Treatment of arrested diplomat was typical in US
Saturday, December 21, 2013
NEW YORK (AP) — It has sparked protests outside the American embassy in New Delhi. Burnings of President Barack Obama’s photo. And angry speeches by Indian officials.
But the arrest — and, yes, even the strip search — of an Indian diplomat accused of visa fraud also revealed a simple and longstanding reality of the U.S. justice system: Everyone charged with a crime here is supposed to be treated the same, whether wealthy or destitute, prominent or ordinary, citizen or foreigner.
“There is a remarkable and almost charming egalitarianism in it,” said New York City defense attorney Ron Kuby. “Everybody is treated in exactly the same disrespectful, casually brutal and arrogant fashion.”
The United States is the only place where “the rich as well as the poor get to sleep on cold floors and urinate in overflowing toilets — together.”
Indian officials have been fuming over the way federal marshals handled Devyani Khobragade, the country’s deputy consul general in New York, calling the treatment degrading and inhumane. Yet most Americans would find the procedures fairly typical for a criminal case — though certainly not pleasant.
Khobragade, who was arrested last week outside her daughter’s school, complained that she was strip-searched and held in a cell “with drug addicts” until her appearance before a judge.
She posted $250,000 bail and was released. And she insists she is not guilty of charges she submitted false documents to obtain a visa for an Indian woman who worked as her housekeeper in Manhattan.
The case stirred widespread outrage in India, where the idea of an educated, middle-class woman being strip-searched is almost unheard of, except in the most extraordinary crimes. The fear of public humiliation resonates strongly there, and heavy-handed treatment by the police is normally reserved for the poor.
U.S. Attorney Preet Bharara, who brought the charges, was born in India and raised here. He said the diplomat was “fully searched” by a female deputy, which is “standard practice for every defendant … in order to make sure that no prisoner keeps anything on his person that could harm anyone, including himself.”
Khobragade’s lawyer said “similarly situated individuals of her stature are routinely provided an opportunity to report to the authorities to address charges at their convenience, instead of being swept off the street like a common criminal.”
In India, the wealthy fearing arrest often approach courts for anticipatory bail, a means of avoiding arrest. The poor cannot afford that luxury because they are not in a position to hire prominent attorneys and pay legal costs. Influential politicians sometimes feign illness after an arrest to get shifted to hospitals rather than prisons.
But in the United States, defendants of all types are routinely searched, photographed and fingerprinted before going to court.
When Dominique Strauss-Kahn, at the time a contender for the French presidency, was arrested in New York in 2011 on sex-assault charges, photos of the diplomat in handcuffs walking out of a police precinct drew outrage in France, where the images would have been illegal. But they are routine in the U.S.
Nationwide, deputy marshals have discretion to do “in-custody” searches or — if deemed warranted — more intrusive strip searches, according to a U.S. Marshals Service directive obtained by The Associated Press.
With in-custody searches, deputies have the prisoner remove only outerwear, shoes and contents of pockets. By contrast, the memo describes a strip search as “a complete search of a prisoner’s attire and a visual inspection of the prisoner’s naked body, including body cavities.”
The directive says a strip search may be conducted if there’s reason to suspect the prisoner may be carrying weapons or contraband. The suspicion could be based on the nature of the crime, the prisoner’s demeanor, the circumstances of the arrest or other factors.
The rules also state that the strip searches must be conducted in a private area, with a witness of the same sex as the prisoner and “in a professional manner causing the prisoner as little embarrassment as possible.”
Marshals Service spokeswoman Nikki Credic-Barrett said Khobragade was strip-searched based on another criteria specified in the directive — elevated security at the institution where the prisoner is detained.
Khobragade is being prosecuted in the Southern District of New York, a region that has handled multiple terrorism, drug trafficking and organized crime cases. She was not subjected to a cavity search, they said.
Because Khobragade was being placed in a cell with the general population, it was “paramount” that she be searched in the same manner as other prisoners, Credic-Barrett said in a statement.
The issue of strip searches of foreign women from conservative cultures surfaced at the same Manhattan courthouse in the case of Aafia Siddiqui, an American-educated Pakistani woman accused of being an al-Qaida supporter. At one point, Siddiqui refused to come to court, saying through her lawyers that she did not want to endure the humiliation of a strip search — a precaution taken with prisoners being moved between federal lockups and courthouses.
At a 2010 trial where she often kept her face hidden with a head scarf, Siddiqui was convicted of trying to kill FBI agents and U.S. soldiers who tried to interrogate her in 2008 in Afghanistan. She was sentenced to 86 years in prison.
Khobragade could face a maximum sentence of 10 years for visa fraud and five years for making a false declaration if convicted. She has said she has full diplomatic immunity. The State Department disputes that, saying her immunity is limited to acts performed in the exercise of consular functions.
Last year, the Supreme Court ruled in a 5-to-4 decision that authorities can strip-search people arrested for even minor offenses before jailing them, even if there’s no reason to suspect the presence of contraband. The high court did not require strip searches, but it ruled that the Fourth Amendment does not forbid them.
In a dissent, Justice Stephen Breyer cited briefs claiming people charged with violating a leash law, failing to pay child support and driving with a noisy muffler were subjected to indiscriminate strip searches. He called the practice “a serious affront to human dignity and individual privacy.”
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