The American Bar Association (ABA), based in Washington, D.C., passed a resolution in February 2014 urging state governments to require public comment before corrections departments institute rules and regulations affecting prisoners and their families.

Such "notice-and-comment" requirements, the ABA argues, "will increase government transparency and accountability and provide an important mechanism for input on issues that can affect community safety, public health, and local economies."

The U.S. Bureau of Prisons, as well as prisons and jails in New York, Illinois, Michigan, Wisconsin and Massachusetts are subject, under federal and state Administrative Procedure Acts (APAs), to notice-and-comment "rule- making, " according to the ABA. But more than 30 state APAs expressly or implicitly exempt correctional facilities from requiring public input before making new rules.

"The absence of opportunity for public input and oversight in so many U.S. jurisdictions is troubling," the ABA resolution said. "In a nation with more than two million incarcerated people, corrections regulations affect the lives not only of [prisoners], but also of families and communities."

The ABA cited regulations governing, for instance, prenatal and OB/GYN care for prisoners and "the shackling of women laboring to give birth," as well as epidemics, "the emergence of drug-resistant forms of disease" and mental health issues as having "possible implications for public health."

It also referred to prison policies that affect "family integrity," such as those affirmed by courts that determine whether a prisoner can visit with a child if his or her parental rights have been terminated. "In some jurisdictions," the ABA said, "corrections regulations even define who is deemed to be a member of a prisoner's 'family.'"

The ABA added that notice-and-comment procedures for prisons are especially important since the Prison Litigation Reform Act (PLRA) "has greatly restricted prisoners' ability to bring civil rights litigation" against correctional facilities.

Public comment was instrumental in the passage of the Prison Rape Elimination Act (PREA) of 2003 and the Federal Communications Commission's recent decision "to cap interstate phone rates, following a decade of comments submitted regarding exorbitant prison phone charges," the ABA said.

Source: American Bar Association Criminal Justice Section, Death Penalty Representation Project, Section of State and Local Government Law, Report to the House of Delegates, Resolution 103B, February 2014, www.americanbar.org

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