This Article examines one part of the legal regime administering "mass incarceration" that has not been a focus of legal scholarship: prison and jail policies and regulation. Prison and jail regulation is the administrative law of the "carceral state," governing an incarcerated population of millions, a majority of whom are people of color. The result is an extremely regressive form of policy-making, affecting poor communities and communities of color most directly. This Article proceeds in three parts. Part I first sketches the history of court involvement in prison reform, explaining that prison litigation made institutions more bureaucratic and increased the importance of corrections policies. It then outlines how the legal standards by which courts currently judge corrections policies extend deference to prison officials. Part II discusses the extent to which corrections policies are exempt from state administrative procedure acts: In many states, corrections regulations are exempt or partially exempt from the provisions of state administrative procedure acts. This Part then describes how both prisoners and free communities are affected by corrections policies. Part III argues that, because of this impact, corrections regulations should be subject to notice-and-comment rulemaking or, in the alternative, should be scrutinized more carefully by courts.
14 Berkeley J. Crim. L. 329 (2009)