Prison Law, carceral administration, Habeas Corpus, illegal detention, procedural fairness, substantive legality
Sites of incarceration present stress tests to our theories and practices of administrative law. They yield insights, too, into how law distributes power across the administrative state. While studying administrative law as prison law reveals certain distinctions between the law that rules in prisons and everyday administrative state operations, it also reveals continuities—for instance, between the surveillance and control characterizing prisons and the routine surveillance and control that police, child welfare, social assistance, mental health, and public health authorities concentrate upon Indigenous, Black, disabled, and poor people in ways that produce and reproduce subordination and disproportionate incarceration. We begin to see that deprivation of liberty behind prison walls is continuous with patterns of social control and material deprivation distributed across populations in systematically unequal ways. The question is, what if any resources does administrative law have to respond?
This chapter offers a glimpse of how lawyers may use their skills in contexts of carceral administration. Building on Cristie Ford’s introduction to administrative and judicial review remedies, its focus is the “great writ” of habeas corpus: “the strongest tool a prisoner has to ensure that the deprivation of his or her liberty is not unlawful.” Habeas corpus is designed to provide swift access to judicial oversight of the legality of detention and to deliver an effective remedy: release from the illegal detention. For prisoners, access to justice (albeit narrowly conceived) often means access to habeas corpus. Yet one need not be embroiled in battling the carceral state to get something out of habeas corpus. For the student simply seeking review of basic principles of administrative law, habeas corpus provides an opportunity for reinforcement of essential features of doctrine, including procedural fairness and substantive legality.
Sheila Wildeman, "Habeus Corpus Unbound" in Colleen M Flood & Paul Daly, eds, Administrative Law in Context, 4th ed (Emond Publishing) [forthcoming November 2021].