Shackling Youth, Strip-Searching Adults: PA Legislature Leans Forward While U.S. Supreme Court Leans Backwards

Pennsylvania just took a giant step forward with respect to its treatment of youth in the juvenile justice system while the United States Supreme Court recently took a giant step backwards in declaring the strip searching of adults—arrested and detained for even the most minor offenses—a valid practice under our Constitution. 

In Pennsylvania, one of the last pieces of legislative reform emerging from the Luzerne County juvenile court judges' scandal fell into place this week. Governor Tom Corbett signed Senate Bill 817 into law, prohibiting the shackling of children in juvenile court unless there are extreme or exceptional circumstances. The law, sponsored by Senator Lisa Baker, reinforces a juvenile court rule adopted last year by Pennsylvania's Supreme Court. The law and rules give Pennsylvania youth two layers of protection against what is nothing more than state-inflicted trauma. 

Shackling compounded the trauma that a corrupt juvenile court inflicted on the children in Luzerne County, Pennsylvania. Hillary—whose "conviction" for a MySpace parody of a school official started Juvenile Law Center's 2007 investigation into Luzerne County practices—was shackled and dragged from the courtroom after a two-minute hearing. She had never before been in trouble. She presented no physical threat. She was not a threat to flee. Hillary was not alone—the shackling in Luzerne County is just one of many examples of the daily state-sanctioned maltreatment of children in jurisdictions across the country.  

There is no place in the juvenile justice system for the trauma that shackling perpetrates on far too many children. Indeed, many youth in the justice system have been exposed to violence, have been victims of child abuse, or reach the courthouse distrustful, fearful and in need of empathetic adult assistance. Infliction of trauma only makes things worse for youth who will have difficulty sustaining relationships or controlling their emotions. Hurting children also undermines society's goals, since it is never in society's interest to make it harder for teens to grow into trusting, productive citizens. 

The ban on shackling is one step toward aligning Pennsylvania with international norms. The United Nations Convention on the Rights of the Child declares that:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.

In a dis-similar vein, the U.S. Supreme Court recently rejected a challenge to routine strip searches of adults. Like shackling, routine strip searches, without probable cause, are an affront to human dignity. In Florence v. Board of Chosen Freeholders, the Court nevertheless rejected a broad constitutional challenge to strip searches of adults admitted to jails following arrest, even for minor offenses. The Court ruled, in an opinion written by Justice Kennedy, that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection with no touching. Significantly, Justice Kennedy also wrote the majority opinions striking the juvenile death penalty in Roper v. Simmons and juvenile life without parole sentences for youth convicted of non-homicide crimes in Graham v. Florida. 

While the Court explicitly allowed the use of strip searches despite the absence of any individualized suspicion that an inmate might possess weapons, contraband or disease, the ruling suggests a potential limiting principle based upon whether the inmate was segregated or otherwise held separately from the general population. With limited potential for contact or interaction, the majority observed that there may be less need for a full strip search such as that allowed in Florence. The dissenters, led by Justice Breyer, would have found that the strip search at issue violated the Fourth Amendment, noting that strip searches were "a serious affront to human dignity and to individual privacy."

While Florence was limited by its facts to strip searches of adult inmates only, Justice Breyer in his dissent also cited a 2009 U.S. Supreme Court case, Safford Unified School District #1 v. Redding, in which the Court held that a strip search of a school child was unconstitutional. Juvenile Law Center filed an amicus brief in Safford, arguing that for children, "being forced to strip in front of a stranger can be frightening, demeaning and degrading." The Supreme Court agreed. In the school setting, it said, "the meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrustive in a category of its own demanding its own specific suspicions." 

Two years before Safford, the Court declined to address whether strip searches of minors, without probable cause, were unconstitutional when done in a juvenile detention center. The issue of strip searches of children in juvenile justice facilities remains undecided by the Court. However, the Court has repeatedly declined to extend many of its rulings regarding adults' constitutional rights to children, acknowledging that children are different from adults in constitutionally relevant ways. Just as those differences necessitated the prohibition of strip searches in a school setting, they should warrant a more robust protection for youth in the juvenile justice system. What is "reasonable" in the context of the Fourth Amendment for adults may very well be "unreasonable" for children. There is widespread acknowledgement about the trauma imposed by shackling; the harm inflicted on children by state-sanctioned strip searches is exponentially more profound and long lasting. Full protection and respect for the dignity and safety of children will hinge on the Court reaching a different result than it did in Florence.