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

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Meg Gould is a member of the Columbia Law School class of 2021.

S.K., a biracial girl from Winnebago County, Wisconsin, was fifteen years old when she was first admitted to Copper Lake School for Girls, a secure juvenile corrections institution.[1] One day, guards accused her of possessing stolen gummy worms. As a consequence of the alleged theft, she was sent to solitary confinement.[2] S.K. was sent to solitary on several occasions while at Copper Lake—one time for passing notes to other youths in her unit.[3] Upon initial intake, after being transferred to solitary, and each time a family member visited, the guards would subject her to strip searches.[4] They required her to take off all of her clothes, ran their hands through her hair, made her display her private parts to them, and mandated that she squat and cough while unclothed.[5] At least some strip searches took place in a room where there was a one-way mirror and a camera: later, she could be watched on video (by any guard, including male guards), and people outside the room could see her naked body through the mirror. On one occasion, a guard strip-searching her wore an activated body camera.[6]

Had S.K. been a fifteen-year-old girl from St. Joseph, Missouri, she would have experienced an almost unrecognizable scenario compared to the one she faced at Copper Lake in Wisconsin. In Missouri she could have been placed to serve her sentence at Riverbend Treatment Center, a secure juvenile facility with an entirely different approach to treating its residents.[7] There, even juveniles who commit a serious offense while residing at the center benefit from an “intentionally humane” environment.[8] In other words, a juvenile like S.K. could have acted out, but the youth specialists would nonetheless treat her empathetically and safely when she did;[9] she could even call a “circle” in order to discuss with the group any problematic (or positive) behaviors or attitudes she experienced.[10] In stark contrast with Copper Lake, solitary confinement is never used as punishment at Riverbend.[11] S.K. would never have been subject to the use of pepper spray as she was at Copper Lake,[12] and strip searches are strictly prohibited.[13]

Children[14] have no control over whether they were born in Winnebago County or the city of St. Joseph, yet if a child happens to spend any time in a correctional facility, location matters. Location determines whether a child might be forced to take part in a “body cavity search” upon intake at a juvenile correctional facility,[15] or whether a child will never have to know what those words mean. While trauma can still occur in institutions designed with the best interests of a child in mind, location ultimately determines whether and how trauma might be structurally enforced.

Although comparatively humane juvenile facilities like Riverbend do exist, strip searches are employed in most juvenile detention and correctional centers across the United States notwithstanding the consequences—in particular, trauma—they may cause.[16] Despite the frequency of the use of strip searches and the increase in claims challenging the constitutionality of certain juvenile conditions of confinement,[17] the Supreme Court has yet to establish a constitutional standard regarding the use of strip searches in juvenile detention or correctional facilities. Outside of conditions of confinement, however, many other constitutional issues related to juveniles have been litigated before the Supreme Court.[18] One principle that has emerged in this jurisprudence is that “children are different”—that children’s vulnerability to harm and susceptibility to outside influences are different from those of adults.[19] This principle was primarily formed through cases evaluating the constitutionality of harsh sentences imposed on juveniles under the Eighth Amendment, but its implications are much broader.[20]

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.

  1.   Amended Complaint at 36, J.J. v. Litscher, No. 17-CV-47 (W.D. Wis. July 10, 2017), ECF No. 13 [hereinafter Litscher Complaint]. S.K. was first admitted in 2015; she was most recently admitted in July 2016. Id. at 36.

  2.   Id.

  3.   Id.

  4.   Id. at 2.

  5.   Id. at 25. One of the other juvenile girls in the lawsuit, A.P., was also subjected to strip searches when she was taken to “solitary [confinement], after family visits, and if someone reported something missing.” She stated that “having the guards stare at her naked body makes her feel dirty.” Id. at 38.

  6.   Id. at 36.

  7.   Richard Mendel, Annie E. Casey Found., The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders 27 (2010), [
    6BJW-XJUJ]. Secure facilities (also known as “long-term secure facilities,” “training schools,” or “juvenile correctional facilities”) are institutions that “provide strict confinement and have construction fixtures or staffing models designed to restrict the movements and activities placed in the facility.” Juvenile Residential Programs, Off. of Juv. Just. & Delinquency Prevention 6 (2019), []. Juveniles housed at these facilities are usually those who have been tried for “serious, violent, or chronic” offenses and “present . . . multiple psychological, social, behavioral, and intellectual needs.” Id. at 7. These facilities often have features like external gates or walls with razor wire, deploy mechanical restraints, or make use of some sort of exclusion; additionally, most of these facilities provide treatment for mental health and substance abuse. Id. at 6–7. In Missouri, youth are sentenced to Missouri Department of Youth Services (DYS) custody—and could be placed at Riverbend Treatment Center—if they committed a “sufficiently serious” infraction and caused “significantly severe” harm. Mendel, supra note 7, at 27.

  8.   Mendel, supra note 7, at 27.

  9.   The Missouri Model describes how, in lieu of training staff as traditional guards or correctional officers, the Missouri DYS instead has redefined the role of frontline workers as “youth specialists,” charged with ensuring the “safety, personal conduct, care, and therapy” of juveniles in their care. These youth specialists are intensively recruited for possessing certain personality traits, including listening skills, empathy, and clear speaking styles; for embodying racial and ethnic diversity; and for having a base level of at least sixty hours of college experience before being hired. Id. at 28, 31.

  10.   Id. at 29.

  11.   Id. at 27.

  12.   Litscher Complaint, supra note 1, at 36.

  13.   Mendel, supra note 7, at 27.

  14.   This Note follows Justice Kagan in Miller v. Alabama, where she used the terms “children” and “juvenile” interchangeably. See 567 U.S. 460 (2012).

  15.   Wis. Stat. § 968.255 (2015); Cal. Stat. § 4031 (2017); see also William Simonitsch, Visual Body Cavity Searches Incident to Arrest: Validity Under the Fourth Amendment, 54 U. Miami L. Rev. 665, 665 (2000) (describing the procedure of a visual body cavity search, in this instance applied to adults).

  16.   Rhode Island, Maryland, Washington, Indiana, Kentucky, Oregon, Mississippi, Texas, California, Georgia, Virginia, West Virginia, Alabama, Wyoming, Massachusetts, Ohio, Utah, and Delaware, among other states, use strip searches; a full list is on file with the Columbia Human Rights Law Review.

  17.   Many juvenile conditions of confinement have been challenged in courts over the past two decades as advocates, organizers, family members, and activists have elevated the issue of children’s vulnerability to harms within detention facilities. See, e.g., A.T. ex rel. Tilman v. Harder, 298 F. Supp. 3d 391, 416 (N.D.N.Y. 2018) (challenging the constitutionality of the use of solitary confinement on youth); J.J. v. Litscher, No. 17-cv-47 (W.D. Wis. July 11, 2017) (challenging the use of solitary confinement, physical restraints, and pepper spray on youth); Doe v. Hommrich, No. 3-16-0799, 2017 WL 1091864, at *1 (M.D. Tenn. Mar. 22, 2017) (challenging the use of punitive solitary confinement on youth).

  18.   See, e.g., In re Winship, 397 U.S. 358 (1970) (holding that a juvenile charged with conduct for which s/he would be criminally liable as an adult has a due process right for the elements of the offense to be proved beyond a reasonable doubt); Kent v. United States, 383 U.S. 541 (1966) (determining whether a juvenile can be waived to adult court); In re Gault, 387 U.S. 1 (1967) (ascertaining what legal rights juveniles have in criminal court); McKeiver v. Pennsylvania, 403 U.S. 528 (1971) (establishing the right to trial by jury for juveniles and other due process requirements); Breed v. Jones, 421 U.S. 519 (1975) (applying double jeopardy protections to adjudicatory hearings); Roper v. Simmons, 543 U.S. 551 (2005) (considering the imposition of the death penalty); Graham v. Florida, 560 U.S. 48 (2010) (considering the imposition of life imprisonment without the possibility of parole); Miller v. Alabama, 567 U.S. 460 (2012) (finding unconstitutional a mandatory sentence of life without the possibility of parole for juvenile offenders.); J.D.B. v. North Carolina, 564 U.S. 261 (2011) (determining whether age is a factor for Miranda purposes); Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009) (deciding the constitutionality of strip searches imposed on juveniles in public schools).

  19.   Miller, 567 U.S. at 470–71 (2012) (“Children are constitutionally different from adults.”).

  20.   See Roper, 543 U.S. at 578 (2005) (concluding that imposing the death penalty on juveniles is unconstitutional); see also Graham, 560 U.S. at 82 (2010) (finding unconstitutional the imposition of life imprisonment without parole on juveniles).

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