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Decent Decisions

When public officials ignore the line between basic right and wrong in the treatment of other human beings, it is the courts who remind them where the line is and why it matters.
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Victories for prisoners seeking relief from abusive prison conditions are all too rare. US courts are often as loathe to condemn the mistreatment of inmates and wretched prisons as the public is willing to condone -- if not encourage -- them.

Sometimes, however, inmates prevail. Two recent court decisions come to mind. One involved a cross gender strip search in jail. The other involved overcrowding in California's prisons.

Different as the legal and factual issues were n each case are, both decisions are animated by a fundamental principle: the dignity of everyone, including those who find themselves on the wrong side of the law.

Needless to say, one doesn't hear much about the dignity of inmates in public discourse. Most public officials no doubt believe it would be political suicide to utter the words, even though the United States is a party to the International Covenant on Civil and Political Rights, which expressly states that those deprived of their liberty "shall be treated with humanity and with respect for the inherent dignity of the human person."

Even if public officials eschew the notion, dignity is sometimes the touchstone that guides US courts to decisions that protect prisoners' rights.

In Byrd v. Maricopa County Sheriff's Department, a pretrial detainee challenged a strip search in the Maricopa County jail run by Sheriff Joe Arpaio, who is justly infamous for authorizing a range of indignities and abuses, e.g., dressing his male detainees in pink underwear, housing them in tents in the broiling Arizona summers, feeding them moldy bologna, and, until stopped by the courts, operating webcams that streamed live pictures from inside the jail on the world wide web. Charles Byrd, like the others in his housing unit, was ordered to strip to his boxers and submit to a full body search for contraband. A female searched him: as part of the search she moved his penis and scrotum aside with her latex-gloved hand and ran her hand up between his buttocks, although she did so from the outside of what the court noted was "very thin" underwear.

The federal court of appeals for the Ninth Circuit began its analysis of the constitutionality of this search with a reminder that the desire to shield one's naked body from strangers of the opposite sex is "impelled by elementary self-respect and personal dignity." It noted previous decisions frowning on cross-gender strip searches except in the case of emergencies, and it quoted from the National Prison Rape Elimination Commission, of which I was a member, that "searches carried out by staff of the opposite gender heighten the potential for [sexual] abuse.'' Its conclusion: Byrd's nonemergency cross-gender strip search was unreasonable, violating the "privacy interest of inmates in their personal dignity." The US Supreme Court refused to review the case.

Dignity was also central to last month's Supreme Court decision in Plata v. Brown, which upheld a lower court decision ordering California to reduce prison overcrowding so that unconstitutionally deficient medical and mental health care could be remedied. In his dissent, Justice Scalia called the majority decision "radical." But what was radical was the deadly dysfunction in the state's prisons caused by an endless onslaught of prisoners. Medical and mental health services could not keep up; prisoners died needlessly.

Two decades of court orders, promises, special masters and plans had made little difference. The Court rightly decided that the judiciary had the authority and responsibility to order the state to stop fiddling while Rome burned. In addition to a careful exegesis on the scope of judicial powers and impact of legislative constraints, Justice Kennedy's majority decision is replete with statements about dignity. For example:

"A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society."

Byrd and Plata are welcome decisions. Each reminds us of the indispensable role of courts in protecting the dignity and rights of the most vulnerable among us -- those behind bars. When public officials ignore the line between basic right and wrong in the treatment of other human beings, it is the courts who remind them where the line is and why it matters. The pity is that officials so often need to be reminded.

Jamie Fellner is senior advisor in the US Program of Human Rights Watch and
writes extensively about US prison conditions.

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