these people are going to mix with the general population; then the same administrative procedures probably have to be applied to the low end offenders as the high end offenders. The distinction to be kept in mind is that the procedures themselves aren’t to punish the accused and the offenders in proportion to their crimes. They’re for jail administration.
Do people accused of minor crimes have a Constitutional right to be held in a jails or wings free of serious offenders? In all likelihood, this is good administrative policy; but I doubt it rises to a Constitutional right. That said, I don’t think it would be a bad idea for policy makers to keep this case in mind when they are evaluating the propriety of using jail as a tool in the criminal justice system for various purposes.