We know very little about how decisions to build prison are made, or, to be more accurate, how such decisions develop and evolve in the political process. Filling prisons with convicted felons requires a vast number of small decisions by police, prosecutors, judges, and probation and parole personnel. In contrast, building prisons requires a small number of large decisions by key political agencies and actors, including the Department of Corrections, the Division of the Budget, the Governor’s Office, legislative committees, and occasionally the electorate. Local community groups play a role in the politics of prison construction, frequently acting as a lobby or litigant opposing a particular proposed site. The federal courts play a role when, on constitutional grounds, they foreclose the option of crowding more prisoners into existing facilities. Citizens’ commissions may also play a role, although not always the same one: they may be appointed to increase the political legitimacy of the Governor’s decision, or to politically defuse or bury the issue.
This Article describes the political and legal processes of prison expansion, and identifies the kind of empirical questions that a comprehensive study of expansion politics must address. In addition, this Article raises a number of questions about how key decisions on prison expansion should be made. A better understanding of the process of political decision-making may lead pro-builders and anti-builders alike to redesign the processes or, at the very least, to re-examine their assumptions and role conceptions.
This Article maps the political terrain, identifies key features of the political landscape, and suggests hypotheses about the way different interests combine or collide. In developing a framework for understanding “the politics of prison construction,” I will draw upon examples from New YorkState, which has greatly expanded its prison capacity in the past decade in order to meet the enormous increase in the number of prisoners. Although no typical state or political scenario exists, certain political ingredients and scenarios common to the resolution of prison expansion issues can be identified.
Each section of the Article focuses on a different political organ’s role in resolving the question of prison expansion. Section II analyzes the role of the Department of Corrections, the executive branch agency with front line responsibility for administering prisons. Section III focuses on the role of the electorate and considers certain constitutional and philosophical questions about how plebiscites on prison expansion should be conducted. Section IV turns to the legislature, and identifies real and perceived political costs in taking positions which favor or oppose prison expansion and in voting for any particular expansion plan. Section V identifies the interests of local governments in the state’s expansion policy. Section VI briefly examines the role of citizens’ commissions in producing or avoiding resolution of prison crowding.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.