74 Am. U. L. Rev. 45 (2024).
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Abstract
This Article examines a matching pair of gaps in the legal literature on prisons and the administrative state. On the one hand, prison law focuses on constitutional protections for prisoners. As such, it emphasizes the minimum conditions the Constitution ensures for the nearly two million individuals currently incarcerated throughout the United States. What this focus misses, however, is the administrative nature of these institutions. With vast powers delegated to prison departments, prison law often fails to fully engage with the administrative nature of power and decision-making within prison departments. This administrative structure shapes the conditions that prevail inside American prisons.
On the other hand, because scholarship on administrative law is written from a transsubstantive perspective, it tends to ignore prisons and focus instead on paradigmatic administrative agencies. In doing so, it fails to recognize the extent to which the protections deemed essential to, and legitimizing of, the administrative state fail either to properly function or even exist in the carceral state. Doctrines of judicial deference, a lack of political will on the part of legislatures to check prison departments, and a general failure to implement a system of internal checks and balances ensure that American prisons function with only limited substantive oversight or accountability.
After identifying and tracing the contours of these gaps in the literature, this Article argues that more direct engagement with the administrative nature of the carceral state could clarify significant shortcomings in both bodies of literature. Prison law, which has found the Constitution to provide a decreasing amount of protection for prisoners, may find a focus on administrative forms of accountability to be a new avenue for improving the conditions of confinement. Scholarship on administrative law, which tends to prefer substantial deference to administrative officials, must grapple with the full breadth of the administrative state and include prisons within its gambit. Doing so may force scholars of the administrative state to admit a greater need for oversight and accountability of some agency administrators, especially when those administrators have power and control over especially vulnerable populations like prisoners.
* Associate Professor, Suffolk University Law School. J.D., Ph.D. in Law & Society, New York University; B.A., Northwestern University. E-mail: ebraatz@suffolk.edu. Thank you to the members of the Suffolk University Women and Incarceration Project, including Amy Agigian, Rachael Cobb, Rachel Roth, Susan Sared, Rebecca Stone and Norma Wassal. Early conversations with Hiba Hafiz were particularly helpful. Extra thanks are owed to my research assistants, Tamara Stein and Kendall Musgraves. For this and all things, thank you to John Infranca.