In 2011, two hundred female inmates in an Illinois prison were marched to a beauty salon and a bathroom off of a gym. In full view of male and female cadets, correctional officers, and civilians, as guards screamed insults and derogatory statements, they were ordered to strip naked and bend over, spread their buttocks and vaginas, and cough. This is known as a “visual body-cavity search,” since the guards did not touch the prisoners. According to prison officials, the search was a cadet training exercise. After a prisoner claimed Fourth Amendment and Eighth Amendment violations, the case, Henry v. Hulett, eventually came before the Seventh Circuit Court of Appeals. In 2019, the Seventh Circuit’s holding rejected the argument that Fourth Amendment protections against unreasonable searches applied, holding that when a prisoner conducts such a search themselves, untouched by a guard, the Fourth Amendment is not implicated.
When an individual is incarcerated, they lose certain constitutional rights, especially when the exercise of those rights impedes a punitive objective. Prisoners only retain rights that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. In Hudson v. Palmer, the Supreme Court described how the Fourth Amendment pertains to incarcerated prisoners. It only applies to prisoners when the prisoners have a legitimate expectation of privacy in an area. In examining whether prison officials can randomly search through inmates’ cells, the Court held that the inmates’ right to privacy within their cells could not be reconciled with the needs and objectives of penal institutions, and thus they had no legitimate expectation of privacy within their prison cells. Determining whether an expectation of privacy is legitimate requires balancing the interest of society in the security of its penal institutions and the interest of the prisoner in privacy in the area in question.
In Henry v. Hulett, the Seventh Circuit stated its rule that prisoners only retain a legitimate expectation of privacy as to the insides of their bodies, not the outsides. When a physical intrusion into a prisoner’s body, such as a body-cavity search or involuntary catheterization, is conducted by a guard, the search must be reasonable under the Fourth Amendment. However, if the guard does not touch the prisoner during a body-cavity search, with the prisoner performing the search on their own bodies, then the Fourth Amendment is not applicable. The Seventh Circuit did not consider the fact that the prisoners were ordered to conduct the search to be relevant.
Why the Seventh Circuit’s Rule is Flawed
Scrutinizing the Seventh Circuit’s holding under the analysis of the Supreme Court in Hudson exposes the faulty reasoning behind the rule set forth in Henry. The Supreme Court denied the existence of a prisoner’s expectation of privacy inside their cells because it would be impossible for prisons to fulfill legitimate penal objectives if that privacy right was recognized. Prisons need to restrict the flow of weapons, drugs, and other contraband to maintain safety, and prisons could not do so without being able to randomly search inmates’ cells. As applied to the Seventh Circuit’s rule, this means that, when balancing the prisoner’s privacy interests in their bodies against the penal institution’s security interests, the circuit court believes that recognizing a prisoner’s right to bodily privacy would not impede the prisons from achieving their important objectives. However, those penal objectives are only unimpeded when a guard performs the intrusive search on a prisoner’s body. When a prisoner is ordered to conduct the same search on themselves, then the prisoner’s privacy interests are suddenly impeding the prison from fulfilling its objectives. Therefore, according to the Seventh Circuit, some prison objective, compelling enough to deprive a prisoner of their constitutional rights, is impermissibly impeded only when a prisoner conducts an intrusive search on their body, but not when a guard carries out the exact same search. The Seventh Circuit has offered no explanation as to what that objective is, or why the distinction holds so much weight. This discrepancy is meaningless, and visual body-cavity searches of this sort should meet the reasonableness requirements of the Fourth Amendment.
The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.