I don’t know what charges Charles E. Byrd faced, but whatever they were were enough to put him behind bars as a pre-trial detainee in the Maricopa County jail (a facility that has spawned more than its share of threads here).
While he was housed there, jail officials decided to do a thorough search of the housing bloc Byrd was in, apparently in response to several earlier inmate fights and some suspicion of the presence of contraband. Inmates were searched by cadets from the detention officer training academy, with supervisors from the jail present.
Byrd’s assigned cadet was female, one Kathleen O’Connell. According to testimony, her search included the following technique:
According to jail policy, male inmates may generally be frisk searched by either male or female officers, but female inmates will only be searched by female officers.
Byrd complains of this policy, and of the search generally. His complaint took the form of a lawsuit against the cadet, the supervisor, and the sheriff. The appeals court panel that just considered the issue found that because the search was intrusive and conducted by a female on a male, it was unreasonable.
I’m curious if readers believe this is the proper result. And assuming that it is, what implications it has for the employment rights of female guards. The jail population is overwhelmingly male; if female guards cannot perform this function, there are not going to be many spots for female guards to work.
Well I don’t think a search of that nature is/was invasive, but since their policy is that male guards cannot search female inmates I see no reason the reverse shouldn’t also be true. I’d also note that I think once you’ve gone to prison you lose your right to pick the sex of the guard that searches you regardless of your sex.
I don’t see how your conclusion follows from your premise; are you saying there are not enough male guards to perform all of the male searches? Or are you saying that female guards won’t have enough to do if they can’t search males? Neither seems plausible.
Interesting question. My first thought is that, of course, male inmates should enjoy the same protection from searches that may be (or appear to be) pretexts for inappropriate contact as female inmates.
However, to play the devil’s advocate: I wonder if the interests involved for men are entirely the same as those for women. A female inmate will very often be smaller and weaker than a male guard. Male inmates, however, will tend to be somewhat larger and stronger than female guards. This might reduce (though not eliminate) the danger of abusive strip-searches conducted by female guards upon male inmates.
That said, I don’t find this line of reasoning terribly persuasive. Nor am I greatly moved by the argument that preventing female guards from strip-searching male inmates will bar many of them from the profession. I’m not entirely convinced this is true (there are female prisoners, after all, and non-strip-search-related functions for guards to carry out), and this doesn’t seem a strong enough basis to subject male inmates to searches that they may genuinely find unnecessarily embarassing. Our culture associates genital contact by members of the opposite sex with a sexual context - I know prisoners love to make up gripes, but being strip-searched by a member of the opposite sex is something that many, many people would likely find far more objectionable than that same search conducted by a member of their own sex.
That’s why, for example, the TSA scrupulously insists on same-sex screeners for the Security Gropes. And department-store changing rooms are monitored by same-sex personel. And so on.
The major issue I see here is that Byrd wasn’t a criminal yet. Until he is tried and convicted, he is innocent and should possess all the rights he should. Therefore he shouldn’t have been searched at all, unless there was probable cause. If he was a convict it would be totally different, of course. Whether the guard doing the searching was male or female is irrelevant, IMO.
Of course, while I don’t believe prisons should generally be able to enact policies that protect only women (and not men) from opposite-sex strip searches, this particular case is interesting because it sounds like there was also an exigency issue involved.
Bricker, could you post a link to the decision? I’m curious regarding the type of contraband that the prison officials were looking for. If they were searching for, say, shivs (or is it shanks?), then the prison’s interest in the safety of the correctional institution was probably heightened. I’d also be curious about the timeframe - if a bunch of very serious fights all took place on one Very Bad Day, the prison’s interest in clamping down fast might be greater than if there’s just been a few more fights in the past, say, week than might have been expected otherwise.
And of course, it might be that the prison didn’t have any particular reason to believe there was an uptick in the presence of dangerous contraband (maybe the earlier fights were just fistfights), and the contraband search was an ordinary search for things like drugs, pornography, etc. Harder to see the exigency in that case.
I also do not care for this reasoning, which is basically that a male inmate would presumably be more able to defend himself against inappropriate behavior from a femail guard. A tricky situation would eventually boil down to male inmate’s word against female guard’s. Are these searches performed such that there is only one guard present?
I think male prisoners should get the same rights as female prisoners.
This wasn’t even an issue. Although not convicted, he was still detained in jail, and, as such, he was properly subject to reasonable searches by the jail staff. The search wasn’t a “punishment”, it was an attempt to keep contraband out of the jail, which overcomes the right to privacy of the inmate regardless of whether he was convicted or not yet.
I’ll note that, according to the little I read, it was very important to the court that there were male detention officers available to conduct the search. I think that, had it been an emergency search or if male officers were not available, the court may have found differently. This seems to be a very fact specific case (so much so the dissent relied, in part, on the fact that the jury found "O’Connell did not “intentionally squeez[e] or knead [Byrd’s] penis or scrotum or improperly touch his anus through his underwear,”), so I’m unsure how big an impact it will have overall.
There are differant categories of search, from ‘pat down’ to ‘rub down’ to strip search. Beyond that you have to get medical supervision. Personal searches are often accompanied with metal detector and mobile phone detectors. Many prisons also have detector chairs with very sensitive detection facilities built into them, and should a prisoner be deemed to be concealing something then they may be held in isolation until decisions about where to proceed have been taken. Also, added to all this are the use of drug dogs, and in some places there are electronic ‘noses’ for specific compounds, though these are not as versatile as dogs.There are also indicator wipes tha can reveal traces of various families of substances.
Don’t forget that urine and blood samples are also a form of searching too.
Females can do pat down searches, but cannot be compelled to do rubdowns - there was an employment tribunal which ruled that to compel females to search men, and males vice versa was unreasonable contract.
What you can do is order a prisoner to turn out their pockets and bags, open their mouths for inspection.
This would violate certain parts of the EU human rights act, such as the rights to cultural and religious freedoms, and these cannot be set aside for the purposes of incarceration.
A prisoner cannot consent to give these rights up, they are non-negotiable.
Although these are UK rules, the procedures in US prisons are likley to be very close.
What TriPolar said. However, if a male inmate doesn’t consent to a female searcher, and female inmates are accorded that right, he absolutely should have it.
ETA: I don’t think employment opportunity is an issue here. What portion of a prison guard’s job requires searching prisoners? An insignificant one, I bet. Paging Little Nemo.
As casdave already pointed out, what Bricker described is not a strip search (or a strip frisk which is different). It was a pat frisk.
Female officers can conduct pat frisks of male prisoners (except for Muslims). Male officers cannot conduct pat frisks of female prisoners. (These are the general rules - there are exceptions in cases involving emergencies and probable causes and such.) Neither sex can conduct a strip search or strip frisk of a prisoner of the other sex.
I wouldn’t call it insignificant. Searches happen a lot.
I distinctly remember having read an article in the NYT about this issue, but about two decades ago, so it may be obsolete by this time. In the decision being reported on then, the courts explicitly made a distinction between men and women. Basically they said men being nude in front of women was no big deal but the opposite was a very big deal so the distinction is reasonable.
Which raises the question, why should Muslim prisoners be singled out and given special privacy rights that are denied to Christian, Atheist, or Jewish prisoners?
The solution is obvious, women need to commit more crimes to provide corrections jobs for other women. :rolleyes:
That’s still the case in our society. Men & boys aren’t conditioned to feel threated or vunerable by females the way women & girls are by males. Take the medical community for example. Female doctors/nurses/other practitioners rarely require a male chaperon when examining or bathing male patients while it’s often required for the reverse.
My mother works for a home health agency; they have alot of clients that request female aids/nurses/etc, but none who specifically request male personel. If somebody did it could be problematic since they have only a handfull of male aids or nurses. They’ve even had older male clients refuse help from male staff and insist on female staff. Granted these tend to be clients that had so many harassment comlaints against them that the agency has specifically decided to only male staff to their houses.