In March of 2011, a tactical team at Lincoln Correctional Center in Illinois rounded up and marched 200 handcuffed female prisoners into a gymnasium. Without saying why, guards took groups of four to ten prisoners into one of two adjoining rooms, both of which were visible to people in the gymnasium, which include male and female cadets and correctional officers. They then directed the women to strip. Forced to remove their tampons, women on their periods bled onto the floor. As the prisoners stood naked, guards ordered them to raise their breasts, turn around, bend over, spread open their vaginal and anal cavities, and cough.

These invasive strip and body cavity searches were not part of an emergency protocol, nor did the prison suspect any woman of possessing hidden contraband. Rather, the mass strip search was a training exercise for new cadets. This past July, in Henry v. Hulett, the Seventh Circuit upheld the conduct. Now, in regard to her person, a prisoner in the Seventh Circuit has no Fourth Amendment rights, even when ordered to probe her own body cavities, unless “the physical intrusion into her body is carried out by someone other than the prisoner herself.”

The Fourth Amendment and the Supreme Court

The Fourth Amendment protects from unreasonable searches and seizures of persons and their property. Importantly, the Fourth Amendment applies only when a party has a subjective expectation of privacy and that expectation is “one that society is prepared to recognize as reasonable.” Courts deny incarcerated people the full extent of their Fourth Amendment rights, finding curtailment necessary for institutional purposes. While pre-trial detainees have a lower expectation of privacy than the public, prisoners post-conviction face a severely reduced expectation of privacy.

The Supreme Court has permitted extensive institutional discretion on the issue of strip searches, increasingly curtailing Fourth Amendment protection for prisoners. In 1979, the Supreme Court found in Bell v. Wolfish that visual body cavity searches conducted after every visitor contact are “reasonable” searches that do not require probable cause. Admitting that body cavity visual inspections invade the privacy of prisoners and give the justices “pause,” the Court explained that the serious security threat posed by smuggled contraband outweighed such privacy concerns. A few years later, in Hudson v. Palmer, the Supreme Court decided that prisoners do not have a reasonable expectation of privacy as to their cells or possessions and therefore have no Fourth Amendment protection against searches and seizures in their cells. While not directed at privacy of person, this holding has been used to justify increased limitations on Fourth Amendment protection against strip searches.

Finally, in 2012, the Supreme Court in Florence v. Board of Chosen Freeholders held that correctional facilities can impose blanket, suspicionless strip searches on all incarcerated people, including pre-trial detainees, before admission to the general population. The Florence court did not even discuss the plaintiff’s privacy interest, deferring largely to the “expert judgment” of correctional officers as to how to run the institution. Given the trajectory of the Supreme Court’s decisions, the Seventh Circuit decision this summer, denying Fourth Amendment protection against strip searches except where correctional officers physically probe prisoners’ body cavities, was not unprecedented. In fact, Hulett was foreseeable. Once the court begins taking away rights from a class of people, the line of what is tolerable often keeps receding.

Correctional Institutions and New Strip Search Methods  

By its tolerance for abusive tactics and deference to correctional officers, the Supreme Court has empowered carceral facilities to conduct strip searches through more invasive and more public means. In Bell and Florence, one or two correctional officers conducted the strip searches behind closed doors. In contrast, Hulett was a nonprivate, group strip search. It was nonprivate because it took place somewhere other prisoners and correctional officers who were not part of the strip search could see. It was a group strip search because it involved strip searching multiple prisoners at the same time, where each could see the others.

Nonprivate, group strip searches are more violating and humiliating than private strip searches, and the Supreme Court has yet to address them. Lower courts vary in treatment of nonprivate and group strip searches. Some, like the Seventh Circuit in Hulett, treat them no differently from private and individual strip searches. Most others require the correctional officers to assert some penological interest in conducting the search as a group. Yet this penological interest does not require rigorous justification; the need for an expedited process or the presence of a high volume of prisoners both have qualified.

Hulett is not alone in involving a nonprivate, group strip search. The same day the Seventh Circuit decided Hulett, a $53 million settlement was filed in the U.S. District Court for the Central District of California over a Los Angeles County Sheriff’s Department practice between 2008 and 2015. The facility routinely strip-searched female prisoners in groups of 20 to 60 people, ordering the women to bend over and “spread their genitalia” with their hands, usually for three to five minutes. As in Hulett, the California carceral facility ordered prisoners to probe their own body cavities, rather than having correctional officers administer the probe. In addition to group searches, body cavity probes exemplify the invasive and degrading search tactics tolerated by the courts. Judge Lee commented in his Hulett dissent that “it seems odd” to predicate a constitutional distinction merely on “who is doing the probing or penetrating.” As Judge Lee concluded, a prisoner should have a reasonable expectation of privacy as to the inside of her body, and the constitutional violation stems from forcing that exposure. 

Psychological and Societal Harm

As humans, we have “an intense cultural and personal sense of privacy” in our bodies. Invasive strip searches can therefore be humiliating and demeaning experiences and often cause long-term psychological trauma. Women are usually subjected to more invasive searches than men because correctional officers claim that vaginal smuggling is more common than anal smuggling. Women are likely to enter prison with histories of abuse, and strip searches may become extensions of that abuse. Women suffering from post-traumatic stress disorder undergo a “re-victimization,” causing flashbacks, anxiety, depression, and suicidal thoughts. Apart from eliciting past trauma, women describe invasive strip searches as terrifying and dehumanizing. Correctional institutions have dramatic power dynamics, making strip searches ripe for abuse. Women report being treated like animals, with correctional officers shouting obscenities at them and commenting crudely on their bodies and odors throughout the strip search.

The Supreme Court once declared, “Prisoners retain the essence of human dignity inherent in all persons.” Yet invasive strip searches are a direct affront to human dignity. Forcing prisoners against their will to expose themselves in humiliating ways attacks their bodily integrity, failing to respect their value as humans. Bodily integrity is an “overarching value that informs” a range of legal rights and prohibitions. It is a moral demand – the right to “exclude others from the body.” The legal system punishes crimes like medical malpractice, assault, and rape because these violations of bodily integrity tear at our social fabric. But carceral institutions order invasive strip searches of prisoners as if that does not.

A New Standard

The stakes are too high for the Supreme Court to continue playing a hands-off role in the practice of strip-searching detained and incarcerated people. First, the Court should affirm that all people – incarcerated or not – have a reasonable expectation of privacy when it comes to exposure of their bodies or body cavities. Hulett cannot remain good law.

Second, the Supreme Court must tip the scale on Fourth Amendment strip search cases away from correctional officers and toward prisoners. The Court in Bell called for “a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Yet, in awarding nearly complete deference to correctional officers, the Court effectively rendered hollow any concern for intrusiveness – prison officials can always cite security concerns as justification. Correctional officers should no longer receive this deference.

Instead, the Supreme Court should only allow a strip search if it is the least intrusive means to accomplish a legitimate security interest. Body cavity searches should rarely if ever qualify. Allowing only the least intrusive means of searching would restrict correctional institutions to only conducting group strip searches where there is no alternative.

The Supreme Court repeatedly asserts that “there is no iron curtain drawn between the Constitution and the prisons of this country.” Until the Supreme Court lives up to this proclamation, the Fourth Amendment fails to protect the most vulnerable from abuse.


This article is authored by Sara Carter, J.D. Candidate, 2021