Bellv Wolf Is Haffv

WFU Summer 05
Andrew, AJ, Tyler
Bell v Wolfish Affirmative
AFFIRMATIVE:
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topicality: authority from bureau of prisons...............................................................................................7
inherency: no protections now.......................................................................................................................8
inherency: blanket authority to search now.................................................................................................9
inherency: balancing test bad......................................................................................................................10
inherency: balancing test bad......................................................................................................................11
harms: searches dehumanizing...................................................................................................................12
harms: dehumanization impacts.................................................................................................................13
harms: sexual abuse.....................................................................................................................................16
harms: non-violent offenders also targeted................................................................................................17
harms: both jails and prisons......................................................................................................................18
harms: at searches only visual.....................................................................................................................19
harms: key fourth amendment issue...........................................................................................................20
harms: at dna alternate causality................................................................................................................21
harms: at cross-gender alternate causality................................................................................................22
harms: at cross-gender alternate causality................................................................................................23
solvency: bureau of prisons.........................................................................................................................24
solvency: bureau of prisons.........................................................................................................................25
solvency: at searches keep prisons safe.......................................................................................................26
solvency: probable cause best......................................................................................................................27
solvency: probable cause best......................................................................................................................28
at critiques: need policy solutions...............................................................................................................29
at: substantive privacy rights cp.................................................................................................................30
at: priosners can sue cp................................................................................................................................31
at: reasonable suspicion cp..........................................................................................................................32
politics links/turns........................................................................................................................................33
NEGATIVE:
harms: alternate causality...........................................................................................................................40
reasonable suspicion cp................................................................................................................................41
reasonable suspicion cp................................................................................................................................42
WFU Summer 05
Andrew, AJ, Tyler
1AC
Observation one: Inherency
In the case of Bell v Wolfish, the Supreme Court found that a balancing test between the rights of
prisoners and institutional security was an adequate protection of rights. Unfortunately, this has
resulted in prisoners having almost zero protection from body cavity searches because the
reasonable balancing test nearly always sides with the prison officials.
McMath (University of Cincinnati) 87 (56 U. Cin. L. Rev. 739, COMMENT: DO PRISON INMATES
RETAIN ANY FOURTH AMENDMENT PROTECTION FROM BODY CAVITY SEARCHES?, Tracy).
The majority in Wolfish identified a balancing test as the analysis for determining the reasonableness of a
search and seizure under the fourth amendment. n65 Regardless of whether the search involves the
prisoners' cells or their body cavities, the considerations to be weighed are the same: the need of the
institution in continuing the practice is weighed against the degree to which the practice intrudes upon the
prisoners' rights. In reality, however, instead of balancing competing interests, many courts merely examine
whether the body cavity search is reasonably related to the security of the institution. n67 Under a true
fourth amendment balancing test, the impact of the body cavity search on the physical and psychological
well-being of the prison inmate must be considered as well as the prison's security needs. n68 By failing to
give adequate consideration to the effect of the search upon the prisoner, the balancing test becomes
nothing more than an if/then proposition: if there is any prison security interest in conducting the search,
then the search is reasonable. The result is a very low standard of review for determining the permissibility
of the body cavity search under the fourth amendment. Because the Supreme Court has progressively
allowed more and more intrusive prison searches to fall within the realm of fourth amendment
reasonableness, the level of fourth amendment protection for prison inmates has declined. The increasing
deference given to the "expertise" of prison administrators, in addition to the use of a balancing test that
inquires only into the penal objective of the search, renders all searches reasonable unless entirely abusive.
A prison official is not likely to admit that his own or his subordinates' actions were unconstitutional. What
was at one time a limited fourth amendment protection guaranteed to prison inmates has been eroded to
literally no protection at all. The intrusiveness of the search upon the rights of the prisoners is barely a
consideration.
This decision also gave authority over searches to the Bureau of Prisons, they are in created the rule
that allows searches without probable cause
Once within the walls of a prison, jail, or other detention facility, the standards for what is a permissible
search or seizure change. Neither a search warrant nor probable cause is required to justify a prison search.
The authority of prison officials in federal penal and correctional institutions to undertake searches of
prisoners, including body cavity searches, derives from the grant of management and regulatory power to
the Bureau of Prisons. Federal regulations also exist that empower the Director of the Bureau of Prisons, as
well as local prison officials, to promulgate procedures for the control and treatment of prisoners. n19 The
authority of state prison officials to conduct inmate searches is likewise found in statutory and regulatory
grants of power.
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1AC
Observation two: harms
Cavity searches occur regularly in prisoninmates are searches every time they have contact with
visitors
Marshall (Supreme Court Justice) 79 (Thurgood, Bell v. Wolfish, 441 U.S. 520, p. 576-7, Lexis)
In my view, the body-cavity searches of MCC inmates represent one of the most grievous offenses against
personal dignity and common decency. After every contact visit with someone from outside the facility,
including defense attorneys, an inmate must remove all of his or her clothing, bend over, spread the
buttocks, and display the anal cavity for inspection by a correctional officer. Women inmates must assume
a suitable posture for vaginal inspection, while men must raise their genitals. And, as the Court neglects to
note, because of time pressures, this humiliating spectacle is frequently conducted in the presence of other
inmates. The District Court found that the stripping was "unpleasant, embarrassing, and humiliating." . A
psychiatrist testified that the practice placed inmates in the most degrading position possible, a conclusion
amply corroborated by the testimony of the inmates themselves. There was evidence, moreover, that these
searches engendered among detainees fears of sexual assault, were the occasion for actual threats of
physical abuse by guards, and caused some inmates to forgo personal visits.
Cavity searches are humiliating and degrading. The practice also makes prison less secure because it
generates deep hostility.
Justice Marshall referred to the prior findings on the effect of body cavity searches on the inmates. The
searches were labeled "unpleasant, embarrassing, and humiliating." n90 His opinion also referred to a
psychiatrist's testimony indicating that the practice places the inmates in "the most degrading position
possible." n91 The evidence indicated that the searches engendered fears of physical abuse and sexual
assault. None of this evidence was rebutted by credible government evidence; and yet, the Court failed to
weigh these impacts on the prisoners in the balancing test used to determine the reasonableness of the body
cavity searches. n92 In Goff, the dissent noted testimony given at trial by a clinical psychologist and former
prison warden regarding the fear inmates have of homosexual attack. n93 The testimony indicated that
body cavity searches make the inmates feel humiliated and vulnerable to homosexual assault. n94 This
"heightened sensation of vulnerability" can cause serious psychological trauma. n95 A recent case,
McRorie v. Shimoda, suggests that prisoners' fears of physical and sexual abuse may not be imaginary. n96
In Shimoda, a prison guard attempted to force a riot stick into a prisoner's anus during a strip search while
the prisoner's back was turned. n97 Body cavity searches in prisons do more than merely provide a vehicle
for the detection of contraband. The searches transform the prisoner's most valued and personal possession,
his body, into an object for degradation. n98 By this degradation and humiliation of the prison inmates,
prison officials may be increasing the need for institutional security, rather than maintaining it. n99 By
promoting the inmates' dignity rather than depriving them of it, the feelings of hostility and tension may be
lessened, thereby diminishing the need for this detrimental security practice.
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1AC
Cavity searches are not used for prison safetythey are part of a system of deliberate degradation
that is designed to terrorize prisoners
Gutterman (Professor of Law at Emory) 97 (Melvin, The Prison Jurisprudence Of Justice Thurgood
Marshall, 56 Md. L. Rev. 149, p. 180-3)
Although prison officials sometimes deliberately use prison regulations and practices to punish
misbehavior, for the most part they evince an indifference toward the prisoner's plight. Their primary
interest is in maintaining exclusive authority to operate their prisons as they see fit. 276 Justice Marshall
knew that the Constitution required the Court, not the warden, to balance the preservation of human dignity
against correctional needs. 277 Nowhere are dignity concerns more acutely implicated than in the area of
bodily integrity. Intrusive body searches generate feelings of "degradation" and "terror." 278 Visual body
cavity examinations engender fear in inmates of physical and sexual abuse by prison guards. 279 Even
though governmental security interests are strongest with respect to preventing dangerous weapons and
contraband from entering the prison, the Court rightfully paused in Wolfish, when inmates at all Bureau of
Prison facilities were routinely required "to expose their body cavities for visual inspection as a part of a
strip search conducted after every contact visit with a person from outside the institution." 280 There was
testimony that the procedures may leave permanent psychological scars. 281 The practice was so
"unpleasant, embarrassing, and humiliating," and placed inmates in such a degrading position, that it caused
some of them to forego visits with friends and family altogether. 282 The Court hesitantly continued to
permit these searches, despite the potential for abuse and the invasion of the inmates' personal privacy. 283
The majority's balancing test 284 to determine reasonableness under the Fourth Amendment gave way to
one critical factor: "A detention facility is a unique place fraught with serious security dangers." 285 The
Court regarded the discovery of one incident of contraband smuggling in body cavities as a testament to the
searches' effectiveness, rather than as an argument against its reasonableness. 286 Undoubtedly, this
practice perpetuated the degradation and dehumanization of the inmates.
Dehumanization is the root of genocide and war. When human dignity is disposable, all other
impacts are possible.
Berube (Professor of Communication at South Carolina) 97 (David, Ph.D. in Communications,
Nanotechnological Prolongevity: The Down Side, NanoTechnology Magazine, June/July 1997, p. 1-6,
URL: http://www.cla.sc.edu/ENGL/faculty/berube/prolong.htm)
This means-ends dispute is at the core of Montagu and Matson's treatise on the dehumanization of
humanity. They warn: "its destructive toll is already greater than that of any war, plague, famine, or natural
calamity on record -- and its potential danger to the quality of life and the fabric of civilized society is
beyond calculation. For that reason this sickness of the soul might well be called the Fifth Horseman of
the Apocalypse.... Behind the genocide of the holocaust lay a dehumanized thought; beneath the menticide
of deviants and dissidents... in the cuckoo's next of America, lies a dehumanized image of man... (Montagu
& Matson, 1983, p. xi-xii). While it may never be possible to quantify the impact dehumanizing ethics
may have had on humanity, it is safe to conclude the foundations of humanness offer great opportunities
which would be foregone. When we calculate the actual losses and the virtual benefits, we approach a
nearly inestimable value greater than any tools which we can currently use to measure it.
Dehumanization is nuclear war, environmental apocalypse, and international genocide. When people
become things, they become dispensable. When people are dispensable, any and every atrocity can be
justified. Once justified, they seem to be inevitable for every epoch has evil and dehumanization is evil's
most powerful weapon.
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1AC
Plan: The United States federal government, specifically the Bureau of Prisons, will substantially
decrease its authority to search without probable cause by requiring probable cause for body cavity
searches in federal prisons.
Observation three: solvency
The extremely traumatic nature of body cavity searches means that probable cause ought to be
required
Simonitsch 2000 (April, 54 U. Miami L. Rev. 665, COMMENT: Visual Body Cavity Searches Incident to
Arrest: Validity Under the Fourth Amendment, William).
Because visual body cavity searches can be categorized as intrusions beneath the body's surface without
conflicting with Wolfish, how do such searches fare under the Schmerber test? The answer depends on
whether a visual body cavity search is a minor intrusion, equal to, or greater than a blood test. Courts have
described blood tests as being more than an ordinary search, as requiring special treatment, and as a
violation of bodily integrity. n103 Nevertheless, blood tests have not been described nearly as colorfully or
with such a sense of horror as the visual body cavity search. If a minor, medically common, non-traumatic
procedure, such as drawing blood, requires probable cause and a clear indication, then certainly a "dehumanizing" process, such as these visual body cavity inspections, deserves the same protection.
Continues... The possible lasting effects of visual body cavity searches are "shock, panic, depression,
shame, rage, humiliation, and nightmares." The psychological effects on some people reportedly resemble
those of rape victims. The persons searched are required to humiliate themselves by stripping off all their
clothes and then must reveal their most private parts to complete, intimidating, and threatening strangers.
Two states have successfully used probable cause requirements for cavity searchesit has not been a
threat to prison safety
The dual purposes of searches incident to arrest are to search for weapons and to discover the fruits of the
crime that may be concealed or destroyed. If the probable cause/clear indication standard is set for visual
body cavity searches, will it jeopardize the safety of police officer and result in lost evidence?
Two states, New Jersey and Tennessee, have passed statutes requiring a search warrant or consent in order
to perform a visual body cavity search. The New Jersey statute defines a body cavity search as "the visual
or manual search of a person's anal or vaginal cavity." n115 The search must be authorized by warrant or
consent unless the person is lawfully confined to an adult county correctional facility and the search is
based on reasonable suspicion. n116 This statute was enacted in 1991. A Tennessee statute defines a body
cavity search as "an inspection, probing or examination of the inside of a person's anus, vagina, or
genitals." n117 A warrant for a body cavity search is likewise required by Tennessee. n118 Tennessee's
statute was enacted in 1993. The heightened requirement of search warrants, implying at least a probable
cause requirement, has been tested by these two states for over six years. There are no apparent movements
pushing for a reversion to prior standards. If this is accurate, it is a testament that safety and functionality
can continue to be preserved under a probable cause standard. The barring of visual body cavity searches
incident to arrest does not appear to be an impediment to police officers safely and effectively carrying out
their duties.
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1AC
Probable cause would be the best form of protectionit best protects the interests of the prisoners
and broader interest in protecting the fourth amendment
The practice of performing warrantless visual body cavity searches with less than probable cause to search
and a clear indication that evidence will be found is unconstitutional under the Fourth Amendment. Visual
body cavity searches should satisfy the technical aspects and the [*688] spirit of the Schmerber v.
California decision. The Supreme Court set out to protect human dignity and privacy, and it did not seek to
turn its back on this principle in Bell v. Wolfish. Wolfish represents the difficult choices the Court is often
forced to make when weighing two vital interests: the privacy interests of pre-trial detainees versus the
security interests of prison personnel and inmates. The Supreme Court's prioritization of institutional
security over individual privacy in Wolfish should not affect Fourth Amendment protection outside of the
prison or detention center context. Even more disturbing than visual body cavity searches incident to arrest
on less than probable cause is the possibility of the Fourth Amendment losing more of its teeth. If courts
allow the detention center pre-admission search to be grounds for inevitable discovery, then there will be
little protection against bad faith abuses and intrusions to privacy. Such a loss of constitutional rights is
unacceptable. The courts must read and apply their own words - "demeaning," "dehumanizing,"
"degrading," and "repulsive." That is how they view the visual body cavity search. The courts need only to
hold that the dignity and privacy of one's body are vital human interests. The courts must find that,
although permitted in jail on mere reasonable suspicion, authorities must meet the Schmerber standard in
order to conduct visual body cavity searches incident to arrest. That is, they must establish that they have
probable cause to search and clear indication that the evidence sought will be found.
Criticism of body cavity searches is a beginning point for a larger critique of the prison system
because it generates questions about the connections between the law and violence
Willens (JD, Harvard Law) 87 (37 Am. U.L. Rev. 41, Jonathan, ARTICLE: STRUCTURE, CONTENT
AND THE EXIGENCIES OF WAR: AMERICAN PRISON LAW AFTER TWENTY-FIVE YEARS 1962 1987. *).
Necessary deprivation has one important implication for the content of imprisonment: it rejects the
prisoner's claim to personal integrity. Shakedown searches hurt the prisoner; they are insulting and
frightening, and the damage to personal property steals a rare chance for the prisoner to construct an image
of himself beyond the prison walls. n545 Body-cavity searches hurt the prisoner; they are like spanking,
like cattle-branding, like rape. If citizenship includes (1) a claim to be with people, and (2) a claim to be
kept whole, then necessary deprivation rejects the second half of the prisoner's citizenship. n546 What will
prison do to the prisoner? It will invade him, split him, and deprive him of himself. When prisoners are
defined as brutal, hardened criminals, attacks on their humanity are easily ignored. When prison is defined
as inherently dangerous and violent, attempts to maintain institutional security which are themselves
dangerous and violent are easily justified. Both of these definitions have been essential to the legitimation
of the new legal prison. The new prison in turn legitimates attacks on the prisoner, attacks on his space, his
property, his body, and his pride. This prison is the paradigm of an irrational society: driven by fear and
violence under the rhetoric of law and order, built for custody and domination in the name of freedom and
democracy. The irrational society legitimates itself by rationalizing insane facts. The legitimation works,
until finally it becomes irrational to say the obvious: something must be wrong when society asks its
citizens to bend over and spread their legs so that society may inspect.
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TOPICALITY: AUTHORITY FROM BUREAU OF PRISONS

Bureau of Prisons has all authority over prison discipline
Wisconsin Fiscal Legal Bureau, 2001 (Contract with the Federal Bureau of Prisons, online:
http://www.prisoncentral.org/Prisoncentral/DOC%20Paper%20by%20Leg%20Fiscal/Contracted
%20Beds/Federal%20Bureau%20of%20Prisons.htm)
The federal Bureau of Prisons will have physical control over, and power to exercise disciplinary authority
upon, a transferred inmate. While in the custody of BOP, the inmate is subject to federal laws, rules, and
regulations not inconsistent with the sentence imposed.
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INHERENCY: NO PROTECTIONS NOW

Prisoners are deprived of nearly all constitutional protections
Gardner, (Professor of Law, University of Nebraska) 85 (Martin, 76 J. Crim. L. & Criminology 75
ARTICLE: Hudson v. Palmer -- "Bright Lines" But Dark Directions for Prisoner Privacy Rights, Lexis).
Privacy is a luxury virtually unknown in the daily lives of incarcerated offenders. While the United States
Supreme Court has recognized privacy as a protected interest under several constitutional doctrines and has
granted that prison inmates do not forfeit all civil rights upon entering penal institutions, the exigencies of
confinement require prison officials to extensively intrude into the intimacies of inmates' lives. Yet, until
the Supreme Court's recent decision in Hudson v. Palmer, some courts appeared willing to afford prisoners
that modicum of constitutionally protected privacy consistent with the weighty governmental interest in
maintaining law and order within penal institutions. Palmer, however, signals the end of the judicial attempt
to accommodate federal constitutional privacy rights relating to searches of prisoners' cells and personal
effects. The Palmer Court held, in an opinion by Chief Justice Burger, over the dissent of four Justices n8
and contrary to a substantial body of lower court case law, that prison inmates possess no recognizable
privacy expectations in their prison cells. n9 Prisoners are therefore without fourth amendment protection
against governmental confiscation and destruction of their personal property, even if the sole purpose of the
intrusion is to harass the inmate. n10 Unlike persons in the free world, prisoners enjoy no right "to be
secure in their . . . papers and effects against unreasonable searches and seizures." n11
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INHERENCY: BLANKET AUTHORITY TO SEARCH NOW

Prison officials have nearly blanket authority to conduct body cavity searches
The most recent interpretation of the meaning of Wolfish, however, follows a much more expanded view.
In Goff v. Nix, the United States Court of Appeals for the Eighth Circuit upheld the Iowa State
Penitentiary's policy of submitting prison inmates to body cavity searches as a condition of any movement
outside their living units or outside the facility. n61 The court characterized the facts of Goff as
indistinguishable from Wolfish. n62 Purporting to apply the Wolfish approach of balancing the state's
interest against that of the individual, the Goff court decided that the policy was valid except where the
purpose was to harass. n63 The Goff court upheld even those body cavity searches after movement
involving close surveillance or intraprison movement. Goff went far beyond the scope of Wolfish by
giving blanket approval to nearly all body cavity searches. This decision dangerously oversteps the limits
of the Supreme Court's stance in Wolfish. The Goff opinion unfairly denies prison inmates their
constitutional right under the fourth amendment to be free of unreasonable searches and seizures.
The Wolfish decision removed the necessity of probable cause for cavity searches
The Wolfish Court determined that the facility's legitimate security interests in preventing the smuggling of
weapons, money, drugs, and other contraband into a joint housing facility outweighed the intrusion of a
visual body cavity search to an inmates privacy interests, when carried out reasonably, even absent
probable cause, particularized suspicion, or clear indication. n61 A detention facility "is a unique place
fraught with serious security dangers." n62 The presumption of innocence in favor of the accused was
viewed as having "no application to a determination of the rights of a pretrial detainee during confinement
before his trial has even begun." The presumption only "allocates the burden of proof in criminal trials."
Probable cause isnt needed for cavity searches now
Bennett (Attorney) 83 (Stephen, The Privacy And Procedural Due Process Rights Of Hunger Striking
Prisoners, 58 N.Y.U.L. Rev. 1157, p. 1204-1205)
The Court reemphasized that "maintaining institutional security and preserving internal order and discipline
are essential goals that may require limitation or retraction of the retained constitutional rights of both
convicted prisoners and pretrial detainees." 303 [*1205] In refusing to bar the disputed practices, the
Court reiterated the Prisoners' Labor Union requirement of deference to prison officials based on their
expertise and the need for separation of judicial and administrative functions. 304 The Court also stressed
that "[t]here simply is no basis in this record for concluding that [the] officials have exaggerated their
response to these serious problems or that this restriction is irrational." 305 The strip and body cavity
searches, however, "instinctively [gave the Court] the most pause." 306 Measuring the searches against the
fourth amendment test of "reasonableness," 307 the Court emphasized that a jail is "a unique place fraught
with serious security dangers" and that inmate efforts at smuggling via body cavities "are documented in
this record and in other cases." 308 Despite the potential for "abusive" searches, the Court concluded that
"[b]alancing the significant and legitimate security interests of the institution against the privacy interests of
the inmates, such searches could be conducted even on less than probable cause."
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INHERENCY: BALANCING TEST BAD

Status quo balancing test fails to afford prisoners any protections
The balancing approach also is defective. By weighing the reasonableness of the law enforcement action
against the privacy claim, the balancing approach rejects the teaching of Katz that searches and seizures
occur when privacy is invaded whether or not the government's conduct is "reasonable" and tends to
constrict the effectuation of constitutional values. n101 To determine the reasonableness of governmental
conduct, courts applying the balancing approach often employ non-technical, common-sense concepts of
rationality and weigh them against privacy claims. n102 While [*92] common sense notions of normal or
generally acceptable police conduct might appear relevant in assessing whether or not "society is prepared
to recognize a privacy claim as reasonable," n103 a court utilizing this form of "rationality" often disposes
of the case on the theory that no "search" occurred without ever considering the issue of the fourth
amendment reasonableness or justification of the intrusion. Police conduct, reasonably acceptable in
general terms, effectively balances away the claim that a "search" occurred. Consequently, the balancing
approach risks denying fourth amendment consideration entirely in situations where privacy has clearly
been invaded but where ad hoc judicial comparisons determine that law enforcement concerns outweigh the
privacy interest.
Balancing tests always side with the penal institutiongiving prisoners zero rights
Palmer perpetuates the Court's commitment to the empirical interpretation of the Katz standard. Rather than
employing assumption of risk analysis to prison searches as it might have done, the Court employs the
balancing approach in disposing of Palmer's claim. Indeed, Hudson v. Palmer may represent the Court's
first full scale use of this analysis in assessing the fourth amendment validity of a claimed privacy
expectation. "Determining whether an expectation of privacy is . . . 'reasonable,'" according to the Palmer
Court, "necessarily entails a balancing of interests," specifically the "interest of society in the security of its
penal institutions and the interest of the prisoner in the privacy within his cell." The Court strikes the
balance in favor of the government based upon the perceived weight of empirical data establishing security
risks within penal institutions. Simply because the government's interest is judged substantial, the Court
concludes that Palmer has no reasonable expectation of privacy, thus negating his claim without ever
assessing it in terms of the underlying constitutional values. The Court concludes that prisoners have no
legitimate expectation of privacy, and thus fails to address the reasonableness of the particular intrusion in
Palmer's case. Justice O'Connor reaches the same result by blurring the "search" and "reasonableness"
issues and finding prison searches and seizures categorically "reasonable" because governmental interests
outweigh prisoners' privacy claims. n138 Like the Chief Justice, Justice O'Connor generates her conclusion
in light of empirical considerations establishing prison security needs, paying little attention to fourth
amendment values.
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INHERENCY: BALANCING TEST BAD

Balancing test is eliminating all protections for prisoners
The fourth amendment supposedly protects personal privacy and not governmental [*98] interests in law
enforcement. n144 The balancing approach poses substantial risk of "balancing away" privacy in favor of
accommodations to law enforcement in a variety of contexts, n146 without ever addressing the fourth
amendment reasonableness of the particular intrusion. The Palmer decision vividly illustrates the need for a
normative approach to fourth amendment issues of scope. The Court never explains why -- even granting
the full thrust of the government's claims -- Palmer must be denied that tiny residuum of privacy which
would permit him to litigate his claims of guard harassment, a blatant form of unreasonable governmental
conduct. When the issue is normatively couched in terms of whether Palmer's privacy claims should be
recognized in light of fourth amendment values, the Palmer result appears incorrect. n149 The systematic
employment of harassment searches, limited only by the self-restraint of prison functionaries, certainly
results in an "amount of privacy remaining to citizens . . . diminished to a compass inconsistent with the
aims of a free . . . society."
Wolfish and Palmer precedents gut fourth amendment balancing testsprisoners have no
protections
Bell v. Wolfish n159 is the Court's only significant examination of inmate privacy before Palmer. Wolfish
upheld, despite fourth amendment objection, jail practices of unannounced cell shakedowns and of visual
inspection of inmates' body cavities after contact visits with persons from outside the institution. The Court
admitted that the issue of body-cavity searches "instinctively gives us the most pause" and that "abusive"
searches of the person "cannot be condoned," but applied exactly the same reasoning process in upholding
both the shakedown and body inspection intrusions. Assuming arguendo that inmates retain some fourth
amendment rights, the Court weighed the privacy interest against the state interest in maintaining
institutional security. The Court held that both the cell shakedowns and the body-cavity intrusions were
reasonable as necessary security measures. Moreover, the Wolfish Court intimated that its analysis would
apply in both prison and jail contexts. Palmer rejects the Wolfish view that prisoners might retain privacy
in their cells. Rather than assess the reasonableness of shakedowns on a case-by-case basis, the Palmer
Court opts for a bright line rule denying privacy protection altogether. The virtues of a similar bright line
rule for personal searches are equally persuasive. Assuming that balancing is now the order of the day, the
government's interest in routinely searching the persons of inmates may be more "reasonable," in general,
than their claims that such action constitutes invasions of privacy. If so, the same logic which led to
rejecting Wolfish's position regarding the nature of privacy in cells may also lead to rejecting its notion that
personal privacy might be protected. The Wolfish Court was concerned that personal searches not be
"abusive." This concern is no guarantee, however, that the fourth amendment is available to remedy abuses
when they occur. The Palmer Court also warned against the evils of harassment searches, yet it denied
privacy protection to prisoners' papers and effects.
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HARM: SEARCHES DEHUMANIZING

Prison strip searches are dehumanizing
Rothenberg (J.D. candidate at American University) 2000 (Lance, Re-Thinking Privacy: Peeping
Toms, Video Voyeurs, And Failure Of The Criminal Law To Recognize A Reasonable Expectation Of
Privacy In The Public Space, 49 Am. U.L. Rev. 1127, footnote on p. 1136, Lexis)
Courts have recognized the opposite of voluntary disrobing, the compelled strip search within the prison
system, as a serious assault upon privacy and dignity even when justified by the circumstances. See, e.g.,
Marybeth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (describing prison strip searches
"involving the visual inspection of the anal and genital areas as "demeaning, dehumanizing, undignified,
humiliating, terrifying, unpleasant, embarrassing, repulsive, [and] signifying degradation and submission'"
(citation omitted)). The Seventh Circuit concluded that "in short, we can think of few exercises of authority
by the state that intrude on the citizen's privacy and dignity as severely as the visual anal and genital
searches practiced here."
Body-cavity searches are the greatest personal indignity
Justice Stevens, 79 (BELL, ATTORNEY GENERAL, ET AL. v. WOLFISH ET AL., No. 77-1829,
SUPREME COURT OF THE UNITED STATES, 441 U.S. 520; 99 S. Ct. 1861; 60 L. Ed. 2d 447; 1979
U.S. LEXIS 10, January 16, 1979, Argued, May 14, 1979, Decided, CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT)
The body-cavity search -- clearly the greatest personal indignity -- may be the least justifiable measure of
all. After every contact visit a body-cavity search is mandated by the rule. The District Court's finding that
these searches have failed in practice to produce any demonstrable improvement in security, is hardly
surprising. Detainees and their visitors are in full view during all visits, and are fully clad. To insert
contraband in one's private body cavities during such a visit would indeed be "an imposing challenge to
nerves and agility." Ibid. There is no reason to expect, and the petitioners have established none, that many
pretrial detainees would attempt, let alone succeed, in surmounting this challenge absent the challenged
rule. Moreover, as the District Court explicitly found, less severe alternatives are available to ensure that
contraband is not transferred during visits. Weapons and other dangerous instruments, the items of greatest
legitimate concern, may be discovered by the use of metal detecting devices or other equipment commonly
used for airline security. In addition, inmates are required, even apart from the body-cavity searches, to
disrobe, to have their clothing inspected, and to present open hands and arms to reveal the absence of any
concealed objects. These alternative procedures, the District Court found, "amply [satisfy]" the demands of
security. Id., at 148. In my judgment, there is no basis in this record to disagree.
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HARMS: DEHUMANIZATION IMPACTS

Dehumanization is beyond calculation
Montagu and Matson (Chair of Anthropology at Princeton and Professor of American Studies at
Hawaii) 83 (Ashley and Floyd, The Dehumanization of Man, preface, 1983)
The contagion is unknown to science and unrecognized by medicine (psychiatry aside); yet its wasting
symptoms are plain for all to see and its lethal effects are everywhere on display. It neither kills outright nor
inflicts apparent physical harm, yet the extent of its destructive toll is already greater than that of any war,
plague, famine, or natual calamity on record -- and its potential damage to the quality of human life and the
fabric of civilized society is beyond calculation. For that reason, this sickness of the soul might well be
called the 'Fifth Hourseman of the Apocalypse." Its more conventional name, of course, is dehumanization.
Dehumanization is the root of all evilit causes genocide and oppression
Katz (Professor of Law at Albany) 97 (Katheryn, The Clonal Child: Procreative Liberty And Asexual
Reproduction, 8 Alb. L.J. Sci. & Tech. 1, p. 18, Lexis)
It is undeniable that throughout human history dominant and oppressive groups have committed
unspeakable wrongs against those viewed as inferior. Once a person (or a people) has been characterized as
sub-human, there appears to have been no limit to the cruelty that was or will be visited upon him. For
example, in almost all wars, hatred towards the enemy was inspired to justify the killing and wounding by
separating the enemy from the human race, by casting them as unworthy of human status. This same
rationalization has supported: genocide, chattel slavery, racial segregation, economic exploitation, caste and
class systems, coerced sterilization of social misfits and undesirables, unprincipled medical
experimentation, the subjugation of women, and the social Darwinists' theory justifying indifference to the
poverty and misery of others.
Dehumanization inhibits democracy
Schott (University of Copenhagen) 04 (Robin May, Politics and the Art of Mourning, FORUM for
gender & culture, http://www.forum.kvinfo.dk/english/article.epl?id=3358725)
Conceptually, what is at stake is not only that some people are treated as humans and others are
dehumanized. But that "dehumanization becomes the condition for the production of the human to the
extent that a "Western" civilization defines itself over and against a population understood as, by definition,
illegitimate, if not dubiously human." For democratic culture to flourish, we must engage in the critical task
of reconceiving the human.
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Dignity is an overriding value
Wright (Professor of Law) 95 (George, Consenting Adults: The Problem Of Enhancing Human Dignity
Non-Coercively, 75 B.U.L. Rev. 1397, Lexis)
As we have seen, the dignity of the person, however this might be conceived, is often thought to be of
special value. Many of us are prepared to pay some price in wealth or efficiency to preserve dignity.
Procedural due process rights, for example, are often intended not merely to maximize wealth, utility,
accuracy, or efficiency, but also to protect the value of the claimant's human dignity. n78 It may be
important to allow someone to have her say, even if we already know the right outcome in her case. Dignity
seems to fall into the class of things that is said to be intrinsically good or intrinsically valuable.
Continues... We can say that ultimate values explain or justify (other) intrinsic values, and "need not be
explained or be justified by reference to (their contribution to) other values." n85 Human dignity, for
example, is not to be justified or explained by, for example, its contribution to the efficiency of markets or
to maximizing utility. Clearly, we should be able to do better in explaining merely instrumental values than
by pointing only to other instrumental values; some reference to an intrinsic good should be possible for a
full and satisfactory explanation. And even some things that are intrinsic goods may themselves be only
conditionally good, or in need of further explanation or support. Subjective pleasure, for example, might be
thought of as an intrinsic good. People might seek it for its own sake, and not as a means. But we might
find happiness or pleasure to be of lesser or even of negative value if it is obtained by acting viciously. n86
A full, deep accounting of the value of knowledge might require reference to human dignity. It is possible
to more fully justify knowledge in terms of human dignity. But in contrast, human dignity is an ultimate
value, or an ultimate intrinsic value, in that it is hard to see how we could explain why human dignity is
rationally preferable to indignity by referring to knowledge, happiness, freedom, consent, or any other
value. The value of consent, whether intrinsic or instrumental, requires further, deeper explanation and
justification in a way that human dignity does not. In particular, dignity underlies and limits the role and
value of consent; consent does not in turn underlie or limit the role and value of human dignity. This is so
even though human dignity usually requires a good deal of autonomy of choice. A political prisoner like
Nelson Mandela might have dignity, but not freedom, at least in a rare case. n87 Notice in particu[*1425] lar that one cannot "abuse" one's human dignity while retaining one's human dignity. There is no
such thing as an immoral reflection of, precisely, human dignity. Continues... We might try, in a sense, to
"explain" the value of human dignity. n88 But this would quickly exit the realm of [*1426] legal, political,
and moral talk, and enter the realm of metaphysics. Continues.... No champion of human freedom could
possibly sanction this potential for repression and intolerance. Certainly this Essay does not argue for the
coercive overriding of consent, or refusal to consent, in the name of dignity or rationality. That would be
not only unjust and self-defeating, but largely self-contradictory. Overriding ordinary consent or refusal to
consent, on any scale, is often itself irrational, and tends to undermine the dignity of the affected parties.
Continues...VII. Consent, Autonomy, and the Poor As a matter of basic justice, it seems clear that
subordinated and outcast groups would be best off if their human dignity were consistently respected. But
in the meantime, their circumstances would improve with even modest changes in how the law judges their
consent or refusal to consent. We have already referred to some of the issues of dignity and consent in the
context of Mrs. Rivers's purchase of burial insurance for her children. n105 Let us briefly take up these
issues again in light of our discussion of Kant and autonomy. We have seen that a crucial Kantian moral
duty involves promoting the autonomy or rational capacities of other persons, particularly in the case of
those most in need of such assistance.
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Dehumanization is genocidal
Rylko-Bauer (Professor of Anthropology at MSU) 05 (Barbara, Lessons about Humanity and Survival
from My Mother and from the Holocaust, Anthropological Quarterly 78.1, p. 34-37, Project MUSE)
Dehumanization depends, in part, on the categorizing and labeling of targeted groups as "other,"
legitimized by science, religion, or mythwhat Hinton (2002) calls "manufacturing difference." In Nazi
Germany, pseudo-scientific racial typologies were interwoven with a mythic Aryan past and a vision of a
master race (Herrenrasse) to support "an evolutionary history of all humankind, in which 'the fittest' were
destined to conquer and replace the 'unfit,' providing the capstone of a seamless rationale for a politics of
human inequality" (Wolf 1999:237). Historian Raul Hillberg (1985, 1989) has detailed how bureaucracy,
coupled with the illusion of legality, provided the mechanisms for normalizing both dehumanization and
brutality in Nazi policies and practice. As Eric Wolf points out (1999:253-54, citing Kelman 1973), these
three factorsthe legal [End Page 34] authorization of violence, the creation of bureaucratic structures for
routinizing violence, and finally dehumanization of the otherbecame the "proximate conditions required
to remove the customary restraints on open violence against individuals and groups." In fact, with the Jews,
the process of dehumanization was taken to its extreme, for they were labeled not just as subhuman, but as
a threat to humanityas polluters, as a "social virus." The role of dehumanization has been documented in
many other instances of mass violence and genocide. Continues...And evidence repeatedly shows that
almost always, individual perpetrators act within a larger socio-political structure that is complicit in, and
even promotes, such dehumanization and resulting actions.17 As Susan Sontag (2004) notes, the simple act
of taking photographs of Iraqi prisoners being tortured at Abu Ghraib (which were then voyeuristically
viewed by others), was part and parcel of their dehumanization, an act of violence that facilitated further
violence. But what of other events and social processes, characterized by violence that is not only physical
or symbolic or political, but also social and structural in nature, and that results in great suffering, injustice,
and death? Hartman quotes Terrence des Pres, in stating that the Holocaust has sensitized us, for "after the
Holocaust, 'a new shape of knowledge invades the mind,' one that opens our eyesbeyond the Holocaust
to the global extent of political misery" (2002:102). And so, we must ask: How is it possible for people
to collectively allow others to die on such massive scalesas happens with extreme poverty, starvation,
treatable diseases (tuberculosis and AIDS, alone, kill almost 15,000 people daily worldwide), as well as the
more obvious cases of [End Page 35] political oppression? Especially in this era of ready global
information, communication, and reach? Dehumanization is a critical stepperhaps the linchpinin all
these processes, and goes hand in hand with both individual and collective denial of what is happening
around us (Cohen 2001). Nancy Scheper-Hughes (2002:369) writes of "small wars and invisible genocides"
that occur daily against those who are powerless but are seen as a threat to the dominant social and moral
order. She situates these along a "genocide continuum" which reflects "our human capacity to reduce others
to nonpersons, to monsters, or to things" and thus "gives structure, meaning, and rationale to everyday
practices of violence." The comparative and historically-grounded perspective of anthropology affords us
the means to recognize that dehumanization is both a precondition and a part of many sorts of violence, and
more significantly, that it is a pervasive force in our modern world. The leap from everyday tolerance of
racism, poverty, exclusion, and oppression to more spectacular eruptions of violence is not as great as we
would like to think. In fact, Scheper-Hughes and Bourgois (2004:12) suggest that "preparation and
schooling in 'how to behave' during a holocaust or genocide takes place in very normal social contexts and
institutions unfolding around us every day." The acceptance of dehumanization as a "natural" part of the
social order and of human historya normalization of this extreme manifestation of "othering"is a part
of this process.
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HARMS: SEXUAL ABUSE

Cavity searches are used for the sexual gratification of guards
Gardner (Professor of Law, University of Nebraska) 85 (Martin R., Journal of Criminal Law &
Criminology, Hudson v. Palmer -- "Bright Lines" But Dark Directions for Prisoner Privacy Rights, pp. )
Certain morally offensive body searches also appear to be unprotected. Suppose male guards routinely
conduct body cavity searches and manual patdowns of the genital areas of female inmates. 204 The
government argues that such intrusions are necessary for security purposes 205 and cannot entirely be done
by female guards due to possible employment discrimination problems. 206 Inmates object to the intrusions
by male guards on two grounds: such intrusions by males are per se violative of constitutional rights and
the intrusions are often conducted in bad faith either to humiliate the inmate or to sexually gratify the
guard.
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HARMS: NON-VIOLENT OFFENDERS ALSO TARGETED

Cavity searches without probable cause are conducted on harmless people
People for the American Way, 2004 (Independent Judiciary, Confirmed Judges Confirm Our Worst
Fears, online: http://www.pfaw.org/pfaw/general/default.aspx?oid=13524)
These four judges pointedly noted the great personal indignity of the strip searches and body cavity
searches conducted in this case and pointed out that they were conducted against harmless individuals.
For example, one of the plaintiffs had been arrested because of an unpaid six-year-old traffic ticket that his
son had received when he borrowed the fathers car years earlier; the father was held overnight and strip
searched twice. Id. Another plaintiff had been detained when she called for police assistance after a car
accident and was wrongly arrested on the basis of an erroneous outstanding warrant for a probation review.
She was . . . strip searched twice.
Non-violent offenders also targeted
Fernandez and Salter, 2003 (Elizabeth and Stephanie, staff writers, The San Francisco Chronicle, San
Francisco Jails: Handling Prisoners Stripped of Dignity, online:
http://www.spr.org/en/news/2003/1116.html)
Like Lazaneo, many of the people interviewed by The Chronicle had little or no criminal history and were
arrested on misdemeanors or nonviolent offenses, typically public intoxication. Most of their cases, if
charges were formally filed, were dismissed. Nonetheless, they were subjected to visual body cavity
searches described as deeply degrading and traumatic, and most were confined for long periods in safety
cells.
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HARMS: BOTH JAILS AND PRISONS

Jails are no different than prisons under the Wolfish doctrine
The Wolfish opinion suggests that privacy issues in jails and prisons are analytically identical. Although
many jail inmates are not yet convicted, they enjoy no enhanced privacy protection through the
presumption of innocence, a principle having "no application to a determination of the rights of a pretrial
detainee during confinement before his trial has even begun." The privacy interests of detainees in jails,
whether convicted or not, appear no different than those of convicted prisoners. Moreover, security needs
are at least as substantial in jails as in prisons. Thus, Palmer implies a denial of fourth amendment
protection to jail detainees because their privacy claims are outweighed by the governmental interest in
maintaining security. Like their convicted and imprisoned counterparts, jail inmates are unlikely to prevail
with due process privacy claims. The Wolfish Court rejected the notion that the desire of detainees "to be
free from discomfort" rises to the level of a "fundamental liberty interest" -- a necessary predicate to trigger
the due process right to privacy. n180 While due process privacy protection was unavailable, Wolfish did
recognize a liberty interest of a different nature in unconvicted detainees to be free from "punishment"
while incarcerated in jail. n181 Convicted inmates serving jail sentences can be punished as long as eighth
amendment requirements are satisfied. n182
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HARM: AT SEARCHES ONLY VISUAL

The lack of physical contact during visual cavity searches makes them no less degrading
Visual body cavity searches, for the purpose of this article, include only searches where there is a visual
inspection of a person's genitals or anus, but no physical contact or intrusion. As mentioned above, visual
body cavity searches have been classified by some as being within the definition of a strip search. Other
jurisdictions consider the visual body cavity search as being an independent category level between the
basic strip search and the manual body cavity search. n9 Still others consider a visual search of the genitals
or anus to be within the same class as searches, where a physical intrusion into an orifice takes place, and
call both "body cavity searches." n10 No matter what category visual body cavity searches are placed in,
even absent physical contact, they are considered "demeaning, dehumanizing, undignified, humiliating,
terrifying, unpleasant, embarrassing, repulsive, [and] signifying degradation and submission ..." n11
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HARMS: KEY FOURTH AMENDMENT ISSUE

Cavity searches are a key fourth amendment issue
Covey (Professor at Whittier Law School), 05 (Russell, Interrogation Warrants, 26 Cardozo L. Rev.
1867, p. 1881-4, Lexis)
In many cases properly characterized as Fourth Amendment "searches," the real privacy intrusion stems
from the indignity suffered by the individual as a result of the government conduct and the corresponding
loss of personal autonomy or bodily integrity, rather than any revelation of "secret" information.
78 [*1883] Fourth Amendment dignitary interests have been found to be implicated by the mere act of
bodily touching, as well as by other, more intrusive conduct, such as where the state seeks to "pierce the
skin," 80 probe into or extract substances from deep within the body, 81 or collect bodily fluids such as
urine or semen. 82 Strip searches and body cavity searches provide perhaps the paradigmatic examples of
state conduct that threatens dignitary interests. 83 These dignitary interests are arguably even more central
to Fourth Amendment concerns than informational privacy.
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HARMS: AT DNA ALTERNATE CAUSALITY

Cavity searches are worse than DNA extraction
Kaye (Law Professor Arizona State) 01 (D.H., The Constitutionality Of Dna Sampling On Arrest, 10
Cornell J. L. & Pub. Pol'y 455, p. 498-500, Lexis)
DNA databases help solve crimes, and they help avoid false convictions. That is what has led the federal
government to promote convicted offender databases in the states and to earmark funds for reducing the
backlog of unanalyzed DNA samples from crime-scenes and victims. 190 The difficulties of constitutional
inquiries into "primary purpose" notwithstanding, the stark truth is that DNA typing of arrestees appeals to
some politicians, law enforcement officials, and victims of crimes because it promises more efficient
identification of criminals and more effective deterrence of crimes. Yet, in an effort to fit DNA databases
into existing categories, the analysis thus far has largely ignored this most powerful reason for establishing
databases. We have seen that the Fourth Amendment permits the acquisition, for administrative purposes, of
DNA records on individuals placed in custody, but that existing exceptions to the warrant requirement may
not extend beyond such recordkeeping. Nevertheless, the existing exceptions to the warrant requirement are
not ancient specimens of an extinct species frozen in amber. They are living creations whose structures
continue to evolve and whose number is not fixed. Although new exceptions are not created lightly, 191
there are powerful crime-control reasons for a state to establish DNA databases for convicted offenders or
arrestees, the databases can be structured to respect most individual privacy interests, they can be
administered fairly, and they can be accommodated with a specific and limited [*499] exception to the
warrant requirement. Consequently, it is neither heretical nor Quixotic to pose the question whether such an
exception should be recognized. The answer turns on the same type of balancing that the Court performs in
special-needs cases. The pivotal factors are the gravity of the privacy invasion, the practicality and value of
securing a warrant and requiring individual suspicion, and the importance of the government's interest. 192
The attenuated privacy interest. As discussed in Part IV.A, the physical intrusion is minimal, especially if
the surface of the skin is not penetrated. Certainly, it is far less offensive than the body cavity searches of
arrestees upheld in Bell v. Wolfish. 193 Furthermore, if there is adequate assurance that genotyping of only
"vacuous" loci can take place, no additional privacy interests are implicated. 194 Finally, there is no
unjustified detention of the person or entry into the home or other property. In sum, if the collection and
storage of the genetic information is properly structured, the effect on the security of "persons, houses,
papers, and effects" is de minimis. 195
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HARMS: AT CROSS-GENDER ALTERNATE CAUSALITY

Note: These cards set up a short Butler critique in the 2AC. You just need an impact saying that heteronormative assumptions about biological sex categories are bad. You could also just agree that crossgender searches are bad but argue that the plan dramatically cuts down on all searches so you still solve.
Protection from cross gender searches perpetuates notions of biological sex difference
McGowan (Attorney) 03 (Sharon, The Bona Fide Body: Title VII's Last Bastion of Intentional Sex
Discrimination, 12 Colum. J. Gender & L. 77, p. 101-5, Lexis)
The vigilance with which courts protect bodies, and particularly women's bodies, from cross-sex
observation demonstrates the extent to which courts ascribe without hesitation to the view that there are
natural and biological differences between men and women. Yet, by deciding which "parts" should be
understood as "private," courts actually create and reinforce the "natural" lines of demarcation between
"men" and "women." As Monique Wittig explained, the extent to which society has given cultural and
sexual meaning to particular parts of the anatomy is a reflection of the ways in which "men" and "women"
have been classified along heterosexual and reproductive lines: Sex is taken as an "immediate given," a
"sensible given," "physical features," belonging to a natural order. But what we believe to be a physical and
direct perception is only a sophisticated and mythic construction, an "imaginary formation," which
reinterprets physical features (in themselves as neutral as [*102] any others but marked by the social
system) through the network of relationships in which they are perceived. 112 It is no accident that
women's biological differences or "private parts" correspond to those areas of their bodies related to
reproduction. The very fact that certain body parts are named and that significance is attached to specific
particular biological variations demonstrate the extent to which societal norms rely on the presumption of
heterosexuality and female reproductivity. Once these normative assumptions are revealed, it becomes clear
that sex should be understood as a political category rather than the mere catch-all phrase by which
"natural" or biological differences are merely recognized. 113 Michel Foucault acknowledges the fallacy of
the idea that "sex" is a naturally occurring category by commenting that "the notion of 'sex' made it possible
to group together, in an artificial unity, anatomical elements, biological functions, conducts, sensations, and
pleasures, and it enabled one to make use of this fictitious unity as a causal principle...." 114 In the face of
these challenges to the notion that there is such a thing as "sex," Judith Butler has suggested that it may be
altogether futile to build an identitarian movement around "women" when it is unclear "whether that
femaleness is really external to the cultural norms by which it is repressed." 115 One need not abandon the
category of "women" as a meaningful concept altogether, however, to recognize that paternalistic laws,
rather than the laws of nature, have "sanctioned and required the female body to be characterized primarily
in terms of its reproductive function." 116 In other words, our understanding of which parts of the body
[*103] are private and worthy of protection from view--breasts versus feet--cannot be divorced from this
system of heterosexuality and reproduction. 117 To the extent that these differences seem real to the people
involved, policies prohibiting cross-sex observation may not seem problematic. Anyone interested in
debunking traditional views of and paternalistic attitude towards women, however, should question why
courts have been so eager to defend women's modesty while, at the same time, dismissing identical
concerns raised by men as frivolous. Judge Easterbrook, for example, dismissed the notion that male
prisoners are subjected to a cruel invasion of privacy when viewed by female guards, noting that male
athletes who encounter female journalists in the locker room after a game suffer no injury to their psyche.
118 The majority of courts agree that the harm suffered by women as a result of cross-sex observation is
significantly worse than any harm suffered by men. Yet, in doing so, courts actually reinforce the
boundaries of sexual modesty that women are compelled to respect.
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HARMS: AT CROSS-GENDER ALTERNATE CAUSALITY

Concerns about cross-gender searches naturalize sex roles and ignore the same-sex abuse
McGowan (Attorney) 03 (Sharon, The Bona Fide Body: Title VII's Last Bastion of Intentional Sex
Discrimination, 12 Colum. J. Gender & L. 77, p. 127, Lexis)
Courts have used the "natural" language of biology in order to allow real (or simply assumed) customer
preferences--for that is ultimately what they are--to trump claims to equal employment opportunity
regardless of sex. This same language about the "naturalness" of the races resulted in laws that prevented
African-Americans and whites from mingling socially 228 or genetically. Rather than acquiescing to these
deeply entrenched and seemingly unquestionable truths about the "differences" between men and women,
we should demand a transformation in our cultural practices so that individuals of different sexes can
conduct business or provide services in a manner that does not result in feelings of violation or degradation.
Insisting that cross-sex interactions inherently inflict dignitary harm naturalizes attitudes about sexual
predation and victimization under the guise of accommodating privacy. So long as cross-sex observation is
equated with violation, women and men will continue to be limited by predetermined roles of social
interaction and involvement in both the marketplace and the community at large. Perhaps more importantly,
physical harm and dignitary violations will continue to go unaddressed as the reality of same-sex abuse is
ignored.
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SOLVENCY: BUREAU OF PRISONS

The Bureau of Prisons has been given the authority to decide upon the scope of the searches
The Supreme Court, followed by many lower courts, has indicated its willingness to accord deference to
prison officials' administrative decisions. n78 One of those decisions frequently deferred to is whether or
not to enforce a body cavity search policy. The rationale for the deference is that prison officials are experts
in the area of prison administration and therefore the court should not substitute its judgment for that of the
expert. This rationale loses force where there are charges of bad faith enforcement of a policy or an
exaggerated response to security concerns. n80 Judicial deference cannot "insulate from review actions
taken in bad faith and for no legitimate purpose." n81 When judicial deference is combined with a
balancing test that examines only the government's objective and not the effects upon the prisoner, the
result is severely limited constitutional protection for the prisoner. In Wolff v. McDonnell the Court said in
an often quoted phrase that there must be "mutual accommodation" between the prison institution and the
prisoners. n82 There is no mutual accommodation where courts refuse to look carefully and meaningfully
at the practices engaged in.
The Bureau of Prisons has authority over cavity searches
Underlying all of these cases is the question of how involved the court should become in the policymaking
of prisons. In Wolfish, the Court declared its intent to follow the "hands-off" approach by allowing the
branch of government in which the authority is lodged to "devise the plan." The problem with this approach
is that prisoners are being denied even the limited constitutional rights they once had. By giving nearly
absolute deference to prison officials' decisions, the impact of those decisions upon inmates is dangerously
underexamined.
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SOLVENCY: BUREAU OF PRISONS

Bureau of Prisons rule are what allow body cavity searches now
MacGregor (Editor, Columbia Journal of Law and Social Problems) 03 (36 Colum. J.L. & Soc. Probs.
163, Deborah, ARTICLE: Stripped of All Reason? The Appropriate Standard for Evaluating Strip Searches
of Arrestees and Pretrial Detainees in Correctional Facilities).
In analyzing the policy requiring strip or body cavity searches after every contact visit with a person from
outside the institution, the Court acknowledged that this practice "instinctively gives us the most pause."
Yet it found the policy constitutional under the circumstances. The Court noted that the Fourth Amendment
governed the test of reasonableness for searches and stated that the test requires "a balancing of the need for
the particular search against the invasion of personal rights that the search entails. Courts must consider the
scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and
the place in which it is conducted." In applying this Bell-Balancing test, the Court noted "a detention
facility is a unique place fraught with serious security dangers." n44 While the Court acknowledged that
occasionally a guard might conduct a search "in an abusive fashion" and that "such abuse cannot be
condoned," n45 it is important to recognize that the Court was upholding an entire policy against challenge,
as opposed to any single search. In the course of the opinion, the majority did not address what level of
cause was required to uphold policies of strip-searching detainees and inmates in the future. It simply
stated: "We deal here with the question whether visual body-cavity inspections as contemplated by the
MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate
security interests of the institution against the privacy interests of the inmates, we conclude that they can."
n47 Justice Powell concurred in part in Bell, but dissented from the holding on body-cavity searches. n48
He noted that the majority failed to adopt a level of cause required to strip-search a detainee and
recommended reasonable suspicion as the appropriate level. n49 Powell would have found no reasonable
suspicion under the facts of Bell, possibly because of the lack of individualized suspicion. n50 The Court
upheld strip-searches conducted every time any pretrial detainee enjoyed a contact visit, regardless of who
the detainee was or the crime for which he was being detained. n51 There is absolutely no individualized or
particularized justification required under this policy. Continues... Since the facts at issue in Bell suggest
there was very little real danger of inmates being able to obtain weapons or contraband during a contact
visit, it is not irrational to argue that the Court was practicing general judicial deference to prison officials'
decisions, rather than finding narrowly that reasonable suspicion for a search existed after a contact visit.
Block v. Rutherford n56 enforced the view that the Court was stressing judicial deference to prison officials
in Bell. The Court held in Block that a jail could completely ban contact visits for the detainees in the
facility, stating that such a policy was a reasonable security measure. The Court's language highlights its
deference towards the jail officials: It is not unreasonable to assume . . . that low security risk detainees
would be enlisted to help obtain contraband or weapons by their fellow inmates . . . . Additionally,
identification of those inmates who have propensities for violence, escape, or drug smuggling is a difficult
if not impossible task, and the chances of mistaken identification are substantial. These burdens . . . are
made even more difficult by the brevity of detention and the constantly changing nature of the inmate
population. Or a complete prohibition could reasonably be thought necessary because selectively allowing
contact visits to some -- even if feasible -- could [*174] well create tension between those allowed contact
visits and those not. The Court noted that Bell had upheld the blanket policy of strip-searches after every
contact visit, and that "petitioners' flat prohibition on contact visits cannot be considered a more excessive
response to the same security objectives. . . . We have emphasized that we are unwilling to substitute our
judgment on the difficult and sensitive matters of institutional administration and security for that of [those
running the institutions]." n58
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SOLVENCY: AT SEARCHES KEEP PRISONS SAFE

Cavity searches do not increase securityit is almost impossible to conceal anything dangerous
The physical limitations of the human body with regard to body cavity searches must also be addressed.
The physical difficulty of hiding contraband in a body cavity negates any significant security threat. The
anal and vaginal openings are very small, making concealment of a weapon of any size or narcotics of any
quantity virtually impossible. n83 In Wolfish, Justice Marshall in dissent pointed out that inmates wore onepiece jumpsuits with zippers in the front which would force inmates to undress at least to the torso to insert
anything into a body cavity. An inmate's ability to undress and conceal any object in the Wolfish case
would be virtually impossible since the contact visits subject to the searches were held in continuously
monitored, glass-enclosed rooms. n84 Justice Marshall also pointed to the medical testimony given that
"inserting an object into the rectum is painful and 'would require time and opportunity not available in the
visiting areas.'" The feasability of concealing contraband of any significance in the body cavity is a
consideration that must be weighed into the balancing test for determining the validity of body cavity
searches. If, as indicated, the ability to conceal contraband is so nearly impossible, there is no justification
for the policy. A court must address whether the fear of concealment of contraband is a realistic fear.
Perhaps the [*752] threat is more fiction than fact. If so, the intrusiveness of the search far outweighs the
mythical threat imposed on prison security.
Cavity searches are ineffective at detecting contraband
A third practical issue for the courts to consider is whether the visual body cavity search can actually detect
anything concealed in the anus or vagina. Medical testimony introduced in the Hurley case showed that an
object secreted past the sphincter muscles in the rectum cannot be detected upon usual inspection unless
some of it protrudes. n86 The district court in Wolfish found the searches entirely ineffective. n87 Little
evidence has been introduced in any of the cases proving success in finding concealed objects during body
cavity searches. n88 The search policies have been found constitutional without proof of their effectiveness.
Body cavity searches that are done without significantly furthering any prison security interest are entirely
unreasonable and violate prison inmates' fourth amendment rights.
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SOLVENCY: PROBABLE CAUSE BEST

Only probable cause can divide between fact and hunch
Douglas, (Supreme Court Justice) 68 [392 U.S.C., 35], TERRY v. OHIO, 392 U.S. 1 (1968)) [392 U.S. 1,
35-9]
I agree that petitioner was "seized" within the meaning of the Fourth Amendment. I also agree that frisking
petitioner and his companions for guns was a "search." But it is a mystery how that "search" and that
"seizure" can be constitutional by Fourth Amendment standards, unless there was "probable cause" to
believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a
crime was about to be committed. The opinion of the Court disclaims the existence of "probable cause." If
loitering were in issue and that [392 U.S. 1, 36] was the offense charged, there would be "probable cause"
shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the
officer had "probable cause" for believing that that crime was being committed. Had a warrant been sought,
a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing
of "probable cause." We hold today that the police have greater authority to make a "seizure" and conduct a
"search" than a judge has to authorize such action. We have said precisely the opposite over and over again.
[392 U.S. 1, 37] In other words, police officers up to today have been permitted to effect arrests or
searches without warrants only when the facts within their personal knowledge would satisfy the
constitutional standard of probable cause. At the time of their "seizure" without a warrant they must possess
facts concerning the person arrested that would have satisfied a magistrate that "probable cause" was
indeed present. The term "probable cause" rings a bell of certainty that is not sounded by phrases such as
"reasonable suspicion." Moreover, the meaning of "probable cause" is deeply imbedded in our
constitutional history. As we stated in Henry v. United States,: "The requirement of probable cause has
roots that are deep in our history. The general warrant, in which the name of the person to be arrested was
left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive
practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial
control, since no showing of `probable cause' before a magistrate was required. . . . . . "That philosophy
[rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American
decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even
`strong reason to suspect' was not adequate to support a warrant [392 U.S. 1, 38] for arrest. And that
principle has survived to this day. . . . ". . . It is important, we think, that this requirement [of probable
cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen.
If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . .
. And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an
arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This
immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen."
The infringement on personal liberty of any "seizure" of a person can only be "reasonable" under the
Fourth Amendment if we require the police to possess "probable cause" before they seize him. Only that
line draws a meaningful distinction between an officer's mere inkling and the presence of facts within the
officer's personal knowledge which would convince a reasonable man that the person seized has
committed, is committing, or is about to commit a particular crime. "In dealing with probable cause, . . . as
the very name implies, we deal with probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar
v. United States,
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SOLVENCY: PROBABLE CAUSE BEST

Probable cause is the best standard of search because of its history and because reasonableness
causes confusion in the law where officers and people dont know whether a search is reasonable.
This type of confusion erodes the Fourth Amendment and the liberty of the United States.
Reamey, 1992 (G. S. When "special needs" meet probable cause: denying the devil benefit of law. Hastings
Constitutional Law Quarterly v. 19, Winter 1992)
Stated differently, the special needs cases decided recently have embraced a barely disguised formalism.
They appear to abandon simplistic reliance on probable cause and warrants in favor of a more sophisticated
and substantive analysis that will more often produce justice in the given case.211 In reality, however, they
substitute the incantation "special needs" for a more predictable probable cause and warrant analysis that
was more clearly within the contemplation of the Framers and backed by decades of decisions. It may seem
peculiar to argue that probable cause is more predictable than some other form of analysis. Considerable
precedent exists, however, construing what probable cause means in various contexts. Even more important
are those numerous cases in which the Court has held that no probable cause existed. Because all of these
cases have necessarily relied heavily on the facts the officers knew when they decided to arrest or search, a
relatively complete "proffle" of probable cause exists. The profile is not easily accessed, but is reasonably
well understood by the actors in the criminal justice system. This wide spread understanding comes from
decades of judicial decision-making. Perhaps after a similar number of decades of decisions, special needs
will be as predictable as probable cause, but in the interim it will create considerable confusion and a
growing contempt for a system unable or unwilling to make clear its constitutional limitations. Or, "special
needs" may acquire no substantive content and be used by courts needing a convenient way to circumvent
the Fourth Amendment. In either event, special needs will not just be a contemporary tool for flexible
decision making as probable cause was before it. Probable cause decisions not only have a history; they
also reflect a good faith effort by the Supreme Court to define the contours of probable cause. Sometimes
probable cause was found to exist, but often it was found lacking. To date, special needs have never been
found lacking. Not only courts will suffer from the lack of consistency and predict ability of the new
special needs and reasonableness analyses. Those charged with the enforcement of the law will be unable to
discharge their duties. Citizens who are required to know the law or suffer its consequences will be
imperiled by unavoidable uncertainty. Only after the Court tells the next targeted subclass that its
previously held expectation of privacy was unreasonable, will it be able to modify its behavior to accurately
coincide with what the Supreme Court believes is reason able. Until it is told, that next subclass can only
wait and wonder how its privacy rights will weigh in the scales. If those rights are always found to weigh
lightly, there is a measure of predictability for the police and citizens, but it is bought at a high price. As
one author warns: Before our courts decide to abandon the fourth amendment law that has protected the
right of people to find private places and to be left alone, the need for these new law enforcement measures
ought to be more clearly demonstrated. Otherwise, the most important victim of illegal drugs may be the
liberty of a nation
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AT CRITIQUES: NEED POLICY SOLUTIONS

The brutal reality of prisons means that they need policy solutions; they will not change simply
through imagination
Willens (JD, Harvard Law) 87 (37 Am. U.L. Rev. 41, Jonathan, ARTICLE: STRUCTURE, CONTENT
AND THE EXIGENCIES OF WAR: AMERICAN PRISON LAW AFTER TWENTY-FIVE YEARS 1962 1987. *).
The second piece of the puzzle is this: prisons exist as we build them, but they also act on their own. They
hold, feed, shelter, accept, and release prisoners. These are essential functions of prison; it's hard to imagine
a prison without them. But American prisons do more. They beat, stab, rape, isolate, humiliate, terrify,
inspect, objectify, disable, demoralize, brutalize, and discipline prisoners. n26 These are not essential
functions; the world is full of prisons without them. n27 We are accustomed to the claim that prisons exist
for other purposes, such as deterrence, retribution, and rehabilitation, and that their violence and cruelty
amount to a failure. But it is not the ambiguous purpose of prisons that is the problem. It is the prisons
themselves. n28 The prisons are out there in the world and we cannot change them simply by imagining
them differently.
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AT: SUBSTANTIVE PRIVACY RIGHTS CP

Granting prisoners substantive privacy rights would not solvecourts would just find that prisoners
had no fundamental interests at stake
Although Palmer seems to undercut the fourth amendment basis for rights to privacy in either the
shakedown or personal search contexts, inmates arguably might retain privacy protection under substantive
due process doctrine. n169 Palmer does not specifically address the issue, n170 but the Court would
probably reject due process privacy claims for the same reasons it dismissed the fourth amendment privacy
argument. If society is unwilling to recognize the reasonableness of inmate claims to protected privacy as a
fourth amendment matter, these claims would not suddenly become tenable under a due process doctrine
that requires that a personal right be deemed "fundamental" or "implicit in the concept of ordered liberty"
before qualifying as protected privacy. In light of Palmer, inmates appear to lack such "fundamental"
interests. Moreover, they may be unable to show a sufficient "liberty" interest as the necessary due process
predicate for the right to privacy. n172 The Court has held in procedural due process contexts that prisoners
possess no constitutionally based liberty interest once convicted and sentenced to prison. n173 Therefore,
prisoners' claims of a substantive right to privacy grounded in due process likely would be rejected by the
Court. Palmer itself implicitly denies the viability of due process privacy. The Court intimated that any
such claim merged with the fourth amendment issue.
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AT: PRIOSNERS CAN SUE CP

Constitutional remedies that would be effective outside of prisons will fail because courts will find in
favor of the government
If the analysis of this Article is correct, however, inmates now raising constitutional objection to offensive
body searches face severe difficulties. In cases where the searching guard of the opposite sex does not act
in bad faith, the inmate likely has no remedy. The guard's action simply is not "punishment" under either
the eighth amendment or due process doctrines. No punitive purpose is present. The guard is not seeking to
induce suffering in the inmate but rather to keep the institution free of weapons and contraband. Nor is the
conduct "punishment on its face" so as to justify an inference of punitive intent. Even if it were, the action
may nevertheless be "reasonable" in light of the non-punitive interests in maintaining security and
promoting equal employment opportunity between the sexes. Inmates alleging illicitly motivated body
searches will also encounter problems in establishing the punitive nature of such intrusions. Sexually
motivated searches may not, in fact, be "punishment" under established doctrine because they lack the
necessary factor of punitive purpose. Again, because body searches by guards of the opposite sex do not
manifest "punishment on its face," courts are unlikely to infer punitive intent. Therefore, even harassment
searches, which may indeed be motivated by punitive purpose, may escape judicial scrutiny if searchers
deny illicit motivation and assert security needs or equal employment arguments as justification for their
actions.
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AT: REASONABLE SUSPICION CP

Reasonable standards will not solve because courts will interpret it as giving prisoners no rights
The Court analyzed the challenged body cavity searches under the fourth amendment. The only
requirement for a search under the amendment is that it be reasonable. n30 Reasonableness, although not
susceptible of precise definition, is determined by balancing the need for the questioned practice against its
invasion of the inmates' personal rights. n31 The Court stated that it would consider the scope of the
intrusion, the reasons behind it, the way the search was handled, and the place where the search was
conducted. n32 The main portion of the discussion was centered upon the security interests of the prison
officials. Based on the "significant and legitimate" security interests of the institution, the Court found that
the body cavity searches did not violate the reasonableness standard of the fourth amendment. In 1984, the
Court again addressed prison inmate challenges to prison conditions based on the fourth amendment in
Hudson v. Palmer. n34 In Hudson, the inmates at the Bland Correctional Center in Bland, Virginia
challenged "shakedown" cell searches by prison officials. n35 The United States District Court for the
Western District of Virginia granted the prison official summary judgment. n36 The United States Court of
Appeals for the Fourth Circuit affirmed the decision in part, reversed the summary judgment, and remanded
the case for further proceedings. n37 The Supreme Court granted certiorari to determine whether a prison
inmate has a "reasonable expectation of privacy in his prison cell entitling him to the protection of the
fourth amendment against unreasonable searches and seizures." n38 The Court looked at the expectations
of the prison inmates to privacy in their cells and the societal determination of whether the inmates'
expectation of privacy was reasonable. The Court balanced the competing interests and determined the
expectation of privacy to be unreasonable. n39 In reaching the conclusion, Chief Justice Burger wrote:
"[W]e hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that
a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against
unreasonable searches does not apply within the confines of the prison cell." Despite the Court's specific
language regarding privacy in the prison cell, n41 Hudson and its dicta in combination with Wolfish have
been used to argue that prisoners' challenges to body cavity searches in the prison setting should be denied.
n42 Nearly all of the district and circuit court opinions have interpreted the Wolfish and Hudson "hands
off" policy regarding fourth amendment issues as vindicating most efforts and practices of prison officials.
n43
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POLITICS LINKS/TURNS
Plan popular: support growing to strengthen civil liberties protections in congress
Jeffrey Rosen, legal affairs editor, NEW REPUBLIC, May 26, 2003, p. 19. (DRGCL/P0002)
But the defenders of privacy in Congress are no longer limited to the libertarian extremes. During the past
year, a group of more moderate Republicans and Democrats on the Senate Judiciary Committee have taken
on the administration for different reasons. In addition to Leahy and Russell Feingold--the most committed
Democratic civil libertarians on the Senate Judiciary Committee--Ron Wyden, a slightly left-of center
Democrat, has emerged as a staunch advocate of privacy rights. Wyden is most responsible for the current
restrictions on the Total Information Awareness Program and has raised questions about the Computer
Assisted Passenger Prescreening System. On the Republican side, Grassley joined Arlen Specter in
complaining that the administration wasn't sufficiently forthcoming in answering Congress's questions
about the implementation of the usa patriot Act. Specter was particularly unhappy about the Justice
Department's refusal to give the Judiciary Committee a lower court's secret decision about foreign
intelligence surveillance authority at the time that it was issued. "To use the phrase 'privacy champion'
about Grassley and Specter isn't crazy," says Rotenberg. "Both have expressed very serious concerns about
excesses by the White House, and they are moderate Republicans, not deeply conservative libertarians."
Bipartisan privacy constituency in congress ensures support for privacy protections
In the wake of Watergate and the Church Commission, which investigated the excesses of the CIA and FBI,
libertarians on the right and civil libertarians on the left have formed a bipartisan constituency for privacy
in Congress. "On the House Judiciary Committee in the 1990s, there was a real split between the bottom
row and the top row," says Dempsey. "The top row included the Henry Hydes and Bill McCulloms, who
were prepared to defer to the executive branch on issues of law enforcement and national security. The
bottom row was more skeptical, more libertarian, more deeply affected by Waco and Ruby Ridge." Since
the last election, the bottom row has been running the show in the House: Sensenbrenner is a determined
libertarian who has repeatedly made clear his opposition to the excesses of Ashcroftism.
Bipartisan privacy constituency in congress ensures support for privacy protections
But the most important reason Congress has proved more willing than the courts to challenge Bush and
Ashcroft is that, on the left and on the right, a principled, bipartisan libertarian constituency has emerged
that is willing to defend privacy, even in the face of popular fears. This constituency has more freedom to
assert itself now than it did in the immediate aftermath of September 11, and it would be sorely tested by
another serious terrorist attack on U.S. soil. But, because of a combination of social forces that arose in the
post-Watergate era--from increasing suspicion of the executive to increasing sophistication about the
dangers of invasive technologies--the most popular branch of government has proved a more reliable
defender of American liberties than the supposedly independent courts. Because American liberties have
never endured in the face of determined opposition from the political branches, Congress's new
assertiveness in checking the excesses of this president is an occasion for celebration and relief.
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Tough on crime is no longer a wedge issue to use against democrats
Elizabeth Hull, associate professor of political science, Rutgers University, PUBLIC PERSPECTIVE,
March/April 2001, p. 20. (DRGCL/P0139)
In past presidential elections, however, candidates often trumpeted "get tough" positions even when polls
suggested relative voter indifference. For instance, Barry Goldwater, Richard Nixon, Ronald Reagan, and
even George Bush accused their opponents of "coddling criminals" to good effect, notwithstanding the fact
that Gallup polls conducted at the time never ranked crime as the MIP -- Most Important Problem (a
distinction invariably awarded to economic issues, such as unemployment, taxes, or inflation). According to
the late Jeff Alderman, then director of polling for ABC News, "Until Fall 1993 no ABC/Washington Post
poll had ever shown more than 5% of the public naming crime as the most important problem facing the
country." In 1993, however, even as crime rates began falling, between 9 and 10% of poll respondents
identified crime as the nation's MIP. Then, a scant year later, 37% gave it top ranking. (Criminologist Mark
Warr attributes this leap to a confluence of events, including the well-publicized murder of 12-year-old
Polly Klaas and the so-called "Long Island Rail Road massacre," in which an aggrieved gunman killed
several passengers.) In four national polls taken in the fall of 1994, crime continued to top the list of MIPs,
with either 42 or 50% of those interviewed, depending upon the survey, citing crime as the nation's top
problem. By January 1995 the proportion had fallen to 31% -- still a significant number, and one high
enough to edge out traditional concerns -- and in 1996 a Washington Post survey ranked crime second
among the voters' top twenty worries. In a mid-1997 Time/CNN poll 14% of respondents cited crime as the
main problem facing the nation today, tying it with lack of moral values, and putting it just ahead of budget
deficits, with 10%. Yet, surprisingly, in neither the 1996 nor 2000 election did any of the major candidates
stress law and order issues. An obvious explanation, of course, is that crime rates were dramatically down.
After reaching an unprecedented high in 1991, crime fell every year since, dropping 4% in 1997 and 5% in
1998. These drops were relatively small, however, compared to 1999, when the Department of Justice
reported in its annual Crime Victimization Report that crime had plummeted another 10%. In 1999, 7.3
million people -- about 33 out of every 1000 US residents -- suffered a violent attack. That represents a
decline of 34% since 1993, to the lowest level since the report began in 1973. There is, however, another
reason "crime" was relatively ignored in both the 1996 and 2000 presidential elections: it no longer fulfilled
its traditional role as a "wedge" issue with which Republicans could bludgeon Democrats. For candidate
Bill Clinton, and indeed a whole generation of "New Democrats," the transformative event in their political
careers may well have been the "Willie Horton" phenomenon. During Michael Dukakis's tenure as
governor of Massachusetts, state prison officials granted convicted murderer Willie Horton a weekend
furlough, during which he raped a Maryland woman. Although Dukakis had nothing to do with the
furlough policy -- indeed, it had been instituted during the tenure of his GOP predecessor -- pollsters for
Republican presidential candidate George Bush learned through focus groups that linking the
Massachusetts governor with Horton would resonate powerfully with the electorate. Images of Horton,
depicted as a huge and menacing black man, soon began appearing on television screens, along with
ominous messages suggesting that Dukakis was "a liberal softie," whose feckless policies endangered the
law-abiding at the same time they indulged the rapists and murderers. "The code words were
'permissiveness' and 'lawlessness,'" recalls Andrew Kohut, director of the Pew Research Center. The
strategy, with its not-so-subliminal appeal to racism, proved astonishingly effective: in record time
Dukakis's 17-point lead vanished, and Bush handily won the 1988 election. As the Democratic candidate
for president in 1992, Clinton resolved at all costs to avoid his predecessor's fate. He would be as
unapologetically tough on crime as any potential Republican rival. To emphasize that point, he interrupted
his campaigning to fly home to Arkansas to attend the execution of Ricky Rae Rector, a convict so braindamaged that he told his jailers, just hours before his lethal injection, that he intended to vote for Clinton in
the upcoming election.
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Developed judiciary has weakened public's understanding of rights -- nuanced arguments on behalf
of civil liberties fall on deaf ears
Kenneth Roth, executive director, Human Rights Watch, WASHINGTON POST, February 1, 2005, p. C3.
(DRGCL/P0038)
But if rights depend on history lessons, those lessons can change with time. Rights may strengthen in
response to serious governmental abuse but may also weaken in the face of a serious threat. There is no
"one-way ratchet," as Dershowitz puts it. As the world changes, arguments that were persuasive yesterday
may no longer convince today. An effective rights advocate must stay attuned to the turns of history.
Dershowitz's insight is understood by the international human rights movement but tends to be overlooked
in a country like the United States, with its well-developed legal system. Because many Americans think of
rights as a specialty left to lawyers and judges, our arguments for rights are less sharp than they might be.
But in countries that typically demand attention from groups like the one I work for, Human Rights Watch,
there is no functioning judicial system. Rights depend on the ability to persuade -- to demonstrate that firm
constraints on state power serve the public interest. Since Sept. 11, public advocacy for rights is needed in
the United States as well. As Dershowitz notes, "Our past experience suggests that . . . the courts . . . will
generally not interfere with the executive's handling of a genuine emergency while it still exists." True to
form, the courts so far have addressed the administration's detention and interrogation practices only
tangentially. We will be remiss, Dershowitz suggests, if we wait for the courts to take on the depravity at
Guantanamo and Abu Ghraib. We must address it ourselves.
Politicians pander to tough on crime mentality, bashing constitutional rights protections
American Civil Liberties Union of Florida, INFORMATIONAL PAPERS: CRIME AND CIVIL
LIBERTIES, 2005 (DRGCL/P0007)
HTTP://WWW.ACLUFL.ORG/TAKE_ACTION/DOWNLOAD_RESOURCES/INFO_PAPERS/2.CFM.
Violent crime is a major problem in the United States. Indeed, the violent crime rate rose 61 percent
nationwide over the last two decades, making the U.S. one of the most dangerous countries in the
industrialized world to live in. Americans are seven to ten times more likely to be murdered than the
residents of most European countries and Japan. Government's inability to make headway in the effort to
solve this intractable problem, despite high tech policing, stiffer sentencing, massive prison construction
and the return of the death penalty in many states, has increasingly frustrated a fearful American public.
Given the failure of the "get tough" measures of the 1970s and early '80s to significantly reduce the crime
rate, some of our politicians have turned to scapegoating the Constitution. They claim that civil liberties
"technicalities" are tying the hands of the police and freeing criminals to commit more crimes. But tough
sounding rhetoric and attacks on the Constitution are no solution.
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Politicians on both sides of the aisle strive to appear tough on crime
Austin Sarat, professor of jurisprudence and political science, Amherst College, AMERICAN PROSPECT,
July 30, 2001, p. 41. (DRGCL/P0039)
When it comes to the politics of crime and punishment, it's hard to find clear differences these days
between liberals and conservatives. Progressives have not yet recovered from the presidential campaign of
1988, in which Vice President George H. W. Bush used the notorious Willie Horton television spot to
portray Massachusetts Governor Michael Dukakis as soft on crime, short on common sense, and out of
touch with the American mainstream. That ad created a narrative nightmare of escape from punishment that
resonated with public fears of criminal violence and concerns about a criminal justice system unable to
keep society's most dangerous offenders off the streets. By making a black man who senselessly brutalized
a white couple the symbolic representation of the policy failures of liberal and progressive criminology, the
Horton ad set the terms of debate for the 1990s. Instead of the difficult work of probing the causes of
violence, politicians of every stripe now claim that the world should be understood in a set of clear
dichotomies -- good versus evil, victim versus villain. Today's cultural common sense depends on flattened
narratives of criminal and personal responsibility and demands that we use punishment to restore clarity to
the moral order. And as any American who lived through the 1970s, 1980s, and 1990s surely knows, toughon-crime rhetoric has been predominant for a long time. From Richard Nixon's talk of "law and order" to
Bill Clinton's pledge to represent people who "work hard and play by the rules," crime has been such an
important issue that some have argued that we are being "governed through crime." Indeed, former Speaker
of the House Newt Gingrich once explained that the key to building a new conservative majority in the
United States rests upon "low taxes and the death penalty." By the presidential campaign of 2000, the
retreat of liberals and progressives was complete: Issues of crime and punishment hardly distinguished Al
Gore from George W. Bush.
Politicians will go out of their way to appear more tough on crime than the next politician
WASHINGTON POST, December 17, 2004, p. A32. (DRGCL/P0040)
MORE THAN three decades ago, the state of New York ushered in this country's experiment with
draconian sentencing for relatively minor drug offenses. Pushed by then-Gov. Nelson A. Rockefeller, the
drug laws that now bear his name imposed mandatory minimum sentences of mind-boggling lengths for
even nonviolent first-time offenses involving cocaine and heroin: 15 years to life in some instances. The
Rockefeller drug laws became a symbol of the criminal justice system's willingness to give up on people.
And while they remain among the harshest in the nation, they have inspired many other states and the
federal government to follow suit in enacting harsh mandatory minimum sentences. Reform efforts have
been going on for years, but the resilience of these irrational laws has been symbolic as well; it is far easier
for politicians to outflank one another as "tough on crime" by passing them than it is to enact commonsense revisions.
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Tough on crime stance is a win-win proposition for politicians
Konrad Moore, public defender, Bakersfield, SACRAMENTO BEE, June 13, 2004, p. E6.
(DRGCL/P0041)
The implicit operating assumption is that criminal laws more than pay for themselves. Safety and peace of
mind are precious commodities, and justify the expenditure of substantial sums. Murderers, rapists and
child molesters are necessarily incapacitated, and the issue of cost for these offenders is almost immaterial.
Politicians, routinely grilled on how they intend to pay for proposals to expand health care, education or
other social programs, are seldom quizzed on how they expect to fund initiatives aimed at toughening
criminal penalties. Being tough on crime is a win-win proposition. Value is assumed, and consideration of
the associated dollar costs seems trivial, if not altogether irrelevant.
Tough on crime stance politically savvy -- no one ever lost an election being tough on crime
PITTSBURGH POST-GAZETTE, September 30, 2003, p. A14. (DRGCL/P0042)
Sitting judges are reluctant to offer their views for the record. One contacted for this story, for example,
said his opinion in a newspaper could get him disqualified from a future case. But he and Johnson are
among many who say government is removing humanity from justice and reducing it to a cold, by-thenumbers calculation. "Why do we need courts anymore? Why do we need judges? Why don't we just turn it
all over to the Justice Department and let them do it?" Johnson said. "The effect of this is that you are
turning judges, prosecutors and defense attorneys into a bunch of clerks." Thomas Farrell, a former federal
prosecutor in Pittsburgh who defends white-collar criminals, said the new order was harsh and unnecessary.
"The only way you can avoid the maximum sentence [now] is if you cooperate, so it maximizes
prosecutors' power and takes it away from the judges," he said. "To me, it's just politics. No one ever lost an
election by being tough on crime. And it's disappointing."
Rampant fear of crime makes tough on crime message a political winner, and anything less is
political suicide
Reggie Rivers, columnist, DENVER POST, January 30, 2003, p. B7. (DRGCL/P0043)
No matter how irrational the course, how futile the effort or how dire the projections, politicians continue to
push a toughon-crime message because it sells, and elected officials commit political suicide if they
suggest anything less than unflinching toughness toward criminals. We're a nation of people who are
terrified of crime. Our collective fear gets stoked each evening when we turn on the news to watch a
compendium of horrible things that happened to other people, and each story carries the theme 'you don't
want this to happen to you.' In fact, news anchors routinely turn from the main story to a sidebar on how to
protect yourself from the danger you just witnessed - as ifj two planes colliding in the sky was more than a
tragedy made spectacular by its rarity; it also was something that might be looming in your future if you're
not careful. At home, we put up fences and drive our cars with tinted windows straight into our garages
without talking to our neighbors. We double-lock our doors, engage our alarm systems and settle into our
protected bunkers to watch the news. This fear is the reason that we don't question the rising social and
economic costs of prisons. We have a lock-'em-up-and- throw-away-the-key mentality toward everything
from violent crime to one- time mistakes to nonviolent drug offenses.
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Conservatives can win on tough on crime issue because liberals can't articulate a persuasive
alternative
Elizabeth Hull, associate professor of political science, Rutgers University, PUBLIC PERSPECTIVE,
March/April 2001, p. 20. (DRGCL/P0044)
The unrivaled hegemony of the "tough on crime" discourse, however, may have represented less a
capitulation to a harsh-minded public -- since studies show that in many circumstances the public is
considerably less punitive than politicians perceive it to be -- than a failure of liberals to articulate and
defend an alternative agenda. Brent Staples, writing in The New York Times, suggests that the conservative
narrative has prevailed not because the much ballyhooed "Third Way" policies are inherently superior or
even appropriate, but because liberals themselves have no clear vision of who they are or what they should
be seeking to accomplish. As a consequence they have been unable to articulate values that resonate with
Americans -- in contrast to conservatives, whose law and order rhetoric complements the public's deepseated commitment to individual responsibility. Until liberals reconnect with their time-honored values, the
conservatives will continue winning -- if only by default.
Public tough on crime and they support use of law enforcement tools against defendants
Kathryn R. Urbonya, Professor of Law, William and Mary, AMERICAN CRIMINAL LAW REVIEW, Fall
2003, p. 134. (DRGCL/P0045)
The fact that polls show high regard for the judiciary is not inconsistent with the thesis offered here. Few
Americans worry very much about defendants caught dealing drugs or about illegal aliens being
apprehended. If the Supreme Court enables more of these defendants and aliens to be caught and
prosecuted or caught and deported, the public will be happy.
Assertion of getting tough on crime are always politically popular
ST. LOUIS POST-DISPATCH, September 24, 2003, p. C5. (DRGCL/P0064)
Stephen A. Saltzburg, a professor at the George Washington University Law School in Washington, said
Ashcroft is addressing a "nonproblem." His directive will have no effect, Saltzburg said. "The attorney
general has nothing to worry about with his prosecutors being too lenient," Saltzburg said. Asked for the
reason behind Ashcroft's memo, Saltzburg said assertions of getting tough on crime are always politically
popular.
38
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Democrats support tough-on-crime issues
D'AMATO (International Socialist Review) 1999 (PAUL, International Socialist Review Issue 6, The
Democrats and the Death Penalty, Spring)
Clintons enthusiastic support for the death penalty is the crown jewel of the Democratic Partys "gettough-on-crime" laws, including life imprisonment for a third felony offense ("three strikes and youre
out"), immediate deportation of immigrants with years old criminal records and tougher sentencing for
youth offenders. Clinton-sponsored legislation greatly expanded the number of federal crimes punishable
by death and accelerated the number of executions at the state level. In the six years that Clinton has been
president, more than 315 people have been executed in the United States. In the entire 12 years of the
conservative Republican presidencies of Ronald Reagan and George Bush, 185 people were put to death. In
the last two years alone, record numbers have been executed. In 1997, 74 people were executedthe largest
number of executions in a single year since 1956. Sixty-eight death-row prisoners were killed in 1998.
39
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HARMS: ALTERNATE CAUSALITY

Bodily privacy is violated in innumerable waysthe aff cannot solve
Imprisonment entails radical denials of privacy:
A prisoner is mortified and vulgarized not only by having to continually expose himself as he is moved and
stored in the company of others; he is also defiled by being subject to their exposure. . . . The custody
orientation negates privacy in innumerable other ways. These include such purposive intrusions as periodic
headcounts, nightly checks, inspections or shakedowns of prisoners' living areas and belongings. Whatever
tends to disturb visibility is forbidden.
Dehumanization is an inevitable part of incarcerationonly talking about body cavity searches
misses the point
Mauer (Assistant Director of the Sentencing Project) 05 (Marc, WALTER C. RECKLESS
MEMORIAL LECTURE: Thinking About Prison and its Impact in the Twenty-First Century, 2 Ohio St. J.
Crim. L. 607, p. 609-610, Lexis)
Imprisonment has always been a profound experience for persons convicted of crimes. There are prisons
that are better or worse than others, and ones that offer a decent amount of programming and concern for
well-being. Ever since the inception of the prison, though, isolation from family and community, and the
dehumanization that is an inevitable element of incarceration, have been defining aspects of the institution.
We can debate whether imprisonment is necessary or appropriate in any particular case, and that is a
perfectly reasonable discussion, but the conditions under which offenders are imprisoned and the
circumstances under which they return to the community affect all prisoners and the society to which they
return. Once a prison term is completed, the transition back to the community is almost always laden with
difficulty. What in many cases is a situation of limited connections with the world of work becomes even
more problematic with the stigma of imprisonment attached to former offenders. And particularly in an
economy increasingly diverging into a high skills/high technology sector and a [*610] broad low skill
service economy, few offenders have promising prospects for advancing out of the bottom rungs of the job
ladder.
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REASONABLE SUSPICION CP
Current reasonable suspicion standards are applied too broadly in prisonrequiring individual
reasons to search under the reasonable suspicion doctrine solves the case
Helmer, (Attorney) 01 (81 B.U.L. Rev. 239, February, NOTE: Strip Search and the Felony Detainee: A
Case for Reasonable Suspicion, Gabriel).
A law that presumes reasonable suspicion to strip search all felony detainees authorizes police to do more
than courts have previously allowed. Additionally, many courts invalidated blanket strip search policies
because officials performed the searches under policies not requiring reasonable suspicion or any other
level of cause. Though the Smith court upheld a blanket presumption of reasonable suspicion for all felony
detainees, no appellate court has adopted this strategy. Courts struck down blanket policies making no
mention of reasonable suspicion, but no court has found a policy articulating a blanket presumption to be
unconstitutional. Thus, a danger exists that courts may uphold a policy articulating a blanket presumption
of reasonable suspicion for all felony detainees. This danger is alleviated if courts recognize that blanket
presumptions are merely attempts of policy-makers to circumvent Fourth Amendment requirements by
presuming in writing what they are unable to presume in person, namely that charging a person with a
felony generates a reasonable suspicion. The Kennedy court applied the Bell balancing test to the strip
search policy and reasonable suspicion to the individual search. Despite the application of differing
doctrines in Kennedy, a court wishing to compel the creation of constitutionally sound strip search policies
will not uphold policies that do not require an individualized, reasonable suspicion. Reasonable suspicion
demands that the government official conducting the search "point to specific objective facts and rational
inferences that they are entitled to draw from those facts in light of their experience." n260 Inchoate,
unspecified suspicions do not meet this definition. Reasonable suspicion does not mean evidence beyond a
reasonable doubt, or by clear and convincing evidence, or even by a preponderance of the evidence.
Reasonable suspicion is not even equal to a finding of probable cause. Rather, reasonable suspicion
requires only specific objective facts upon which a prudent official, in light of his experience, would
conclude [*285] that illicit activity might be in progress. Consequently, reasonable suspicion requires a
fact specific determination. In other words, the suspicion must be directed to a specific individual in order
to justify a search. n263 "Reasonable suspicion also includes the requirement that prison officials have" a
reasonable belief "that drugs or other contraband are concealed in the particular place they decide to
search." n264 Thus, a generalized suspicion of smuggling does not justify the extensive intrusion of a strip
search. A strip search is permissible only if the official has an individualized suspicion that the arrestee is
hiding weapons or contraband. This suspicion must relate to the "individual arrestee,' not a "category of
offenders,' and does not arise merely because an arrestee fails to post bond immediately and police move
him to general population.
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REASONABLE SUSPICION CP
A requirement that the Bell doctrine be applied via an individualized reasonable suspicion standard
protects rights
Helmer, (Attorney) 01 (81 B.U.L. Rev. 239, February, NOTE: Strip Search and the Felony Detainee: A
Case for Reasonable Suspicion, Gabriel).
The "iron curtain" between prison and the Constitution may have been drawn aside, but the danger from
legal doctrines such as "wide ranging deference" continues to threaten the borders of constitutional
liberties. Some courts have managed to remain loyal to the principles announced in Bell v. Wolfish, without
"an abdication of an unquestionably judicial function." n282 By developing the Bell doctrine into a careful
balance, courts are now able to give full consideration to all interests involved without blinding themselves
to the deepest invasions into an individual's body and constitutional rights. The judicial balance, at least in
the Kennedy decision, has fallen in favor of felony detainees, long the subject of unreasonable strip
searches. Outside of the Ninth Circuit, however, the Fourth Amendment protections owed to detainees are
less certain. While blanket strip search policies that allow searches without suspicion are invalid,
deferential application of the Bell test has been stretched in some cases to form a presumption of reasonable
suspicion for felony detainees. The reasonable suspicion standard, as currently defined, is hostile to the
Smith-Davis presumption theory. The individualized nature of the reasonable suspicion inquiry is
inconsistent with blanket strip search policies and a policy presuming it is reasonable to strip search all
detainees accused of felonies. Permitting these policies would be a constitutional wrong turn by police and
courts. Despite attempts to subvert and avoid the individualized nature of this doctrine, the reasonable
suspicion standard remains the most clearly defined and well-accepted tool to assess the constitutional
validity of a strip search of a pretrial detainee.
42

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WFU Summer 05

Andrew, AJ, Tyler

Bell v Wolfish Affirmative

Bell v Wolfish Affirmative

Bell v Wolfish Affirmative

Bell v Wolfish Affirmative

Bell v Wolfish Affirmative

Observation three: solvency

Bell v Wolfish Affirmative

Bell v Wolfish Affirmative

TOPICALITY: AUTHORITY FROM BUREAU OF PRISONS

Bell v Wolfish Affirmative

INHERENCY: NO PROTECTIONS NOW

Bell v Wolfish Affirmative

INHERENCY: BLANKET AUTHORITY TO SEARCH NOW

Bell v Wolfish Affirmative

INHERENCY: BALANCING TEST BAD

Bell v Wolfish Affirmative

INHERENCY: BALANCING TEST BAD

Bell v Wolfish Affirmative

HARM: SEARCHES DEHUMANIZING

Bell v Wolfish Affirmative

HARMS: DEHUMANIZATION IMPACTS

Bell v Wolfish Affirmative

HARMS: DEHUMANIZATION IMPACTS

Bell v Wolfish Affirmative

HARMS: DEHUMANIZATION IMPACTS

Bell v Wolfish Affirmative

HARMS: SEXUAL ABUSE

Bell v Wolfish Affirmative

HARMS: NON-VIOLENT OFFENDERS ALSO TARGETED

Bell v Wolfish Affirmative

HARMS: BOTH JAILS AND PRISONS

Bell v Wolfish Affirmative

HARM: AT SEARCHES ONLY VISUAL

Bell v Wolfish Affirmative

HARMS: KEY FOURTH AMENDMENT ISSUE

Bell v Wolfish Affirmative

HARMS: AT DNA ALTERNATE CAUSALITY

Bell v Wolfish Affirmative

HARMS: AT CROSS-GENDER ALTERNATE CAUSALITY

Bell v Wolfish Affirmative

HARMS: AT CROSS-GENDER ALTERNATE CAUSALITY

Bell v Wolfish Affirmative

SOLVENCY: BUREAU OF PRISONS

Bell v Wolfish Affirmative

SOLVENCY: BUREAU OF PRISONS

Bell v Wolfish Affirmative

SOLVENCY: AT SEARCHES KEEP PRISONS SAFE

Bell v Wolfish Affirmative

SOLVENCY: PROBABLE CAUSE BEST

Bell v Wolfish Affirmative

SOLVENCY: PROBABLE CAUSE BEST

Bell v Wolfish Affirmative

AT CRITIQUES: NEED POLICY SOLUTIONS

Bell v Wolfish Affirmative

AT: SUBSTANTIVE PRIVACY RIGHTS CP

Bell v Wolfish Affirmative

AT: PRIOSNERS CAN SUE CP

Bell v Wolfish Affirmative

AT: REASONABLE SUSPICION CP

Bell v Wolfish Affirmative

Bell v Wolfish Affirmative