Guest post: Strip searches in prisons - what is reasonable?

In this first of two articles, guest blogger Mark Hanna analyses recent data revealed on strip searches of New Zealand prisoners. Are these searches both lawful and moral? Do we want a justice system which dehumanises prisoners?

In New Zealand prisons, corrections officers conduct strip searches of prisoners in order to find contraband items such as drugs and weapons. Recently, the Department of Corrections has released information regarding how they have been conducting strip searches in response to two requests made under the Official Information Act. I believe their response to these two requests is cause for concern.

Strip searches are clearly invasive, and it's clear that there is the potential for them to be abused, so it's important that there are appropriate restrictions placed on them in the law and that the Department of Corrections is held accountable for administering them appropriately.

In March, an OIA request regarding strip searches in New Zealand prisons was sent to the Department of Corrections by Ti Lamusse, a member of the activist group No Pride in Prisons.

I happened to see this request, which was made publicly via the website FYI.org.nz, and the response to it raised more questions in my mind. Mx Lamusse's request asked several questions, two of which were:

  • How many strip searches are conducted?
  • How many strip searches find anything?

Corrections released month by month data for the number of strip searches conducted and the number of contraband items found through strip searches, from June 2011 until June 2015. I've reproduced all of this information and some more in a spreadsheet on Google Drive that is publicly accessible, but here is the most recent 12 months of data they released:

Month All Strip Searches
Number of Searches Contraband Finds Finds / Searches
July 2014 10,831 57 0.53%
August 2014 11,471 50 0.44%
September 2014 10,634 24 0.23%
October 2014 10,668 32 0.30%
November 2014 10,078 43 0.43%
December 2014 9,026 37 0.41%
January 2015 9,116 60 0.66%
February 2015 8,399 39 0.46%
March 2015 9,060 35 0.39%
April 2015 8,236 27 0.33%
May 2015 9,439 28 0.30%
June 2015 8,208 40 0.49%
Total 115,166 472 0.41%

Section 98(3) of the Corrections Act 2004 grants corrections officers powers to conduct strip searches:

  • Alongside various events, such as immediately before a prisoner leaves the prison,
  • If a corrections officer has "reasonable grounds for believing" that the prisoner has an unauthorised item. The Act does not contain a definition of "reasonable grounds".

I was surprised to see that there was such a low rate of finding contraband, just 0.41% over that 12 month period. It made me wonder how much more successful the searches conducted based on "reasonable grounds" would be at finding contraband. Their response to Mx Lamusse's request mentioned that:

I can advise that approximately 15 percent of the conducted searches were completed in accordance with section 98(3) of the Corrections Act 2004 and categorised as reasonable cause.

Jeremy Lightfoot, National Commissioner, Department of Corrections

At best, this would have put the find rate of "reasonable grounds" searches at a paltry 2.73%, but that's only if all of the contraband found via strip searches was found in these strip searches. This made me wonder how just many strip searches are conducted under "reasonable grounds", and at what rate they find contraband.

After reading Corrections' response to Mx Lamusse's request, I sent them another OIA request to ask the questions their response had raised in my mind. Two of my questions were:

  • How many strip searches have been conducted under "reasonable grounds", and how many of them resulted in contraband being found?
  • Given the Corrections Act does not define "reasonable grounds" for conducting a strip search, what guidance does Corrections have on this?

After 33 working days, following an extension from the 20 working days usually provided by the Official Information Act, Corrections released month by month data for the number of strip searches conducted under "reasonable grounds" and for the number of contraband items they found. Alongside the information from their response to Mx Lamusse's request, I've put the full data in a spreadsheet on Google Drive. Here is the most recent 12 months of data they released:

Month "Reasonable Grounds" Strip Searches
Number of Searches Contraband Finds Finds / Searches
July 2014 1,543 43 2.79%
August 2014 1,940 16 0.82%
September 2014 1,885 16 0.85%
October 2014 1,343 23 1.71%
November 2014 1,329 16 1.20%
December 2014 1,471 24 1.63%
January 2015 1,770 17 0.96%
February 2015 1,251 25 2.00%
March 2015 1,546 23 1.49%
April 2015 1,247 13 1.04%
May 2015 1,626 21 1.29%
June 2015 1,193 21 1.76%
Total 18,144 258 1.42%

In addition to this, they also released section S0.1.RES.12.01 of the Prison Operations Manual, which details the meaning of "reasonable grounds" in the context of whether or not a strip search can be conducted. You can see this document in their response, but to paraphrase it describes reasonable grounds as including seeing, hearing, smelling, or touching something that makes a corrections officer believe a prisoner has an unauthorised item. It gives examples including overhearing a conversation between prisoners and feeling an item during a rubdown search.

However, in their response they also noted (emphasis mine):

Please find attached S.01.Res.12.01 from the Prison Operations Manual (POM). Please note that the attached document is guidance only. Reasonable grounds is not limited by this and the Department's expectation is that staff use this advice as practice guidance.

Terence Buffery, Acting National Commissioner, Department of Corrections

To me, this sounds like the "reasonable grounds" clause is essentially a blank cheque. Although there are other requirements, such as that strip searches cannot be conducted by a lone corrections officer without another officer present, it seems to me that it is still essentially a licence for strip searches to be conducted for any reason.

I think it would be reasonable to use the rate at which "reasonable grounds" strip searches find contraband as a measure for determining whether or not this clause is being abused. To do this, we should compare it to the results of all searches conducted outside of "reasonable grounds", which can be obtained by looking at the difference between the two data sets:

Month Non "Reasonable Grounds" Strip Searches
Number of Searches Contraband Finds Finds / Searches
July 2014 9,288 14 0.15%
August 2014 9,531 34 0.36%
September 2014 8,749 8 0.09%
October 2014 9,325 9 0.10%
November 2014 8,749 27 0.31%
December 2014 7,555 13 0.17%
January 2015 7,346 43 0.59%
February 2015 7,148 14 0.20%
March 2015 7,514 12 0.16%
April 2015 6,989 14 0.20%
May 2015 7,813 7 0.09%
June 2015 7,015 19 0.27%
Total 97,022 214 0.22%

This puts "reasonable grounds" strip searches at about 6.5 times as likely to find contraband as the routine searches. And that's increased quite a lot from being about 4.2 times as likely in the 2013/14 year. Comparing totals for each year (July - June) reveals another interesting piece of information:

Month "Reasonable Grounds" Strip Searches Other Strip Searches
# Searches Finds Finds / Searches # Searches Finds Finds / Searches
2011/12 27,213 204 0.75% 134,636 119 0.09%
2012/13 49,398 204 0.41% 93,531 135 0.14%
2013/14 33,712 269 0.80% 97,054 183 0.19%
2014/15 18,144 258 1.42% 97.022 214 0.22%

Looking at these totals, we can see that the number of routine strip searches has not been changing much between 2012 and 2015, whereas the number of strip searches conducted under "reasonable grounds" has been falling steadily since its peak in 2011/12.

Stacked bar chart showing decreasing searches 2012-2015 of mixed types

However, as this number falls, the number of contraband items that is being found in these searches has stayed about the same.

This was also noted by Professor Thomas Lumley, from the University of Auckland's Department of Statistics, when he wrote about this on the department's blog StatsChat: Reasonable grounds

Statistical models confirm what the pictures suggest: the number of successful searches is essentially uncorrelated with the total number of searches. This is also basically good news (for the future, if not the past): it suggests that a further reduction in strip searches may well be possible at no extra risk.

Professor Thomas Lumley | StatsChat

Although I still feel like the proportion of searches that find contraband is very low, particularly considering the invasiveness of strip searches, I am glad that there seems to be change moving in the right direction. It will be interesting to see if this trend continues once more recent data becomes available.

However, the incredibly low find rate of the routine searches makes me question their utility. Particularly keeping in mind that they are just as invasive as the much more successful "reasonable grounds" searches. In their response to Mx Lamusse's request, the Corrections spokesperson explained that part of the reason for routine strip searches was for their deterrent factor:

Searches are a means of finding contraband, and they are also vitally important as a deterrent, as our search policy is designed to deter prisoners and their associates from attempting to introduce contraband into prisons.

Jeremy Lightfoot, National Commissioner, Department of Corrections

I think this approach serves to dehumanise prisoners, and as a constant reminder of the incredibly coersive and invasive powers that corrections officers hold over them. I am not convinced that routine mandatory strip searches are necessary as a deterrent, let alone that the benefits of this use outweigh the harm it involves.

RNZ has repoted that human rights lawyer Michael Bott is also concerned by these routine searches:

The Department of Corrections is breaking the law, it's not acting in accordance with the [Corrections] Act, it's a discretion, an officer 'may'. Since when in the English dictionary does the word 'may' mean 'must'. It does become degrading because what they're doing is, without cause, they're making prisoners take their clothes off, squat, lift up their genitals, their breasts, parting their buttocks etcetera.

Michael Bott, speaking to RNZ

Speaking to Morning Report, Mr Bott explained why he thinks these searches are unlawful given that the Corrections Act allows them to be undertaken:

Well [it's unlawful] because there's no exercise of discretion. And the fact is the Court of Appeal and the High Court has found that the routine searching of inmates, without any discretion at all, potentially brings the Department of Corrections in breach of Section 23 of the Bill of Rights Act, and also degrading treatment in terms of Section 9.

And you actually get to that when you have in essence close to 400,000* searches that give you a year with around 1%.

Michael Bott, speaking to Morning Report

*This 400,000 number refers to the 434,304 strip searches conducted not under "reasonable grounds" from June 2011 to June 2015.

RNZ then went on to report that the Ombudsman saying that this data showed Corrections could and should cut down on strip searches:

Prisons should cut back on strip searches given they are finding hardly any contraband, the Ombudsman says.

The chief inspector of the Ombudsman's Crimes of Torture Act, Jacki Jones, said strip searching was highly invasive and should be restricted to when it was truly necessary.

Indiscriminate use of CCTV surveillance in cells and strip search areas could constitute a serious privacy breach, she said.

The Department of Corrections could cut back without compromising the safety and security of staff and prisoners, Ms Jones said.

Ombudsman wants strip searches reined in | RNZ

I dislike strip searches in general because of their invasive and demeaning nature. Although I understand utilitarian arguments around using them to prevent harm, I think it's clear that current practice by the Department of Corrections goes far beyond this. If anything, strip searches should be used only when necessary, yet currently the humiliation of strip searches is used as a deterrent in prisons, and the searches also contribute to the punishment-based mentality that is unfortunately embedded in our justice system: If you are convicted of a crime then strangers will repeatedly make you strip and perform invasive searches on you.

The story doesn't end here. More information revealed in these requests also shines a light on the Department of Corrections mistreatment of transgender prisoners, and the question of how force is applied in strip searches remains unanswered. I detail these issues further in another article.

Mark Hanna (@HonestUniverse) is a web developer by day, and a patient advocate in his spare time. He works through the Society for Science Based Healthcare to combat medical misinformation, in order to protect patients' rights to make informed choices about their healthcare. He also writes a science blog at Sciblogs, and generally tries to do the right thing.

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