Are Strip Searches in Prison Constitutional? Henry v. Hulett, Seventh Circuit Court of Appeals, Decided July 16, 2019

Are strip searches in prison constitutional?

In general, the answer is yes. Prison guards can perform strip searches when necessary – there is no way around it when inmates routinely conceal contraband items, including weapons, beneath their clothing or even inside body cavities.

What if there is no reason for the strip search? Is it okay for a prison to conduct mass strip searches of female inmates for training purposes? What if the “training” is not even required for the cadets’ graduation?

What if they are not even told what is happening when they are handcuffed and forced to strip, standing in a line shoulder to shoulder in full view of other guards, trainees, and even civilians?

What if male corrections officers are standing nearby just to watch?

What if they are forced to raise their breasts, then bend over and spread their butt cheeks to expose their vaginas to onlookers? Forced to pull bloody tampons from their vagina as everyone watches, as they stand barefoot on a filthy floor that is now streaked with menstrual blood?

What if guards and trainees are permitted to make fun of the women’s bodies, cursing at them, calling them “dirty bitches,” “fucking disgusting,” telling them that they “deserve to be in here,” and that they “smell like death?”

Do we need a law or a constitutional provision to tell people that this is not okay? Apparently, we do. And, even then, the Constitution is not enough for some judges. In Henry v. Hullet, two of three male justices on a three-judge panel found that these facts are perfectly acceptable and that the Fourth Amendment offers no protection for the women.

Sometimes an attorney must resist the overwhelming urge to scream, throw her computer out of the window onto the street below, and retreat to a cabin deep in a mountain forest away from civilization.

Instead, we must look to the law, as futile as it sometimes seems, and find the right words that, hopefully, will imbue the courts and those in power with humanity and decency.

Are Strip Searches in Prison Constitutional?

What constitutional protection prevents the government from committing degrading, inhuman acts on human beings? The Fourth Amendment? The Eighth Amendment? Both? History and experience have proven that humans – and governments – will hurt and demean other humans in the worst possible ways if they are given the opportunity.

The law must protect the most vulnerable among us from the sick minds among us who lack empathy and compassion or who take pleasure in hurting and demeaning others. Who is more vulnerable than women, locked in a prison, handcuffed, facing prison guards who are yelling, cursing, and ordering them to expose their genitals?

Under the facts of Henry, the Fourth Amendment should have protected the female inmates from the abuse to which they were subjected. The Eighth Amendment should have protected the female inmates from the abuse to which they were subjected. The most basic values I want to believe all people hold should have protected the female inmates from the abuse to which they were subjected.

The District Court judge, a jury in the trial on the plaintiffs’ Eighth Amendment claim, and a three-judge panel of the Seventh Circuit Court of Appeals all failed to protect female inmates from what looks like gratuitous sexual abuse, misogyny, and unnecessary cruelty. Possibly the full Seventh Circuit or the US Supreme Court will take up the case and correct the injustice.

Don’t hold your breath.

Does the Eighth Amendment Protect Against Unreasonable Strip Searches?

The Eighth Amendment might protect inmates against unreasonable strip searches, although it did not in this case.

At trial, the district court allowed the plaintiffs’ Eighth Amendment claim to go forward, but the jury found in favor of the defendants. That doesn’t necessarily mean that the jurors thought that what happened was okay – it means that the jurors did not think that the prison should have to pay damages for what they did.

To succeed on the Eighth Amendment claim, the plaintiffs needed to show that “an unnecessary or demeaning inspection amounts to punishment,” and they needed to prove the subjective mental state of the defendants. If jurors find that the sexual abuse inspection was not intended as punishment, then they must find in favor of the prison…

Does the Fourth Amendment Protect Against Unreasonable Strip Searches?

The district court granted summary judgment to the prison on the plaintiffs’ Fourth Amendment claim, finding that the Fourth Amendment does not protect female inmates from unnecessary, demeaning, invasive strip searches that border on sexual abuse. Two of three male judges on the Seventh Circuit Court of Appeals agreed.


They relied on Hudson v. Palmer, a US Supreme Court opinion that held prisoners lack any privacy interest in their cells.

The Fourth Amendment does not apply to an inmate’s possessions and surroundings because “judgments of conviction allow wardens to control and monitor their charges’ lives, extinguishing the rights of secrecy and seclusion that free people possess.”

Somehow, the Seventh Circuit has interpreted this to mean that wardens have the power to unnecessarily degrade, demean, and forcibly sexually harass female inmates in what, for many sick minds, could have been a sadistic porn film. Somehow, they interpreted this to mean that women in prison have no privacy interest in their vaginas.

If female inmates have no privacy interest in their vaginas, and the method of inspection is irrelevant to the courts, what else would be okay with the courts? It’s difficult to think of a method of searching a woman’s vagina that is more degrading and dehumanizing than what was done in this case, but…

Would it Make a Difference if the Justices were Female?

Maybe we will find out if the full court reviews the three-judge panel’s decision.

The district court judge who denied the Fourth Amendment claim was a male, Judge Richard Mills.

The two deciding votes on the three-judge panel were male, Justices Easterbrook and Manion, while Judge John Z. Lee, a district court judge sitting by designation, was the only judge thus far who believes the Fourth Amendment protects female inmates from this type of abuse.

Five of fourteen justices on the full court for the Seventh Circuit Court of Appeals are female. Will they agree with their male colleagues that the Fourth Amendment provides no protection under these facts?

Federal Criminal Appellate Lawyer in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.