Cruel and Unusual Trauma: How Eighth Amendment Principles Governing Conditions of Confinement Should Apply to Juvenile Strip Searches

From the Abstract:

This Note argues that the Supreme Court’s “children are different” principle should apply to the constitutionality of the practice of strip-searching youth in juvenile facilities. By acknowledging the unique vulnerabilities of youth to harm caused by strip searches, courts must emphasize the extreme intrusion to a juvenile’s privacy rights. Assigning weight to that extreme intrusion would serve to restrict the scope of how and when strip searches should be implemented, justified only by a serious government interest in conducting such an invasive search. In other words, an individualized reasonable suspicion that a youth presented an imminent threat to herself or to others would have to exist before a strip search was conducted.

Part I of this Note describes how trauma resulting from the use of strip searches specifically harms youth. This Part then outlines the lack of a consistent constitutional standard for challenging the use of strip searches in juvenile detention centers under the Fourth Amendment.

Part II discusses the emergence of the constitutional principle that “children are different” from their adult counterparts in the criminal legal system, through the lens of other conditions and disciplinary practices in juvenile correctional facilities. Next, this Part examines the conditions of confinement imposed on juveniles that have violated the Cruel and Unusual Punishment clause of the Eighth Amendment, and the Due Process Clauses of the Fourteenth and Fifth Amendments. Finally, Part II demonstrates the similarities in the harm caused by strip searches to the harms incident to other conditions of confinement, before describing how strip searches could themselves potentially constitute punishment.

Part III argues that courts should apply the principle of “children are different” to the imposition of strip searches on juveniles in order to affirm the reality that youth are more vulnerable to harm resulting from strip searches. To that end, courts would need to acknowledge the higher degree of invasiveness of these searches from the perspective of children. Acknowledging this severe intrusion would affect the balancing of interests used to justify juvenile strip searches, and thereby require a greater governmental interest before conducting such searches. Put differently, acknowledging this intrusion would restrain the scope of strip searches to those implemented with reasonable suspicion or a higher level of cause.