It is now the law of the land that if you are arrested, even erroneously, for not having paid a traffic ticket, you may be strip-searched.
“I know it when I see it,” went another Supreme Court pronouncement of another era. Unable to define pornography, a justice simply said: “I know it when I see it.”
Here, too: Subject to careful definition or not, the virtually unrestricted legalization of strip searches screams, “Wrong!” How so? I know it when I see it: A strip search for an (erroneously accused) traffic offender is wrong. It is as obvious as pornography.
Not, however, that the Supreme Court’s legal reasoning is not riddled with holes large enough for the proverbial Mac Truck to breeze through.
But even before the arguments, consider the irony.
The highest court in the land reasons that the right to abortion resides in a “right to privacy” in the “penumbra” of the Constitution. We are not here to reargue the abortion issue, but how can the court consistently affirm one privacy right by summoning a “penumbra,” while unable to acknowledge a non-penumbra — a blatant, extreme, obvious, uncontested denial of another privacy right – a strip search?
We have here a court that goes to any length to locate a privacy right, yet allows a radical violation of privacy and personal liberty. The court allows the rights of the prison system to reign supreme. Doesn’t sound like America to us. Sounds more like a facist regime.
But, or so the court tells us, it is proven that sometimes the worst criminal is caught on the basis of the flimsiest offensive – such as a traffic fine. Don’t we know that Timothy McVeigh was caught because because of a license plate violation?
This example, supposedly a firm argument supporting the court’s legalization of strip searches for virtually anyone, actually supports the opposite argument. To our knowledge, McVeigh was not strip searched. Rather, he violated a minor law, and was caught. Upon investigation, his minor offense masked a major crime. The McVeigh example argues for the strict prosecution of the law, under which major criminal acts can be disclosed via minor violations. His case offers no support for virtually unlimited strip searches.
But even following the court’s logic through to the end, it fails. Even supposing that a strip search of a minor traffic violator can disclose a major drug trafficker, for example, the legalization of strip searches for virtually anyone dismantles our entire criminal justice system, under which punishment is proportional to the crime. From top to bottom — from the number of years of a prison sentence, to the length and conditions of parole, to the conditions of imprisonment, to the types of prisons – our judicial system is based on proportionality. That is why there are six-month sentences and lifetime sentences; why there is parole under which a released convict must check in regularly and under which a person must wear an ankle bracelet; why there is regular confinement and solitary confinement, and minimum security prisons and maximum security prisons. Strip-searches for traffic offenders erases proportionality, making a mockery of our entire judicial system.
If it can be argued that a traffic offender is possibly a drug dealer and therefore is allowed to be strip-searched, it is but a slim line to cross to argue that strip searches should become universal — that anyone, arrested for anything, any time, should be strip-searched. Why not? If the logic is that anyone can be a major criminal, even if his current behavior does not indicate any such thing, then strip searches should be universal.
This is where the logic of the court takes us. It is blatantly wrong, socially destructive, contemptuous of personal liberty and criminal justice alike. It is an evil harbinger. Congress must act, with either a law or a constitutional amendment, whatever is required to erase this horrendous Supreme Court decision facilitation of strip searches for virtually anyone.
Copyright © 2012 by the Intermountain Jewish News
