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Ad Law Incarcerated

Berkeley Journal of Criminal Law, Vol. 14, p. 329, 2009

66 Pages Posted: 11 Aug 2009 Last revised: 28 Dec 2011

Giovanna Shay

affiliation not provided to SSRN

Date Written: 2009


Prison and jail regulation is the administrative law of mass incarceration. Although the United States imprisons more people than any other nation, our corrections policies are a legal 'no man’s land.' Scholars ignore them. Courts defer to them. States routinely exempt them from their administrative procedure act requirements. This Article focuses on the largely unexamined area of corrections regulation and makes the case for subjecting corrections policies to notice- and-comment rulemaking, or according them less deference. Corrections rules became increasingly important when the first wave of prison reform efforts produced bureaucratization of prison systems in the 1970s and early 1980s. Subsequently, incarceration rates sky-rocketed, particularly for people of color. While courts have abandoned an explicit 'hands-off' policy towards prisons, they have switched instead to a posture of deference to corrections policies. As a result, prison and jail regulation is a legal regime that reinforces racial hierarchies. This Article discusses the wide range of corrections policies that affect prisoners and their families, as well as free communities. With 700,000 prisoners returning home annually, it argues, we cannot ignore prison and jail regulation, for reasons of public health and safety, if not fairness. The Article canvasses state administrative procedure acts and confirms that corrections policies are often exempt or partially exempt from rulemaking requirements. It calls for greater opportunities for democratic participation, accountability, and transparency in corrections rule-making.

Keywords: administrative law, criminal law and procedure, prisoners rights

Suggested Citation

Shay, Giovanna, Ad Law Incarcerated (2009). Berkeley Journal of Criminal Law, Vol. 14, p. 329, 2009. Available at SSRN:

Giovanna E. Shay (Contact Author)

affiliation not provided to SSRN

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