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

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Katherine Erickson is a Staff Attorney with New York Legal Assistance Group’s LegalHealth Unit.

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.

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Detention on Discriminatory Grounds: An Analysis of the Jurisprudence of the United Nations Working Group on Arbitrary Detention

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Leigh T. Toomey was appointed by the Human Rights Council as a member of the Working Group from August 1, 2015. Since April 2016, she has served as Vice-Chair on Follow-Up, with responsibility for the follow-up of recommendations made in Working Group opinions and during its country visits.

Over the last 27 years, the United Nations Working Group on Arbitrary Detention has developed a rich jurisprudence on the circumstances in which individuals have been arbitrarily detained. Until recently, most of this jurisprudence focused on detention resulting from the exercise of rights and freedoms, and serious violations of the right to fair trial. The Working Group is increasingly receiving communications involving detention on discriminatory grounds and its findings are evolving in response. Despite significant progress, there are several issues yet to be resolved by the Working Group as it moves toward a more comprehensive equality-based conception of arbitrary detention. The unresolved issues include the need for greater clarity on what constitutes discrimination; how to deal with laws that are discriminatory; how to distinguish between detention resulting from the exercise of rights and from discrimination; whether protection should extend to a broader range of individuals and groups; why poverty matters in detention practices, and whether the Working Group’s recommendations and follow-up need to be tailored in cases of discrimination. This article offers suggestions on the direction that the Working Group might take in its jurisprudence to resolve these remaining areas of uncertainty, including clarifying the circumstances in which differential treatment will amount to discrimination, determining that detention arising from discriminatory laws has no legal basis, taking a flexible approach to the overlap in the categories it employs to evaluate arbitrary detention, incrementally extending protection to marginalized groups such as those living in poverty, making recommendations to address the structural causes of discrimination, and using its follow-up procedure to highlight cases of detention on discriminatory grounds.

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When Death Becomes Murder: A Primer on Extrajudicial Killing

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William J. Aceves is the Dean Steven R. Smith Professor of Law at California Western School of Law.

International law prohibits the arbitrary deprivation of life, which includes extrajudicial killing. This norm is codified in every major human rights treaty and has attained jus cogens status as a non-derogable norm in international law. In the United States, the Torture Victim Protection Act (“TVPA”) establishes civil liability for extrajudicial killing. As evidenced in the TVPA’s text and legislative history, the definition of extrajudicial killing is based on international law. Despite the clear meaning of the TVPA’s text and the clarity of international law, the TVPA’s definition of extrajudicial killing is still contested in litigation, and some courts express uncertainty about its meaning. This raises a simple question: what constitutes an extrajudicial killing? This Article reviews the status of extrajudicial killing and clarifies its discrete elements under international law. It then considers the status of extrajudicial killings in the case of Mamani v. Berzain, a TVPA case involving the responsibility of the former President and Defense Minister of Bolivia for the killing of civilians in a 2003 government crackdown.

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Constitutional Cities: Sanctuary Jurisdictions, Local Voice, and Individual Liberty

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Toni M. Massaro is Regent’s Professor and the Milton O. Riepe Chair in Constitutional Law at University of Arizona James E. Rogers College of Law.

Shefali Milczarek-Desai is the Director of the Workers Rights Clinic and Professor of Practice at University of Arizona James E. Rogers College of Law.

The United States is deeply divided on matters that range from immigration to religion to fracking. “Blue” states resist “red” federal policies, and intra-state disputes pit state legislatures against recalcitrant local governments. One of these intergovernmental policy flare-ups involves so-called “sanctuary jurisdictions”—government actors that object to more aggressive immigration enforcement by slow walking their voluntary compliance or denying it altogether. In some cases, they have filed lawsuits to voice their dissent.

This Article analyzes the recent wave of sanctuary jurisdiction lawsuits in detail and identifies ways in which they undermine claims that local governments are powerless in the face of federal or state authority. Structural and civil liberty constitutional rights may protect local governments from some state and federal mandates. Local residents too may have resistance options beyond the voting booth and the moving van.

This should matter to all sides of the immigration debate: those who support the federal government’s strict immigration policies, those who favor state-federal cooperation in enforcement, and those who believe local jurisdictions should be given room to resist on policy grounds. But local governments’ right to dissent goes beyond immigration law. The sanctuary jurisdiction controversy may guide local officials in many other areas, and help illuminate how and when they may assert local rights.

This Article outlines the contours of potential local rights and makes three descriptive claims. First, respect for local power is on the firmest ground when it fortifies constitutionally sound government, top to bottom. Second, these tools of local resistance are quite limited. They work only in cases where upper level government mandates are beyond the constitutional pale or debatably so, and where courts can and should play a role in calling the lines. Third, they are available to all local government actors, not merely to progressive urban actors. The Article also makes the following normative claim: preserving constitutional breathing room for local dissent is critical to a healthy interchange between and among federal, state, and local governments. Above all, it promotes fundamental liberty values.

This is not a “city power” manifesto; it is a “constitutional city” manifesto. This Article maintains that the articulation and enforcement of constitutional ground rules is particularly critical in the current moment of hyper-partisanship and centrifugal forces that undermine union and intergovernmental cooperation. A call to these basic principles may offer Americans the hope of a fair game, however intensely and politically the game is fought.

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