Privatization, Prisons, Democracy, and Human Rights: The Need to Extend the Province of Administrative Law

Introduction

Administrative law has an important role to play when it comes to providing democratic forums for deliberation and decisionmaking on a wide range of issues. In this paper, I will argue that domestic administrative law potentially offers a means for addressing human rights problems arising from privatization, particularly privatization in the United States dealing with prisons. As this paper will argue, creating opportunities for citizen involvement in what otherwise might be thought of as private decisionmaking processes may help prevent human rights problems before they occur. At a minimum, such an approach can create the forums and information necessary for meaningful and timely politics to develop around issues that, once privatized, can all too easily fall from public view. To make these arguments, this paper will focus exclusively on U.S. law as a case study of these issues.

Administrative and regulatory law scholarship in the United States traditionally has involved the study of two key relationships: the relationship of the individual to the state¹ and the relationship of markets to the state.² The first relationship-individuals and the state-involves analyses of the procedures used by administrative agencies as they seek to carry out their substantive statutory goals. As this paper will argue, analyses of the relative fairness, transparency, and public participation available to citizens in what many take for granted as wholly private domains is necessary. Administrative law now no longer can remain state centric in its focus.

The second relationship-markets and the state-involves questions of the appropriateness of state intervention in markets to encourage or mandate certain outcomes or behavior. The substance and the perceived legitimacy of the law that develops from such interventions has had much to do with the procedures that ultimately implemented it. Particularly when legislation has involved ideological disagreements, continuing conflicts involving the legitimacy of the laws passed by Congress often have been expressed procedurally.³ Procedures and administrative structures have been substituted for alternative substantive political compromises.⁴ Today, markets are often substituted as a means for achieving public goals and resolving political disputes over how best to achieve them. The fusion of the market and the state in many contexts also requires a reassessment of the principles and reach of traditional administrative law.

Administrative law in the United States traditionally has been conceptualized in a state centric fashion-as a bridge between the market and the state. These two realms-markets and states-have stood for very different worlds, signaling binary approaches to obligations and constraints.⁵ Markets are said to stand for private ordering as opposed to state regulation; free markets as opposed to government bureaucracies.⁶ An important constitutionally based version of the public-private distinction derives from these differences. The state action doctrine is based on the explicit text of the Constitution imposing various restrictions on the exercise of state power: "Congress shall make no law,"⁷ "nor shall any State deprive any person of life, liberty, or property, without due process."⁸ American administrative law has followed these broad constitutional outlines. It was created primarily for public bodies.⁹ Private actors and federal corporations have always played an important role in the regulatory process, but the resort to the market in terms of regulatory approaches and structures has become increasingly common and is now very much a part of the regulatory landscape.

Privatization and various forms of private ordering, in general, have become more and more common as reforms, as we move from a focus on government to a study of new conceptualizations of the processes of governance.¹⁰ Privatization in the United States usually takes the form of giving over to the market the provision of services once provided by government.¹¹ For example, prisons, welfare, mental health facilities, and social services for the poor in general have all been subjected to the reform of privatization.¹² The political decision to move a service or governmental responsibility from the public side of the ledger to the private side is consequential. It is, in effect, a...