No prisoner left behind? Enhancing public transparency of penal institutions.

• Author: Armstrong, Andrea C.

Prisoners suffer life-long debilitating effects from their incarceration, making them a subordinated class of people for life. This Article examines how prison conditions facilitate the creation and maintenance of a permanent underclass and concludes that enhancing transparency is the first step towards equality. Anti-subordination efforts led to enhanced transparency in schools, a similar but not identical institution. This Article argues that federal school transparency measures provide a rudimentary and balanced framework for enhancing prison transparency through the collection of specific institutional data.

INTRODUCTION I. CURRENT EFFECTS OF INCARCERATION II. SCHOOLS AND PRISONS AS COMPARABLE INSTITUTIONS A. Facial Similarities B. Deference to Administrators C. Duties and Obligations of Administrators D. Similar but Not Identical III. ENDING PERMANENT INEQUALITY IN SCHOOLS A. Initial Steps B. The No Child Left Behind Act IV. TRANSPARENCY (AND THE LACK THEREOF) A. Transparency Defined B. Lack of Transparency in Penal Facilities C. More Transparency? V. ENHANCING PENAL INSTITUTION TRANSPARENCY A. Critical Data to Address Incarceration Inequality 1. Physical Safety 2. Medical 3. Institutional Employment/Education 4. Internal Discipline 5. Recidivism B. A Federal Approach to Collecting Data CONCLUSION INTRODUCTION

When a sheriff or a marshall [sick] takes a man from the courthouse in a prison van and transports him to confinement for two or three or ten years, this is our act. We have tolled the bell for him. And whether we like it or not, we have made him our collective responsibility. We are free to do something about him; he is not. (1) The public has little idea what happens behind prison walls. Prisons and jails are essentially "closed institutions holding an ever-growing disempowered population." (2) In a democratic country such as the United States, however, prisons are administered in our name and on our behalf. Prison is a critical, but neglected, element of our criminal justice system. There is at least a professed, if perhaps unrealized, commitment to transparency in our prosecution of crime. (3) Statutes criminalizing conduct and detailing potential terms of punishment are (ideally) debated and decided in public by the legislature. Police often call for public assistance and tips when crimes occur. Police departments can be held publicly accountable for increased crime, officer misconduct, and failures to investigate. The courtroom doors are open to any interested individual. (4) Criminal trials are structurally hardwired to involve the community through the selection and empowerment of residents as jurors. (5) After the trial, however, even our professed commitment to transparency stops. While we, as a society, may have participated in the reporting, investigation, or prosecution of the crime, society is practically barred from evaluating the punishment itself.

Yet, it is vitally important that prison operations be transparent. Like the investigative and trial aspects of the criminal justice system, prison operations are administered for the greater democracy. This Article explores the social, economic, and constitutional reasons underlying the need for greater transparency. At its core, this Article argues that if the goal of a prison system is both punishment and rehabilitation, our prisons are failing institutions that result in the creation and maintenance of a racial and socio-economic underclass. Enhanced transparency of prison operations is essential for achieving a more just and safe democracy.

Millions of lives are at stake. As of January 2014, approximately 2.2 million people are incarcerated in prisons and jails nationwide. (6) Nationally, local jails admit approximately ten million people annually and state and federal prisons admit approximately seven hundred thousand people a year. (7) Bruce Western and Becky Petitt have documented how incarceration exacerbates existing inequality, leading to invisible, cumulative, and intergenerational disadvantages (8)--in effect, life-long subordination and the creation of a permanent underclass. Our national obsession with incarceration also affects the families and communities of inmates. One in every twenty-eight children has a parent incarcerated in a prison or jail. (9) Concentrated incarceration rates in communities disrupt social and economic networks, in effect reinforcing a community's marginalization from the American dream. (10)

Public education in the United States was once similarly in crisis and nontransparent. Brown v. Board of Education (11) announced a new principle governing public schools, namely countering the political, economic, and societal subordination of African-Americans through integrated public school education. The federal government, faced with halting and uneven progress in reducing the black-white educational achievement gap following Brown, enacted a series of measures designed to increase transparency in public education through federal collection of state educational data, culminating in the No Child Left Behind Act of 2001 (NCLB). (12) NCLB's actual impact on education is disputed. However, whether or not NCLB succeeded in improving educational outcomes is beside the point for the purposes of this Article. Rather, the clear innovation, following Brown and entrenched in federal education laws, is the federal collection of data on the performance of students and local schools. NCLB (and, to a lesser extent, its forerunners) has been successful in exposing and documenting subordination, even if the educational policies have not necessarily been successful in ending it.

We face a similar moment today in the operation of our prisons and jails. The rapid rise in incarcerated populations and the disparate impact on the poor and racial minorities in particular, as discussed in more detail below, mimic many of the concerns that motivated federal involvement in enhancing transparency of school operations.

This Article is situated within a larger discussion urging greater external and internal oversight of penal facilities. In 2005, the Commission on Safety and Abuse in America's Prisons, composed of corrections officials, former prisoners, civic officials, religious leaders, and academics, conducted a yearlong investigation on the state of America's prisons. (13) The Commission issued a final report detailing recommendations for improving prisons, including enhanced accountability measures. Since then, Michelle Deitch has provided incomparable leadership in publishing a fifty-state survey of prison oversight mechanisms (14) and inspiring other authors to examine prison accountability in international and domestic contexts. (15) This Article contributes to this ongoing conversation in three distinct ways. First, I take a different approach by arguing solely for enhanced transparency, leaving greater accountability as a separate project. Second, I present a normative argument for enhanced transparency based on anti-subordination principles. Many of the arguments for greater transparency are strategically based on policy concerns, but lack a strong normative framework for arguing why transparency is necessary. Last, I use a comparative lens to argue for a limited solution of enhanced data collection and publication by the Department of Justice. The goal of this Article, therefore, is not to supplant the existing conversation, but rather to add a unique perspective towards broader arguments for public engagement in prison operations.

In this Article, I argue that federal school transparency measures provide a rudimentary and balanced framework for enhancing prison transparency. Drawing upon literature demonstrating that prison conditions themselves create a subordinated class, this Article argues for a "No Prisoner Left Behind Act" that builds on the data collection success of NCLB. The proposal is based on the experience of schools, a comparable but not identical institution, in the wake of Brown v. Board of Education. (16) Schools and penal facilities are similar facially in terms of federal-state relations and public versus private operation of the institution. Courts have also treated both institutions similarly under the law by applying nearly identical deference standards and imposing comparable duties and obligations on administrators of both schools and penal facilities. In Part I, this Article describes the current state of incarceration in the United States and identifies the ways in which our current practices create and/or exacerbate inequality. Part II argues that in certain respects schools and prisons are comparable institutions, facing similar obligations and challenges, particularly with respect to creating and maintaining a permanent underclass. Part III examines how educational policy has addressed concerns about inequality and concludes that enhanced transparency measures were a critical element in the government's response to educationally fostered inequality. In light of the similarities of schools and prisons. Part IV discusses the value of transparency in undermining institutionally produced inequality and finds that transparency is particularly lacking in the penal context. Part V proposes passage of a federal statute authorizing incentive funding for local and state provision of prison operations data, based on a truncated version of NCLB.

1. CURRENT EFFECTS OF INCARCERATION

   The effects of incarceration, both for the inmate and for society more generally, are not limited to the judicial sentence imposed. Rather, how a person is incarcerated (i.e., the conditions in which an inmate serves his or her sentence) can radically shape that person's life, health, and economic prospects. These effects have implications for the communities to which the incarcerated person returns and to society more generally. This Part examines the current effects of incarceration and concludes that...