This is Still a Profession: Special Administrative Measures, the Sixth Amendment, and the Practice of Law

Abstract

Special Administrative Measures (“SAMs”) are rules meant to let the government restrict the contact that dangerous prisoners may have with the outside world in order to prevent further harm to society. SAMs can result in extremely harsh conditions on top of lengthy solitary confinement—practices that many groups, including the United Nations, believe may constitute torture. SAMs were initially imposed mainly against high-risk detainees, such as prisoners who had ordered multiple murders from behind bars, and high-ranking terrorists convicted of mass murder. However, since 9/11, the application of SAMs to pre-trial detainees, especially Muslim terrorism suspects, has become alarmingly general, often seeming more punitive than preventative in nature, to the detriment of their Sixth Amendment rights. In light of the very serious threat that SAMs pose to fair trial guarantees, future courts should weigh the defendant’s fundamental right to an adequate defense against the seriousness of the risk of future injury or loss of life ordered by the prisoner from behind bars, ensuring that the SAMs imposed on a given prisoner are narrowly tailored to further the state’s admittedly compelling interest in public safety. Applying heightened scrutiny to pre-trial SAMs will allow judges to uphold restrictions against high-ranking prisoners who are truly likely to cause death or injury, as well as protect the integrity of the legal profession and the Sixth Amendment.