“In 2012, the U.S. Supreme Court, in a 5-4 vote, decided Florence v. Board of Chosen Freeholders, #10-945, 132 S. Ct. 1510, 2012 U.S. Lexis 2712. It changed the landscape, abandoning a focus on the need for a detailed analysis of the presence or absence of reasonable suspicion to justify the carrying out of a strip search. For the Court’s majority, the focus shifted to a less murky dividing line, based on whether an incoming detainee, regardless of what they are charged with or whether there is reasonable suspicion concerning them, is about to enter the general population of the jail or other detention facility. This article examines the facts and reasoning of that decision in some detail, including both the majority and dissenting approaches. It will also try to briefly spell out what the Court’s decision did not decide, and some of the considerations that may enter into deciding the search policy for a facility in light of the new legal landscape on the subject” (p. 301). Sections of this article include: introduction; facts of the case; Florence majority ruling; dissenting opinion; remaining concerns; and some suggestions.
The issue of cross-gender pat searches is bound to impact a correctional agency. What is unique about this article is that it takes a detailed look at the conflict between the rights of inmates not to be subjected to pat frisks by a member of the opposite sex and the right of correctional staff not to be discriminated against in regards to their gender and opportunities for employment. This Note is divided into four parts that address: cross-gender pat searches and various prisoners’ rights—the First, Fourth, Eighth, and Fourteenth Amendments, Prison Rape Elimination Act (PREA), Religious Freedom Restoration Act (RFRA), and Religious Land Use and Institutionalized Persons Act (RLUIPA); Title VII and the of female corrections officers; comparing rights and whether one set takes precedence over the other; and solutions to the problem. “Ultimately, this Note argues that an inmate’s rights, including Constitutional rights under the Fourth and Eighth Amendments, take precedence, and therefore, cross-gender pat searches should only be performed during emergencies. There are solutions, however, that respect inmate rights while preserving employment opportunities for both male and female correctional staff. To the extent possible, these solutions must be pursued prior to implementation of a bona fide occupational qualification, thereby preserving the rights of both prisoners and corrections officers” (p. 572).
“Inmates and detainees retain a limited privacy right when detained in correctional settings, particularly in the context of cross-gender searches. Jurisdictions have approached the competing interests of privacy and cross-gender searches quite differently, finding liability for correctional officers, supervisors, and facilities under a variety of circumstances. These decisions are highly fact-sensitive, and the jurisprudence has evolved rapidly. This document provides an overview of cross-gender search cases in both state and federal courts, focusing on what types of conduct most often result in individual and supervisory liability.” Cases are organized into the 11 Circuits (with their corresponding states) and the D.C. Circuit. Citations are listed according to a successful inmate claim or a successful agency defense for female correctional staff/male inmate or male correctional staff/female inmate.
“Operational searches are essential to the safe and secure operation of a prison facility and are a primary method to detect and intercept weapons, drugs and other contraband detrimental to the order and security of the facility” (p. 1). This policy explains the process for searching inmates. Procedures cover: how to conduct complete searches; when to conduct complete searches; how conduct routine searches; body cavity searches; and complete shakedown searches of inmate’s quarters and effects.