Does anyone actually trust the Supreme Court?

[bosk1]

Not up on Morrison, but Lopez was such a reach that it really shouldn't have even been construed as a commerce issue. 

Well, yeah, and that's the problem with modern commerce clause jurisprudence in general.  Most of those cases shouldn't really be construed as commerce clause issues.    That's the problem.  (good short article here:  https://www.theatlantic.com/national/archive/2012/04/reality-check-a-look-at-what-the-commerce-clause-actually-says/255423/ )  And this case probably shouldn't either, which is another reason the "unprecedented" comment is off base.

[El Barto]

For what it's worth, I tend to agree.  Like I said, I don't approve of Wickard, which started the whole downward slide, or the gazillion things that it's upholding has allowed to happen in the name of commerce.  I do accept that it's become the law of the land, though.  While Thomas is perfectly willing to ignore established law, most of the others aren't.  Moreover, they've all been perfectly fine letting that expansion of commerce do it's thing when it suits their own personal interests.  I won't agree with Obama that it'd be unprecedented, but I'll say on my own that it'll expose a handful of them as hypocritical shills should they suddenly decide that it' time to go back to the original intent, all of a sudden. 

[antigoon]

Even with the deference toward Congress re: the commerce power, I really don't think it would be a stretch for the court to say that compelling people enter into a market in order to regulate it would be outside the commerce power. I think this case is unique enough that it could be distinguished rather easily.

[El Barto]

We're already knee deep into that market, each and every one of us.  Even if you never get sick and have Bill Gates money to provide for your own healthcare, you're still footing the tab for lots of other people.  Healthcare matters such as this have a huge effect on costs, and also the group pools that we're already forced to buy into, SSI, Medicare, Medicaid.  While I could see the argument that it should be an intrastate matter, rather than interstate,  that's not relevant either.  Part of that defference is that matters that merely effect commerce are still matters that can be regulated, and according to Scalia's more nuanced interpretation, that includes intrastate issues if denying the federal's interest undercut's it's ability to regulate the interstate variety.

[antigoon]

I'm not saying I disagree with any of that, but clearly (especially from their lines of questioning) some of these justices don't view it that way.

[El Barto]

I'm of the opinion that their questioning is nearly meaningless, and the extent to which it does have meaning is mostly diversionary.  I think they like to fuck with people. 

[antigoon]

I think it's possible that oral argument before the Court could be meaningless but I think the justices lines of questioning are usually reflective of how they actually think about whatever issue is infront of them.

[Scheavo]

You're still not giving me a reason why someone arrested for a traffic violation should be stripped search.

I don't think that someone arrested for a traffic violation (or failure to appear, as it is with this case) should be strip searched.  I think that somebody who's going to have to be introduced to the general population of prisoners might need to be.  This is two very different conditions. 

Whether or not you actually see the inside of a jail varies based on what you're suspected of, how long it'll take to arraign you, and whether or not there's room in the jail for you.  Like I said, most people who get busted down here aren't subjected to that because they get processed and turned around without any sitting around. My trip through the CJ department of North Richland Hills, Tx, took less than two hours.  If you get busted at 2200 on a Friday night, you're going to be sitting around until Monday morning, and the amount of security that you're subjected to will likely be greater.

And I have no problem with a strip search if a reason is given, really just any. But what the Supreme Court said was jailers don't need a reason, they don't need probable cause. You're saying they, "might" need to be strip searched is fine, but that's not what this case is really about.

And you keep pointing out that it was only for a ticket.  That's misleading.  It was for failure to appear (the fact that the cops were mistaken isn't relevant to the fundamental issue).  I know tons of people who've gotten hitched up for failure to appear warrants; it's commonplace down here.  The whole point is that you've forfeited the right to be turned loose on your own recognizance.  You've given the man every right to want to keep hold of you, and that requires keeping you in a cell.  If you don't pay your tickets, and even though he eventually did, he clearly let them go to warrant status at one point, you're going to wind up sitting in jail until things get cleared up.  At that point, you're subject to the precautions that your captors want to take.

From what I understand, the ticket was paid off well before there was a warrant. The warrant was mistakenly placed, completely. It's not as if there was a warrant, and the guy then paid off the fine - he paid off the fine AND THEN there was a warrant.

I'll reiterate that I'm troubled by people who're only accused being treated as if they're guilty.  I just don't think that it's outright unreasonable, and it usually doesn't work out that way, anyway.

You're willing to let criminals get away with some things, in the name of a free society, yet you think it's just dandy to strip search anyone in the name of prison security? You're taking the opposite side of the issue, and for some reason I still can't figure out. If we let criminals go to protect the good guy, every now and then, why should we not do the same regarding prison? I mean, the huge gorilla in the room is that Prison isn't safe now, and it's not a drug free environment. STrip searching everyone that comes in can only make prison marginally safer, as it's not going to change or affect the kind of persons in jail.

[El Barto]

I don't think that someone arrested for a traffic violation (or failure to appear, as it is with this case) should be strip searched.  I think that somebody who's going to have to be introduced to the general population of prisoners might need to be.  This is two very different conditions. 

When a person is arrested probable cause has to already exist.  And the reason you seek is that a person is being introduced into a secure environment.  Seems to me that your objection should be with introducing people into that environment without being convicted, rather than what happens once they're to be confined.  I could go along with that, and what I suspect is that the court viewed that as a matter that should be legislated.  It's question was whether or not a person going into jail could be strip searched, not whether or not a person arrested should be placed into that jail, and I think theirs was the correct answer. 

And I don't think that my positions are in conflict.  I frequently question what constitutes a crime in this here police state of ours, but I recognize that a person's rights are diminished when they actually are accused of one.  I'm somewhat claustrophobic, and getting cuffed and locked up in the backseat cage is pretty god damned unpleasant; moreso than the strip search would be.  Would you suggest that since I'm only arrested and not convicted I shouldn't be subjected to that?

[Scheavo]

When a person is arrested probable cause has to already exist.

I'd say arresting someone isn't probable cause to assume they're trying to smuggle something into jail. And considering this would fall under our basic rights as human beings, it's pretty much the courts jurisdiction to uphold our rights. If the Supreme Court had ruled differently, perhaps even just saying it's unconstitutional to strip search someone who hasn't had due process, then our enforcement would have to change. We would get to the end, the one where we both agree, and we would do it through the route this kind of stuff is supposed to go through.

The way you keep mentioning the strip search, it still comes across as if you think a strip search, period, is the problem. It's not. There needs to be some reason, some sort of justification, relating to the persons criminal record, the reason he's arrested, something he said, maybe how he's walking - SOMETHING.

As for your last analogy, there's not much we can reasonably do to accommodate your claustrophobia. There is, however, something we can do about strip searching people who don't deserve it. We should also only arrest someone if there's a reason to do so immediately; i.e. the person is a threat to another person, reason to believe the person will flee; otherwise, we should just give them a court date and tell them to show up. Beyond that, if there was a way to accommodate your claustrophobia, then I'd say it'd be reasonable to do so. But that just doesn't seem possible.

[El Barto]

Allowing tickets to go to warrant status automatically suggests and intent to flee.

On what basis would you suggest the court uphold Florence's claim?

[Scheavo]

Allowing tickets to go to warrant status automatically suggests and intent to flee.

On what basis would you suggest the court uphold Florence's claim?

From what I understand, the ticket was paid off well before there was a warrant. The warrant was mistakenly placed, completely. It's not as if there was a warrant, and the guy then paid off the fine - he paid off the fine AND THEN there was a warrant

On the basis that there was no reason to suspect Florence had anything on him. I'll even cede the first strip search as being acceptable, just for the sake of the argument. Why, then, strip search him again when he's transferred to another jail? There's even less reason for the second strip search.

I don't see why the Supreme Court should make decisions based upon the current prison reality. It's getting things assbackwords.

[El Barto]

I recognize that he didn't have a warrant out for him, but from the cops highly mistaken point of view, he did and that's what matters here. 

From the jailer's point of view, you can't say that there's no reason to suspect he had something on him.  They're going to assume that everybody does.  As for the second jail, yeah, it seems pretty silly.  Here's something to consider, though.  In matters of law enforcement, administrations often take a zero exception approach.  There was a story down here a few years ago about a little old lady in Highland Park (the richest neighborhood in Dallas).  This woman was 90+ and didn't have her license on her.  The policy of the HPPD is to arrest people who are driving without a license, and she was no exception.  They cuffed her and hauled her bony ass to jail.  They caught a whole bunch of flack for it, and their explanation was that if they cut a break for her, then they'd catch flack from everybody else that didn't get one.  Since they deal with filthy stinking rich people constantly, and they have a keen interest in avoiding the appearance of treating them better, they treat them the exact same way they do the Mexican maids and landscapers they pull over.  On top of that is the bureaucracy involved in running a jail.  Hell, they actually lose prisoners sometimes. Rather than determining who's searched and who isn't searched when transferring in, they probably prefer to search everybody.  How do they know if #24601 came from city A that routinely searches people, or your preferred city B where they don't?  I can see how they might have searched him at the second jail and it wasn't because they wanted to fuck with him.

And that's not a legal basis for awarding somebody damages.  I'm wondering what hook the courts could have hung their hat on in determining that you can't strip search people lawfully detained?

[bosk1]

With regard to the second search:  ^That and the fact that contraband gets smuggled into and/or manufactured in jails/prisons all the time.  Just because he came directly from one secured facility and transferred to another does not mean he was clean when he checked into the second.

[Scheavo]

administrations often take a zero exception approach.

I've asked why no reason needs to be given, and you just say there shouldn't be exceptions, but that's already assuming the rule is to strip search.

I'm wondering what hook the courts could have hung their hat on in determining that you can't strip search people lawfully detained?

If there is any reason whatsoever to suspect the person.

By the way, did that little old lady get stripped searched? Because unless she did, this example is a complete non-sequitor.

With regard to the second search:  ^That and the fact that contraband gets smuggled into and/or manufactured in jails/prisons all the time.  Just because he came directly from one secured facility and transferred to another does not mean he was clean when he checked into the second.

And this seems rather close to presuming everyone's guilty, until proven innocent. Ya, they're criminals, but being a thief does not make you a murderer, and being convicted of some crime does not mean you should be presumed guilty in all possible crimes.

And if it gets smuggled into and out of all the time, then the strip searches don't seem to be all that effective. Considering the level of possible humiliation involved in the process, it's not something we should just do in the name of security.

[El Barto]

I've already told you the reason numerous times.  They're being introduced to a secure environment.  It's like the Andromeda Strain.  You keep things out by not letting them in.

I cited the old lady as an example of applying the law evenly to all accused, as opposed to picking and choosing based on class, race, happenstance, whatever.  She was almost certainly not strip searched because in that situation, like in the majority of arrests, she wouldn't have been held so there's no reason to search her.  Knowing how mercilessly professional those HP coppers are, if they'd had to hold her for the weekend before transferring her to Irving, they would have strip searched her.

[Scheavo]

We're obviously talking past each other a little.

Just becuase it's a "secure environment" and supposed to be one, doesn't mean the bill of rights goes out the window. Criminals are still humans, and they still have rights. There's even specific rights for criminals and suspects of crimes. We throw out illegally obtained evidence, even though it can often set what are obvious criminals free. We respect rights, despite the possible consequences to society. This is your stated position as well. Could we not have metal detectors? Would body-scanners and dogs not suffice, at least as the filter? Maybe if something suspicious arise, you can strip search someone. Which would become required if the Supreme Court actually backed the rights and human dignity we are supposed to afford our fellow citizens, criminal or not.

On top of that, it's not that "secure" of an environment. Letting a little more through isn't going to be a huge game-changer, and the real problem with our prison system isn't related to strip-searched, smuggling in of contraband, or anything like that. So, in vainly trying to address a real problem, it's acceptable to humiliate and degrade people simply accused of a crime at an "inconvenient" time? It strikes me as obviously ludicrous. As ludicrous as strip-searching anyone boarding an airplane, becuae an airplane is supposed to be a "secure environment."

[hefdaddy42]

People boarding an airplane haven't been arrested.

[Scheavo]

People boarding an airplane haven't been arrested.

Never said they were, and I don't see, frankly, how it applies.

It seems it's time to start quoting the Constitution.

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The dissenting opinion pointed to "unreasonable searches," and I happen to agree. You'll notice how this doesn't say criminals don't have these rights, and in fact, this right is aimed particularly at criminals and the accused. They are rights that "shall not be violated," but upon "probable cause." Being arrested, and convicted, is not probable cause, especially not for minor, non-violent, non-drug related issues.

I'd also say the Eight Amendment touches upon the same issue:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

These are not rights we take away when someone is convicted of a crime.

[hefdaddy42]

I don't see a search as being "cruel and unusual punishment."  I also don't find it unreasonable if they've already been arrested.

[bosk1]

With regard to the second search:  ^That and the fact that contraband gets smuggled into and/or manufactured in jails/prisons all the time.  Just because he came directly from one secured facility and transferred to another does not mean he was clean when he checked into the second.

And this seems rather close to presuming everyone's guilty, until proven innocent.

  This is not about guilt or innocence.  As Barto has said ad nauseum, it is about ensuring the safety and control over a secure environment, which the government has a strong interest in doing.  Guilt vs. innocence is not the issue at all.

[Scheavo]

With regard to the second search:  ^That and the fact that contraband gets smuggled into and/or manufactured in jails/prisons all the time.  Just because he came directly from one secured facility and transferred to another does not mean he was clean when he checked into the second.

And this seems rather close to presuming everyone's guilty, until proven innocent.

  This is not about guilt or innocence.  As Barto has said ad nauseum, it is about ensuring the safety and control over a secure environment, which the government has a strong interest in doing.  Guilt vs. innocence is not the issue at all.

That's not the reasoning given by the Supreme Court. They're reasoning was, that since anyone could be carrying contraband, it's reasonable to suspect everyone of carrying contraband. That was basically the majority opinion. Now, I'm not saying it's exactly like presuming guilt, but if this reasoning was applied to anyone but criminals, the right would be up in arms about it.

I don't see a search as being "cruel and unusual punishment."  I also don't find it unreasonable if they've already been arrested.

A search wouldn't be. A strip search would be. Like I said, why not use the technology we're using in airports to screen these people? Find something extremely suspicious, then check it out. But there needs to be "probable cause" to suspect someone of something illegal, or of being a threat, before you can search them, or their body - and that's the Supreme Law of the Land (or at least should be).

So, you're arrested for not having a driver's license. That means you're a threat to prison security? That means you might have drugs on you? And that means the state has the authority to make you strip, to closely examine your body, and basically treat you like an animal?

[Cool Chris]

Are we still arguing about strip searches? I've been through the criminal justice system here in WA and spent a few days in the cooler. And like EB suggested, the intake was really the least annoying/troublesome part of my stay. It's not like there is a sadist waiting at intake with latex gloves, vaseline, and a flashlight. This isn't 'One Flew Over the Cuckoo's Nest.' I wouldn't consider it invasive, 'cruel and unusual,' or being treated like an animal.

* I am stating this without being fully up on the SCOTUS ruling - just posting my thoughts on strip searches *

[El Barto]

Just becuase it's a "secure environment" and supposed to be one, doesn't mean the bill of rights goes out the window. Criminals are still humans, and they still have rights. There's even specific rights for criminals and suspects of crimes. We throw out illegally obtained evidence, even though it can often set what are obvious criminals free. We respect rights, despite the possible consequences to society. This is your stated position as well. Could we not have metal detectors? Would body-scanners and dogs not suffice, at least as the filter? Maybe if something suspicious arise, you can strip search someone. Which would become required if the Supreme Court actually backed the rights and human dignity we are supposed to afford our fellow citizens, criminal or not.

I read through that line by line, twice, and I agree with every bit of it.  And yours does seem a better solution. 

I still see nothing that says a jailer can't search people before throwing them into the GP; seems like common sense that you would, honestly.  I don't think it's in conflict with the Constitution, since reasonable is a sliding scale.  Strip searching somebody that's just walking down the street is unreasonable.  Strip searching somebody so you can hold them for 3 days until their arraignment seems pretty reasonable to me. 

As for your alternative, I think it's a great idea.  It's a shame we don't have a legislature that gives a shit about such things.  Where you and I differ is that you seem to think that SCOTUS should shoot down a perfectly valid principle so-as to necessitate the creation of a better one.  Their role here is to determine it's constitutionality; not effect change.  Hell, I'd bet that the 5 who decided against Florence would agree that your idea is how things should work.  It's just not their place to force it into law.

[Scheavo]

But isn't it the Supreme Courts role to say what is constitutional or not, and to throw out unconstitutional laws and practices? Basically, if this is the logic the Supreme Court is using, then if they actually do through out even parts of Obamacare, they've revealed themselves as huge hypocrites.

Early on in American history, the Massachusetts Supreme Court ruled that slavery was unconstitutional  (I wanna say Qwok Walker (sp?), but I'd be impressed if that's actually the right case name myself). It was a pretty "radical" decision, but it was the only rational way to interpret the Massachusetts State Constitution. This is supposed to be one of the roles of the Supreme Court, to defend our liberties and our rights, and not to back-down in defending those simply because they don't want to "legislate." The legislature will have to deal with what the Supreme Court says, and it's the legislature that'll eventually make any changes to the system.

Reminds me of the immediate post civil war period, where the Supreme Court defied all basic logic to neuter the 14th amendment, and allow for the Jim Crow south. I honestly see a lot of the decisions arrived at in recent years being overturned in the future.

[El Barto]

But isn't it the Supreme Courts role to say what is constitutional or not, and to throw out unconstitutional laws and practices? Basically, if this is the logic the Supreme Court is using, then if they actually do through out even parts of Obamacare, they've revealed themselves as huge hypocrites.

Sure, on both counts.  It's their role to say what is or isn't constitutional (and this is in our opinion), and they'll all be a bunch of hypocrites if they overturn Obamacare.

[hefdaddy42]

I don't see a search as being "cruel and unusual punishment."  I also don't find it unreasonable if they've already been arrested.

A search wouldn't be. A strip search would be.

Why?

[Scheavo]

I don't see a search as being "cruel and unusual punishment."  I also don't find it unreasonable if they've already been arrested.

A search wouldn't be. A strip search would be.

Why?

Because a strip search, is, well, more of a search, and inherently more invasive. The guy in question (Florence) was speaking about the incident that happened years ago, and he still showed some difficulty in remembering the event.

The Fourth Amendment says that we shall be "secure" in our "person" unless there is "probable cause." It doesn't say, unless said person is accused or even convicted of a crime, it says that unless there is "probable cause" to assume otherwise.

But isn't it the Supreme Courts role to say what is constitutional or not, and to throw out unconstitutional laws and practices? Basically, if this is the logic the Supreme Court is using, then if they actually do through out even parts of Obamacare, they've revealed themselves as huge hypocrites.

Sure, on both counts.  It's their role to say what is or isn't constitutional (and this is in our opinion), and they'll all be a bunch of hypocrites if they overturn Obamacare.

The Constitution can be interpreted fairly broadly, as can any text, but that doesn't mean that the Constitution can be interpreted as anything. Aye, we have differing opinions of "reasonable" and what is "probable," but when you have no reason to suspect someone at all of something, it's pretty easy to say that there isn't reasonable, or probable cause.

Is it constitutionally illegal to put a camera in a cell? I've watched some prison shows, and it seems like they always have a camera outside the cells, but not inside. I can imagine this is a legal reason, but I could easily see it being more of a common sense measure.