Here’s a therapeutic exercise for you: Whenever you think the current crop of imbeciles occupying the wood paneled offices of Congress are so impossibly inane they threaten the life of the nation, pull out a really good history book and look at what preceded them. The catch here is finding a good history book—start by avoiding any book ever handed out in a public high school. My own favorite is The American Past by Roger Butterfield, but Amazon is loaded with other options; really anything by Howard Zinn will do.
When you see the vitriol our predecessors poured on each other, when you see what passed for intelligent discourse before our time, and when you consider these people managed to reproduce and to bring forth the next generation, well, there is hope yet.
On the other hand, you may run across a example which causes you to despair, and to wonder why we cannot do what Americans of nineteenth century managed in a much more rancorous time. I just read the transcripts of some of the Lincoln-Douglas debates. The first thing which struck me was that Lincoln spoke for a few pages and then remarked he knows he has only 10 minutes allotted him so he will get to the point.
Can you imagine a debate between Rick Perry and Barack Obama where each spoke for 10 minutes, posing questions for the other to answer, asserting his own truths and rebutting the arguments of the other? Well, let me put it this way, can you imagine Rick Perry trying to talk for 10 minutes continuously, without a script?
Oh, the horror.
But I digress. What I am talking about is form and function. The form of these debates was designed not for an audience of Americans afflicted with attention deficit disorders; this was not stuff for listeners with the attention span and immediate retentive powers of fleas, but for the newspapers, which printed the text in full and these papers were read, I imagine, around pot belly stoves at general stores in New Hampshire, by groups of citizens, one reading aloud to the others who puffed on their corn cob pipes and either nodded in agreement or leapt to their feet to object.
Lincoln was struggling with the problem of an opposing group which simply could not see the evil in what they did: The slave owner did not see that he had harmed or demeaned or degraded another human being. He thought he had not robbed another man of his dignity, but the white slave owner looked at that cringing black man and thought himself a hero of sorts: The slave owner had clothed that Negro, had provided an overseer to protect the slaves from one another, for surely they would, like a pack of dogs, fall to fighting among themselves. The slave owner provided for his slaves, protected them and cared for his property as any sensible man would take good care of his carriage or his roof and his well.
Now allow me to turn to the Supreme Court. Stay with me now, eventually there is a thread here.
Yesterday, a transcript of the argument before the court in the Case of Florence vs. Board of Chosen Freeholders [Don’t you love that name?] of the County of Burlington was released.
Now, I understand, I am ignorant of the workings of the court. I infer written briefs have been submitted to the justices, who presumably actually read those written arguments prior to the oral presentation, so what we see in these pages does not, I dearly hope, represent the complete thought process of the court.
On the other hand, the exchange, which runs over sixty pages in my hands, is illuminating. First, the lawyer for the petitioner is grilled, then the lawyer for the respondents and then some guy who is a friend of the court, unfortunately from the Obama administration,arguing for strip searches, a profoundly disappointing thing.
The justices pepper the lawyers with questions. The lawyers never get a chance to complete a sentence before the judge who asked the question cuts him off, or some other justice cuts him off to ask a new question. Justice Thomas remains silent and his name never appears in the pages, but you know he’s probably there, although, now having seen the circus, I can see why he might not want to be riding a pony in this particular show.
For 59 of 60 odd pages of back and forth, mostly forth, because as I said the lawyers rarely get a word in and it’s not entirely clear any of the justices is really listening, although some do pick up on a trail of argument with which to skewer the unfortunate lawyer, for roughly 59 pages arguments rage about how the justices can be expected to come up with a rule for policemen and jailers all over the country to follow in the wide variety of setting which constitute county jails and other forms of lock up which are the first responders to the incarceration of citizens dragged in off the street by policemen who have arrested them.
Well over 50 pages are spent with questions about whether it is less of an indignity for such prisoners to be stripped searched if all prisoners have to undergo a strip search or if only some of the prisoners are strip searched.
Justice Kennedy, the swing voter [Because we already know how Scalia, Thomas, Alito and Roberts are going to vote. Has any of these guys ever voted against the jailers?] remarks:
“So it seems to me that your rule imperils individual dignity in a way that the blanket rule does not.”
By which he means, if the rule is only some people get strip searched as opposed to everyone (the blanket rule) then the person being strip searched has his dignity imperiled, but if the guy getting strip searched is told “Well everyone has to do this,” well, his dignity is intact.
Justice Kennedy will have to explain this further when the court considers the case of the girl who was raped when she walked into the fraternity house and she was told not to feel her dignity had been compromised because every girl walking into a fraternity house gets raped.
For some time,reading along, I imagined the way this must be done is every time a new prisoner is brought in all the other prisoners are sitting in an amphitheater waiting to see how the strip search show is going to unfold. And if some prisoners are not strip searched all those prisoners who were strip searched would jump up and exclaim they had been treated unfairly and their dignity had been imperiled.
So the justices go back and forth about whether a rule should be made to strip search a prisoner only if there is a "reasonable suspicion" he has a weapon hidden in his rectum or if the rule is everyone is strip searched, good reason or not.
One other thing which becomes clear: The justices imply they are just as worried that what is hidden in all those rectums of men and women pulled off the street for running a red light or for speeding or for not paying their parking tickets, what is in all those unexplored rectums and vaginas may be not just weapons, but “Contraband.” And what contraband? Once or twice the word “drugs” is mentioned. So what concerns the justices, what justifies the probing of orifices is the prospect some teenager who had a packet of marijuana in his pocket has stuffed that packet up his rectum as he sees the policeman approaching and once in the city jail, that teenager will ten sell that drug inside the prison sowing disorder among the prisoners.
Now let us consider what sort of weapons that teenager might have stuffed up his rectum or her vagina. Now this is an anatomically challenging proposition. Outside of Circ De Soleil, I cannot imagine anyone getting an AK-47 into a body cavity, at least not a loaded AK-47. I think we can be fairly safe we are not talking about a loaded pistol either. So what are we down to? A knife. Not just any knife, because an open blade…well, let’s just imagine a switchblade or pocket folding knife. That could work.
So we are protecting the jailers and the other prisoners from boy scout and Swiss Army knifes.
There is much allusion to the burden on the jailers if they have to think about who to strip search or if they have to make a judgment, rather than just strip searching everyone. There is no discussion about the burden on the individual being strip searched.
This all brings to mind those pictures of naked prisoner at the Abu Gharib prison. And George W. Bush goes on TV and looks the American people in the camera and he says, “This is not who we are.”
And now I’m thinking, well, apparently, yes it is. We strip our prisoners naked. And then we argue about whether or not we should do this to everyone or just to some of them.
Of course, as far as I know, Mr. Florence, who was strip searched once, then allowed to dress then strip searched again, Mr. Florence did not have to play Let’s build a pyramid. He just had to squat down in front of a jailer, grasp his scrotum and cough. (The justices call this move the "genital lift," sort of like the high crotch move in wrestling only done to yourself.)
But his dignity was not imperiled because, well everybody had to do that.
This goes back to the Lincoln-Douglass debates: We are faced with people who simply cannot see that stripping another person naked, a person you have in your power, is not wrongful. The Justices, the jailers, the police, how different are they from the slave owner who thinks he is not wronging his slaves? As Lincoln said, "As I would not be a slave, so I would not be a slave master." Why? Because he can see the experience from the point of view of the one most intimately involved.
There is some discussion about whether all this is necessary because at some jails prisoners are thrown into a common room where all those Swiss Army knives could be expelled out of rectums and vaginas and used to slash other prisoners or even jailers. The justices were confused on this point. Apparently, they feel compelled to make a rule for all jails, those with rooms where prisoners mingle and those for jails with private cells.
But this problem does not keep their attention for long. They want to make a rule. What is clear is they have no idea for whom they are making the rule: What is the landscape? Will the strip search rule be carried out in jails at a small police station with two cells and Andy Griffith and Don Knox scratching their heads or will the jails look like those holding pens in The Wire? They are making a rule for circumstances they don't bother exploring, as if a rule for passenger safety should be applied to a 747, a F15 fighter plane and the space shuttle.
They never concern themselves with the problem of whether or not common rooms into which men and women who might be dangerous are thrown is a violation of anything.
Then Justice Roberts asks brightly, “Is there a distinction between the simple strip search and the visual body cavity search?”
Well, I don’t know, I suppose there might be a degree of difficulty factor: I mean how do you accomplish a visual body cavity search? X ray vision?
Justice Alito really gets into the imaging of the scenes. (We are beginning to wonder about Justice Alito.) “Suppose a jurisdiction has the policy of requiring every inmate who is arrested and is going to be held in custody to disrobe and take a shower and apply medication for the prevention of the spread of lice and is observed while this is taking place from some distance by a corrections officer, lets say 10 feet away. Does that require a reasonable suspicion?”
Now we are back to the slave master again: Here is the assertion strip searches, like lice shampoo are for the prisoners' benefit.
So far, nobody has raised the issue: Just how often are Swiss Army knives actually found in rectums or vaginas after all this effort, across all 50 states, in all those jail houses?
Justice Kennedy does remark: “I think—in my practice at least—county jails were much more dangerous than penitentiaries, because you don’t know who these people are. You arrest them for traffic and they may be some serial killer.”
Well, there we are.
And think of all those people getting on airplanes: You are scanning them and you may be scanning serial killers, or mad bomber terrorists!
Squat! Genital lift!
Then it comes out the jail in question strip searches about 70 people every day.
This, the justices murmur, might present an “administrative problem,” if an individual decision had to be made about whether or not to strip search someone, about who to strip search. Maybe you could do only the pretty ones.
We could look to a really efficient system for guidance: Didn’t the Germans come up with something in the 1940’s when they had trainloads of people arriving at detention centers? They stripped everyone and they de loused them, too. No lose of dignity in Germany. Lose of life, but dignity remained intact,.
Another set of numbers: The US Marshall Service has an “intake” of 220,000 inmates a year and the Bureau of Immigration Customs Enforcement has 384,000 and ICE does 600,000 people. Just think if jailers had to make a decision about each of those people! Unworkable! We need a rule.
Finally, after much deliberation about whether a prisoner’s dignity would remain intact if the jailer ogled him or her from 2 feet or 5 feet or 10 feet, Justice Breyer finally asks (on my page 38 of the transcript) about whether any of this strip searching is productive, in the sense of discovering what the strip search is looking for: Swiss Army knives.
“My law clerk thinks it’s one out of 64,000 or less.”
He doesn’t actually say what is 1 out of 64,000, but I am inferring he means that’s how often they actually find something of interest, to wit, a Swiss Army knife or “Contraband,” which could be anything from Cocaine to medication for attention deficit disorder.
Ah, but the attorney for the defense has a ready answer: “This Court said that the fact there is not a lot of contraband being found may be a testament to the effectiveness of the deterrent.”
Let’s think about this for a moment. You are driving down the road and you see the flashing blue lights in your rear view mirror. So your first impulse is to stuff your marijuana and your Swiss Army knife up your rectum, but then you think, Oh, wait, they will have me squat down and do a genital lift in the jail. I’ve read about that.
So you swallow both instead.
Now, you are probably wondering about that 1 in 64,000 number. If I proposed to do a blood test for some disease, maybe a fatal disease, and I could tell you that you would find a case once for every 64,000 people screened, would Medicare pay for it?
And what is really interesting about this is that 1 is the 1 you found. Most medical studies try to assess the numbers you miss with your procedure. Suppose you knew you found 1 case out of 64,000 screened but you missed 1,000 cases? Would that not affect your decision about funding?
Here we are told by the lawyer for the jails: “The single biggest problem in Kentucky prisons and the biggest cause of death is drug overdose, which suggests there is a serious contraband issue in Kentucky.”
Or, looked at another way, what this suggests is all those strip searches missed a whole lot of drugs.
And, you may ask: I thought the strip search was to protect the jailers and the other prisoners from Swiss Army knife attacks: What do I care if some guy does himself in in jail? He would just as likely done himself in if he were not in jail. At least in jail somebody might be around to help him.
The lawyer for the strip searched plaintiff does cite some study which reviewed 25,175 admissions which produced 14 instances of “contraband.” And that was strip searching everyone. It is not known how many of those 14 could have been identified by a little questioning, say the way passengers flying El Al airline get grilled every day before they are allowed to board the plane. The administrative problem of dealing with large numbers in individual ways has not thwarted El Al for the past 40 years.
And here we get back to the thread I promised you. Here we have form and function in conflict. If the function of the oral arguments is supposed to be the thoughtful examination of the most basic issues presented in a particular case, would it not make sense for the lawyers to make a five minute presentation and then give the justices a few minutes each, if there are 9 then say that would take 30 minutes total, during which they could each ask either of the lawyers a set of questions. Then give the lawyers 15 minutes each to reply to the questions and you are out of there in under two hours.
In this particular case, the oral argument could have been opened and closed by Justice Sotomayor.
By page 42, Justice Sotomayor finally asks: “But what are we doing with the presumption of innocence?”
Sixty odd pages, how many hours, and one Justice asks the one question that matters and nobody even bothers to respond.
Your taxes at work.
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