explaining that “what is or is not an indignity is largely a matter of social and indi- vidual psychology,” and “a practice may appear to be so from the purpose of its imposition” among other perspectives
How later courts described this case
- explaining that “what is or is not an indignity is largely a matter of social and indi- vidual psychology,” and “a practice may appear to be so from the purpose of its imposition” among other perspectives
- proper sequence is to analyze state law, including constitutional law, before reaching federal constitutional claim
- ''The guarantee against 'unnecessary rigor' is not ... confined only to such historically 'rigorous' practices as shackles, the ball and chain, or to physically brutal treatment or conditions, though these are the most obvious examples."
- relying on Universal Declaration of Human Rights to interpret state constitutional provision relating to treatment of prisoners
Written by the judges who cited it.
The opinion
TANZER, J.,
dissenting.
I disagree with the majority as a matter of degree rather than of theory. I believe as a matter of firm conviction that the courts should intervene into the management of prisons only with great restraint and only for reasons of sufficient magnitude to justify extraordinary action. I do not suggest that constitutional rights of prisoners should be protected with less vigor than the rights of others. Rather, it is my profound belief that courts should not regard the federal or the Oregon constitutions as licenses for the imposition of judicially preferred practices upon the prison system.
The controlling fact of this case is that there is no challenge to the authority of the state to subject plaintiffs to searches. The only challenge is to the authority of the *638 to searches. The only challenge is to the authority of the state to have the searches performed by persons of either sex.
For that reason, I see no violation of plaintiffs’ reasonable expectation of privacy. They concede that their privacy may be intruded upon. As prisoners, plaintiffs’ expectation of privacy is not lessened and their exposure to searches is not enlarged according to the sex of the person searching.
I agree that the constitutional term "unnecessary rigor” applies to penal action which abuses prisoners physically or emotionally. Bread and water, torture, exhausting labor, public display, inadequate shelter and emotional harassment come to mind as examples of the kinds of physical or emotional torment which the "unnecessary rigor” clause was intended to prevent. Pat-down searches by persons of either sex does not come anywhere close to the magnitude of those examples of rigor, although subjection to heterosexual or homosexual fondling or sexual activity by guards would be. I see no evidence that the "unnecessary rigor” clause was intended to authorize the courts to enforce standards of delicacy or courtesy among adults in prison in the name of the constitution. Standards formulated by organizations and institutions such as the American Bar Association and the United Nations are worthy of respectful attention from the legislature or the executive branch, but they are no substitute for the constitution and they do not provide a mandate for judicial intervention.
The conduct of otherwise permissible searches by persons of either sex is not a breach of fundamental civility which is constitutionally forbidden as "unnecessary rigor.” For these reasons, the injunction should have been denied.
Peterson, J., joins in this dissenting opinion.