Rather than condemning the profligacy of the State in providing basic human rights for its most marginalized, we must continue to demand positive rights for all. Demanding humane treatment of inmates is substantively necessary, but can also be strategically valuable because it is one of the few spaces in our jurisprudence that recognizes the language of positive human rights.
To be sure, being stripped naked and visually inspected by strangers is a violation of basic dignity and personal privacy, especially in the absence of any suspicion of risk. Kennedy’s “balance” of privacy and security needs sure seems like more of a complete sacrifice of one for the other.
At the conclusion of oral arguments on Wednesday, pundits were left guessing whether the Supreme Court would declare that Americans’ constitutional right to privacy bars prison officials from strip searching them if and when they are jailed for minor, nonviolent offenses. The case, Florence v. Bd. of Freeholders, explores both [...]
Anthony Cooper is far from the most sympathetic litigant before the Supreme Court this term. In 2003, Cooper shot a woman four times as she ran away from him. Though Cooper’s behavior was by all accounts egregious, his attorney’s conduct was pretty bad as well. When a criminal defendant turns down a plea deal based on his attorney’s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?
While driving with his family in March 2005, Albert Florence was arrested on a bench warrant for failing to pay a court fine. Florence had, in fact, paid the fine years before and the matter was eventually resolved – but not before Florence had been repeatedly strip-searched by prison officials during a six-day stay in county correctional facilities. The invasiveness of the facility’s intake procedures is jarring, especially in light of the inconsequentiality of Florence’s purported offense. But are the procedures constitutional?
In a relatively little-noted decision last term, the Supreme Court favored a particular vision of federalism over the protection of religious freedom. The 6-2 ruling, in Sossamon v. Texas, barred money damages in private actions brought by prisoners against state and local governments under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Sossamon continues a trend of denying prisoners any effective opportunity for the enforcement of their rights.
Since the Supreme Court’s decision in Carlson v. Green, inmates have been able to sue individual prison officials for violating their Eighth Amendment rights. A recent trend in federal prisons is threatening to destroy this cause of action for prisoners. Now it is up to the Supreme Court to clear up this controversial question and resolve the circuit split.
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