MADISON, Wis. — Critics of a bill that ends a “12-hour clause” on expanded jailhouse strip searches say the legislation recently passed in the state Senate and awaiting debate in the Assembly is the kill shot to critical constitutional protections.
“When you strip-search someone, you strip them of more than their clothes; you strip them of their dignity and constitutional rights,” said state Sen. Lena Taylor, a fierce opponent of the legislation. The Milwaukee Democrat authored four amendments in an attempt to carve out exemptions and water down the legislation, but the Republican-led bill passed 19-14 on a party-line vote.
Passage came within hours of a settlement stipulating Milwaukee pay out $5 million to dozens of black men (and their attorneys) who said they were subjected to illegal strip searches, including cavity searches.
The state Senate last week approved the bill that would end the 12-hour requirement in current strip search law. As the law stands, a suspect arrested or detained on alleged crimes less than a felony or certain misdemeanors may be strip-searched if they are to be detained for at least 12 hours and they have to be housed with other inmates. Police still have the right to conduct strip searches on those suspected of carrying weapons or hiding evidence.
Current law requires law enforcement agencies to hold such suspects in separate quarters, away from the general jail population. While the 12-hour rule was designed to give the accused an opportunity to arrange for bail, sheriffs have complained the provision is a burden on their resources and a threat to security.
St. Croix County Sheriff John Shiltz said he just wants to prevent inmates and staff from being harmed by contraband coming into cells. He said his rural sheriff’s department has a limited number of holding cells, and those individual cells can fill up fast.
“So now what do I do with a person for 12 hours? In my case, once they have exhausted all efforts to be bailed out or released, if the single-occupancy cell is full, I’m going to have to waive the strip search,” the sheriff said. Doing so presents a security risk.
Schiltz said his jailers have found methamphetamine, marijuana and other contraband in the cell blocks. While he could not definitely say the contraband came from suspects introduced into the general inmate population, he said it is the “logical conclusion.”
The bill removes a provision that liberals and libertarian conservatives fought hard to include in 2013’s Act 317. That bill expanded visual strip searches to anyone arrested and detained.
State Rep. Dave Craig, R-Town of Vernon, was an outspoken critic of Act 317, and worked alongside a group of libertarian-minded conservatives and liberals to install the 12-hour provision.
“Does the punishment fit the crime is the first thing,” Craig said. “So you have some random guy who drinks too much and needs to sit in the town clink like Otis from ‘The Andy Griffith Show.’ Does Otis the drunk need to get strip-searched?”
While the lawmaker says he gets the safety aspect, he’s concerned the law treats everyone arrested the same, taking away constitutional rights for no good reason.
Others assert the latest strip search bill is a solution in need of a problem.
Two extensive New York studies examined strip searches of 75,000 and 23,000 inmates respectively, and found contraband smuggling was an extremely rare occurrence in such cases.
“In the larger study, unconstrained strip searches led to only sixteen instances in which contraband was found secreted in the detainee’s body or in a body cavity, thirteen of those sixteen would have been searched under a reasonable suspicion standard,” reported an op-ed from the New York Civil Liberties Union. “In the 23,000-person study, there were five instances in which strip searches yielded contraband, and four of them involved situations in which reasonable suspicion otherwise would have existed.”
For proponents of the bill, one case of contraband in Wisconsin jails is too many. Yet, at a hearing on the legislation, law enforcement officials could not quantify the incidents of contraband coming in from suspects of lesser offenses who were not strip-searched.
There is judicial cover for expanded strip searches.
In 2012, the U.S. Supreme Court ruled (5-4) that law enforcement agents may strip-search people arrested for any offense before jailing them — even when there is no reason to suspect the presence of contraband.
“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Anthony M. Kennedy wrote.
State Sen. Sheila Harsdorf, R-River Falls, said she sponsored the bill at the request of sheriffs in her district. She said law enforcement would still have to follow strict processes and procedures. The bill only relates to general visual strip searches, not cavity searches.
“There ought to be consequences for unlawful searches, and we really need to distinguish between illegal and legal searches,” the senator said. “We have seen there are consequences, and those protections are still in place in the statutes.”
Craig said the Assembly has enough members who will speak out against such expanded police powers. He pointed to a number of bills moving through the Legislature aimed at increasing security, at the expense of liberty.
The lawmaker said the current strip-search law does a good job of balancing both needs, and to “upset that balance is not appropriate.”
“It’s liberty versus tyranny, something our Founding Fathers had very much on their minds when they created this republic,” Craig said. “You can’t sacrifice your liberty every time a question of your security comes up because then you don’t have a republic anymore.”