Searing but laid down by court

Washington, Dec. 18: Diplomat Devyani Khobragade’s strip search, which has caused consternation in India, is a post-arrest procedure that is sanctioned in the US by its highest court.

One-and-a-half years ago, after the controversial, often humiliating, practice was challenged at various levels of the American justice system, the matter had reached the US Supreme Court, which pronounced its final decision on those legal challenges.

“Every detainee who will be admitted to the general (incarcerated) population may be required to undergo a close visual inspection while undressed,” Justice Anthony Kennedy wrote for the majority of five judges on the bench.

In a dissent note for the minority of four judges, Justice Stephen Breyer described strip searches as “a serious affront to human dignity and to individual privacy”.

Expressing views that would find an echo in India after its deputy consul-general in New York was a victim of strip search following her arrest, these four dissenting justices had opined that such intrusive procedures should be used only when there was good reason to do so.

Justice Breyer interpreted the Fourth Amendment to the American Constitution against unreasonable searches as prohibiting strip searches of those detained for minor offences not involving drugs or violence. In instances where there was reason to suspect that detainees were carrying contraband, the minority was also in favour of intrusive searches.

The US has the biggest prison population in the world: 13 million. The majority of Supreme Court judges argued that officials with detainees in their custody had to ensure that people who are arrested or sentenced do not smuggle weapons or drugs into facilities where they are held.

In America, which has a large homeless population, admission to homeless shelters is preceded by a strip search and a bath for reasons of public health and hygiene.

In such facilities and in many detention centres, those brought in like Khobragade are asked to hand over their clothing and have a bath in order to make the stripping appear less intrusive.

The case that elevated strip search to the highest court of the land had shades of the Indian diplomat’s treatment. In 2005, Albert Florence was travelling in New Jersey in the passenger seat of a BMW when the police flagged down his car for speeding.

A dispute ensued with police citing a pending arrest warrant for Florence even as he insisted that he had paid a fine which triggered the warrant. In the end it turned out that the fine had, indeed, been paid by the accused. Florence spent the next week in two jails where he was strip-searched twice.

According to the detainee’s account of the search, he was shorn of all clothes and made to turn around, squat, cough and spread the cheeks of his buttocks while an officer watched. “It was humiliating,” he later said of the experience.

Even though the Supreme Court approved of strip searches in minor offences like speeding, riding a bicycle without a bell or driving without a licence, the issue continues to be controversial in America. In at least 10 states, intrusive searches are banned by law unless there is sufficient justification to warrant it.

New York, where the Indian diplomat was arrested, is not one of those states. There, strip searches take place after prisoners are visited by outsiders in jails or detention centres. During anti-Iraq war demonstrations, a nun was strip-searched for crossing a police barricade to block the demonstrators although she was not a protester.

Such searches may, however, be counterproductive. Justice Breyer cited a study of 23,000 detainees in Orange County, New York, where only one case of contraband was detected during intrusive searches.

Illinois is one of the states that prohibit strip-searches unless there is reasonable justification to warrant one. Its law details what constitutes a strip search. “Strip search means having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection…,” according to its statute.

In New York, DNA samples are also routinely taken after an arrest and fed into a law enforcement database. This would have been done in the case of the Indian diplomat.

The protocol of the US Marshals Service, which strip-searched Khobragade, states that officers must visually inspect the front of the body all the way down. It requires the prisoner to “spread legs and bend forward at the waist” so as to enable observation from the rear.