Julian Ellis 
There are over two million convicted and detained inmates in the United States housed in an array of federal and state correctional facilities. Although it is recognized that prisoners’ rights are reduced upon admission to these correctional institutions, the United States Supreme Court has consistently held that prisoners are not beyond the reach of the Constitution and its protections. The question, however, is how far should constitutional protections extend, and at what point does the security of others and the overall facility restrict the personal rights of another?
The balance between Fourth Amendment rights and strip-search polices in correctional settings has garnered limited attention from the Court. Moreover, circuit courts’ interpretation of the Court’s limited precedent has been inconsistent, and at times irreconcilable, with the controlling standards. For instance, contrary to the Court’s seminal case, Bell v. Wolfish, a majority of circuits have struck down blanket strip-search policies in lieu of a heightened standard of suspicion requirement for invasive strip searches.
In Florence v. Board of Chosen Freeholders, the Court sought to add clarity to existing law and reign in departing circuit courts by addressing a correctional facility’s blanket intake strip-search policy vis-à-vis Fourth Amendment rights. In a 5–4 decision, the majority—in the face of a highly critical dissent—justifiably resurrected prior precedent by concluding that such strip-search policies do not violate the Fourth Amendment. The Florence Court premised its decision primarily on the security concerns that strip-search policies seek to preclude and the need for deference to correctional expertise.
To ensure equal protection to all, safety and security procedures at correctional facilities are paramount. Although it is essential that detained persons retain foundational constitutional rights, courts must nonetheless weigh these rights against the need for institutional security. The Court in Florence correctly recognized this fundamental need. In holding that the strip-search policies were consistent with the Fourth Amendment, the Florence Court resurrected and further defined its existing jurisprudence that places a greater emphasis on the security of many rather than the rights of a single individual.
The Court’s holding in Florence confirmed that ever-changing security needs are best served at the hands of experienced correctional officials rather than the removed benches of the courts. This arrangement enables correctional officials to develop adaptive, rather than reactive, correctional policies that best protect all individuals involved. Moreover, blanket strip-search policies protect those incarcerated by both subjecting arrestees to the same, consistent policy and by eliminating forms of dangerous contraband.
Despite the Court’s holding in Florence, insightful concurrences by Chief Justice Roberts and Justice Alito point to several potential mitigating factors whereby a blanket strip-search policy may not be within the bounds of the Fourth Amendment. As expanded upon in the Comment, the presence of alternative holding facilities or the emergence of new technologies represent the most viable mechanisms for mitigating the perceived harshness of the Court’s holding.
Although the possible mitigating factors are worthy of consideration, Chief Justice Roberts and Justice Alito’s failure to define and limit these factors will advance unwarranted side-effects. The likely outcome is added discretion among lower courts as they struggle to define and reconcile these considerations with the foundational rules of Bell, and now Florence. In the coming years, the reflection of the circuits will either lead to a continued departure from controlling precedent, or to the establishment of exceptions or mitigating factors that could act as a dampening device to what facially appears to be a degrading rule proffered by the Florence Court.
Chief Justice Roberts closed his concurrence by announcing that the Court is “wise to leave open the possibility of exceptions, to ensure that we ‘not embarrass the future.’” Ultimately, however, it will be those exceptions, or the lack of definition thereof, that inhibits blanket strip-search policies from becoming a foregone conclusion. Instead, as the circuits wrangle with questions left exposed, it is almost certain that the issue will again require a grant of certiorari.
For further explanation and analysis, see Julian Ellis, Florence v. Board of Chosen Freeholders: The Resurrection of Bell v. Wolfish and the Questions to Follow, 90 Denv. U. L. Rev. ____ (forthcoming 2013).
 J.D. Candidate, 2014, University of Denver Sturm College of Law