April 21, 2018
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More people could be strip-searched in Maine jails after Supreme Court ruling

By Judy Harrison, BDN Staff

BANGOR, Maine — A decision issued Monday by the U.S. Supreme Court will allow more people booked in Maine jails to be strip searched.

How soon changes will be implemented remained unclear the day after the 5-4 ruling that jail security trumped individual privacy guaranteed under the Fourth Amendment.

Until Monday’s decision, Maine allowed strip searches of detainees charged with crimes involving violence, drugs or weapons. Arrestees charged with other crimes, whether felonies or misdemeanors, were not subject to strip searches unless there was a reasonable suspicion the person possessed a weapon, controlled substance or other contraband.

Penobscot County Sheriff Glenn Ross said Tuesday that individuals who are able to make bail in a few hours will not be strip searched at the Penobscot County Jail. The court’s decision will apply only to arrestees who are unable to make bail or must appear before a judge, he said.

The U.S. Supreme Court’s ruling said that arrestees who were to be placed in the general population of a jail could be strip searched no matter what charges they were facing.

“We are not going to start strip-searching everyone who comes through the door,” Ross said. “We want to look at whether people charged with minor crimes and are low risk [for bringing in contraband] might be placed in a separate area away from the general population.”

Ross, who is head of the Maine Sheriffs Association, said he and other sheriffs would talk with Waterville lawyer Peter Marchesi about how and when strip search policies should change in light of the decision.

Marchesi defended York and Knox counties in separate class action lawsuits filed in U.S. District Court over illegal strip searches at their jails. He also has defended other counties, including Penobscot County, in lawsuits filed by individuals over strip-search practices.

“This is a welcome decision for correctional facilities in Maine and nationwide,” Marchesi said Tuesday in an email. “It comports with what Maine’s counties have been arguing in court for years: that the ‘reasonable suspicion’ requirement to strip search so-called ‘minor’ offenders has never been endorsed by the United States Supreme Court, and is/was a standard that represented improper court interference with correctional officials’ efforts to operate safe jails.”

Marchesi said he would be working with county jail officials to bring “current policies into conformity with the decision, namely, relaxing current restrictions on certain searches.”

Newport lawyer Dale Thistle, who has successfully sued several county jails over their strip-search policies, called Monday’s decision “horrible, absolutely horrible.”

“It wrongly allows institutional security, without justification, to trump constitutional liberty,” he said Tuesday in a telephone interview. “I believe that the Supreme Court just gave carte blanche to prisons and jails throughout the country to mix everybody who is arrested in with the general population of the institution. General population — that is the catch phrase.”

Thistle predicted that soon nearly everyone arrested in Maine who could not easily be held in a booking area until posting bail would be strip searched and placed in the general population of a jail.

“Now that the decision to strip-search a person is no longer dependent on the seriousness of crime or the circumstances surrounding the arrest, if you get stopped for some [minor] crime but go to jail, you can be strip searched,” he said. “It doesn’t matter if it’s a finable or jailable offense.”

The American Civil Liberties Union of Maine said there is nothing in the Supreme Court’s ruling that would force Maine jails to change their policies.

“Fortunately, we have regulations here in Maine that govern when a prisoner may be strip-searched and by whom,” Zachary Heiden, an attorney for the ACLU of Maine, said Tuesday in an email. “Maine’s regulations are not affected by the Supreme Court’s decision, and jail and prison personnel need to continue to follow the Maine rules.

“The best way to preserve the privacy of the thousands of Mainers who are arrested each year (often for minor offenses) is not to put them in jail in the first place,” he continued. “There are cheaper and more effective alternatives to incarceration available for people arrested on minor offenses.”

The decision, Marchesi said, balanced the individual’s right to be free from unreasonable searches and seizures, guaranteed by the Fourth Amendment to the Constitution, with jail officials’ need to maintain security and to keep contraband, particularly drugs, out of penal institutions.

“As the decision highlights,” Marchesi said, “jails are extremely dangerous places, fraught with the risk of extreme violence, disease, and harm to inmates, staff and the visiting public. This decision recognizes those risks for what they are, and restores to the correctional experts the ability to manage those risks, using appropriate correctional tools, without undue judicial interference.”

Ross said that tobacco, prescription drugs and bath salts have been smuggled recently into the Penobscot County Jail by people who were not subject to strip searches.

That, according to Thistle, will be of little comfort to people who after Monday’s ruling will be subject to strip searches for minor offenses. He said he has talked with thousands of people who were illegally strip searched in Maine jails. All described it as the most humiliating experience of their lives, he said.

“I’ve had men and women break down in tears when they talked about their experiences being strip-searched,” Thistle said. “This decision is just going to lead to more abuse.”

Ross said he and his staff would be working with Marchesi to find something in between the current policy and strip searching nearly everyone who is booked into the Penobscot County Jail.

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