Those Outside Our Circle of Concern: Strip-Searches and a Failure of Empathy

By Sherry F. Colb

My Verdict column for this week is about Florence v. Board of Chosen Freeholders, a case that the U.S. Supreme Court will be hearing this coming Term.  Florence involves a challenge to a policy under which detention facilities strip-search all arrestees prior to entry. The policy applies even to those people charged with minor, non-indictable offenses, and it requires no reason to suspect that an individual searched is actually in possession of drugs, weapons, or other contraband.  The Supreme Court upheld a similar policy in the 1979 case of Bell v. Wolfish, but the facts of Florence are arguably distinguishable, as I discuss in the column.  Though I make no strong outcome predictions, I will boldly say here that Justice Kennedy's vote will be important.  Justice Kennedy has a somewhat uneven record when it comes to prisoners' rights, having recently written a majority opinion on the side of California prison reform in Brown v. Plata but having also in the past extended enormous deference to prison officials, including in Washington v. Harper, in which he wrote for the Court that we could trust prison psychiatrists to sedate prison inmates only when doing so was in the patients' medical best interests, even if prison rules did not include any consideration of patient's medical interests.

However the Supreme Court rules, it is noteworthy that our society largely tolerates policies under which incarcerated people are routinely subject to highly invasive and often pointless indignities.  Our threshold for outrage when a victim of harm is not "one of us" -- those we include in our circle of concern -- seems inordinately high.  If we are not personally connected to individuals at the receiving end of the criminal justice system, we may too readily accept as normal and unremarkable the grotesque conditions that prevail in penal institutions.  We  may even take comfort in the belief that our Constitution guarantees prisoners at least some protection.

Many of us would feel differently if the matter were closer to home.  Imagine that the State in which we live passed law requiring every middle school student, at private and public schools, to disrobe the first day of classes in front of a teacher who would visually examine the student's genitalia.  We might well be outraged and immediately ask why such a policy was implemented, what other policies were considered and rejected first, and whether this approach could possibly be necessary to any important objective.  Unless we have no connection to middle school populations, as a parent or other relative, as a child, or as a friend, we would probably not react with indifference and think, "Who cares?  They're only children."

When it comes to people entering a detention facility, however, those of us who have never been arrested and taken to jail tend to react in just this way, a reaction that that leaves prisons free to adopt blanket strip-search policies until a court is ready to declare them unconstitutional.

When I contemplate the impact of an overly narrow circle of concern, my thoughts turn to the animals whose bodies and hormonal secretions have become a part of virtually every meal that most Americans eat.  If our threshold for outrage is high when it comes to prisoners, it is stratospheric when farmed animals are at issue, and the effects are all around us.  Animals on modern farms experience excruciating pain, sickness, stench, and grotesque deprivation almost every day of their short lives, and then they are subjected to a terrifying and painful process of slaughter.  Compared to this torture, an animal on a small family farm who only, as a young baby, is castrated, has his skin branded, or has his ears scissored, all without anesthesia, is a beneficiary of "humane" treatment.  We view as similarly humane the treatment of a mother cow or goat or sheep whose every baby is forcibly removed from her side so her milk can be diverted to humans, and who is later slaughtered at the age of 5 for hamburger meat, but who was allowed out of doors and given some grass on which to graze.

We not only feel no outrage about the suffering we support, but we may even feel pride when we buy "local" or "organic" animal products, imagining that we have done well by the animals.  It is so easy for us to forget to ask the question "Is this necessary?" when it comes to those outside our circle of concern, and the animals we consume seem as far outside as a living and sentient being could possibly be.  Are blanket strip searches necessary (or even effective) means of securing jails?  I doubt it, and the policy in Florence did not rest on any demonstrated need or utility.  Is the consumption of animal products necessary (or even beneficial) to a good human life?  It is not, as people are slowly but surely recognizing.

I heard recently about a scientist who suggested that we might have a different attitude toward other animals if  some of the other hominid species, including the Neanderthals and Homo Habilis, had survived to live among us.  The suggestion was that with some of these "missing links" around, we would have an easier time understanding how much we share (in our experiences of pain, pleasure, fear, anger, and psychological distress) with our fellow earthlings, even those very different from ourselves.

I am quite skeptical of this idea.  Human beings have a remarkable ability to expand and also to contract our circle of concern, with or without the presence of Neanderthals or Homo Habilus in our midst.  When we put our minds and hearts to it, we can feel empathy and extend our conscience to those well outside of our species -- this is why some of us take such loving care of our companion animals.  At the same time, when we take our minds and hearts out of it, we are capable of viewing others of even the same species as so alien to us that we need not bother refraining from enslaving and even killing them.  The path out of violence and indifference to violence is as simple as it is radical:  expanding our circle of concern to all of those capable of suffering, and  understanding that unnecessary violence and cruelty, whether inflicted on a jail inmate, an "enemy" or an animal, impoverishes our world.  Two quotes from Albert Schweitzer speak to this idea:   "Think occasionally of the suffering of which you spare yourself the sight." and "Until we extend our circle of compassion to all living things, humanity will not find peace."