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27 N.Y.U. J. Legis. & Pub. Pol'y 1 (2024-2025)

handle is hein.journals/nyulpp27 and id is 1 raw text is: INVISIBLE AGENCIES: TRANSPARENCY, OVERSIGHT, AND ACCOUNTABILITY IN THE CARCERAL STATE Erin E. Braatz* Legal scholarship on the carceral state tends tofocus on managing inputs into that system-criminalization, policing, and prosecution-with attention to the practice of incarceration limited to the constitutional protections afforded (or denied) prisoners. It thus largely fails to address the actual structure of the carceral state and the experience of those incarcerated. At the same time, prison departments take deliberate steps to ensure that their activities are not visible either to the voting public or the legislative branch, creating distinct challenges for scholars seeking to fill this gap. This Article addresses one necessary precondition for any meaningful agency oversight-transparency-and examines what it currently means and what it could mean in the carceral context. In the framework of the administrative state generally, transparency is lauded as a valuable form of accountability and legitimacy. Through a detailed analysis of one prison department, this Article reveals the uniqueness of prison departments as administrative agencies and argues that in this context transparency mechanisms that have been developed for the administrative state writ large are inadequate given the extreme marginalization of the carceral population. While increasing the transparency of carceral spaces is a valuable goal, on its own it will not guarantee meaningful accountability or oversight. Rather; scholars of the carceral state should give greater attention to agency governance so that the practices of prison departments are visible to those capable of holding them accountable and that there are actual mechanisms for ensuring accountability. Focusing on techniques of oversight and accountability offers the best approach for improving prisoners' access to basic constitutional protections and providing some measure of human dignity. INTRODUCTION ...................................... .. 2 I. TRANSPARENCY THEORY .......................... 8 A. Origins of Transparency Theory ................ 11 B. Transparency's Many Goals ................... 14 1. Public Participation ...................... 16 * Associate Professor of Law, Suffolk University Law School. Thank you to the members of the Suffolk University Women and Incarceration Project, including Amy Agigian, Rachael Cobb, Rachel Roth, Susan Sared, Rebecca Stone, and Norma Wassal; the attendees of CrimFest, including Erin Collins, Carissa Byrne Hessick, Christina Koningisor, and Madalyn Wasilczuk; and the always thoughtful feedback provided by Micky Lee, Monika Raesch, and Frank Rudy Cooper. For this and all things, thank you to John Infranca. 1 Imaged with Permission of N.Y.U. Journal of Legislation and Public Policy

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