The Case for a Sixth Amendment Public-Safety Exception after Dickerson

Abstract

Following the events of September 11, 2001, the Department of Justice promulgated a new Bureau of Prisons (BOP) rule that authorizes the government to monitor certain attorney-client conversations in the interests of public safety and national security. Because the BOP rule arguably will not survive scrutiny under traditional Sixth Amendment jurisprudence, the Department of Justice may wish to argue for the creation of a Sixth Amendment public-safety exception akin to that found in the context of the Miranda warnings. In this note, the author posits that support for such an exception under the Sixth Amendment can be premised on the Supreme Court's holding in Dickerson v. United States that Miranda warnings are constitutionally based within the framework of the Fifth Amendment. Because the Court has carved out a public-safety exception for Miranda warnings, which are now viewed as stemming from a constitutional rule, it stands to reason that the Court could do the same in the context of the Sixth Amendment. The author ultimately argues, however, that neither the Court’s uncertain Fifth Amendment jurisprudence nor the policy considerations behind the Sixth Amendment justify creating a public-safety exception to the Sixth Amendment.

Keywords: Sixth Amendment, Miranda, Public Safety, Fifth Amendment, Dickerson