Monday, April 30, 2007

An Intersection of Social and Distributive Justice?

In a recent article in the New York Times entitled "For $82 a Day, Booking a Cell in a 5-Star Jail," I learned that some offenders in California can apply to and, with the permission of a judge, pay between $75 and $127 per day to serve jail sentences at cleaner, quieter facilities with more inmate privileges. Offenses must be minor, as the article's author notes, "Carjackers need not apply." The standard profile for an offender is a male in his late 30's who has been convicted of DUI and sentenced to a month or two.

There are several reasons why one might think this was a good idea. For minor offenders, entry into the California jail system is entry into an overcrowded world of gangs, racial violence, and hardened offenders. The article mentions that many areas with the system are under judicial review. One can see the benefit to the county of not hardening minor offenders, and certainly the idea of offsetting prison expenses where possible seems like a good idea.

Nonetheless, critics argue, this seems to compromise the "blindness" of justice since not all offenders can afford this "5-Star" treatment. Imagine two minor offenders, each with no prior record, and each convicted of a 90 day DUI offense. That each might serve that sentence at a better or worse facility according to one's ability to pay seems to some a violation of equality under law.

My own sense is that this is probably okay for two reasons. First and most importantly, if sections of the existing jail system are broken and others are not, then I see no reason to propose a duty to stay in the worse relative to the better. Justice makes no demand that we submit to an unjust punishment when a just one is available, and I would argue that the additional hardships incurred dysfunctional prisons constitute an additional punishment that distorts the justice of the original sentence. If the injustice of that additional punishment were inescapable and universal, then one might factor it into one's sentencing and adjust sentences accordingly. However, that the hardships and privileges varies within the same system means that there can be no requirement from justice to serve one's sentence in a dysfunctional facility when a properly functioning facility is available.

This is not to endorse the increased privileges at these facililites. The upper limit of such privileges should be no higher than that in a normal and/or dysfunctional prison if we intend that the justice in punishment is blind. Pay-to-stay prisoners should not be allowed out of the prison to work, and laptops and iPods should not be available to them either as long as these privileges are not afforded to conventional prisoners. Indeed, there might be good reasons to afford additional entertainment privileges to conventional prisoners if one thought it might pacify violent impulses and possibly afford short-term relief for some of the dysfunctions related to prison violence. That speculation aside, if the pay-to-stay prisons more closely approximated what we thought an ideal prison should look like, with privileges perhaps constrained to selected books and materials with which to write, then it would be even clearer that justice does not require that we submit to an unjust punishment when a just one is available.

Lacking such duty, one could say there was no reason to settle the questions of limited space by ability to pay rather than, say, by random assignment within the same profile of minor first-time offenses. However, this raises other questions, which brings us to my second reason. If normal inmates do not have to pay to stay in jail, then these inmates should not either if we're really talking about justice being blind. That they do, and that they must apply to do so, means that the inmates release consent to be treated unequally in the matter of their property (conceived of as a political right) in exchange for a right to serve their sentence in a properly functioning penal setting. In other words, I argue that contrary to the appearance of a merely economic transaction, this is a modification of the social contract that lasts for the specified duration of the inmate's sentence. The additional funding to the penal system that allows for the hiring of more guards or improvements to the facilites is a public good, and forcing an inmate to incur this greater burden without their consent would be just as partial an application of justice as the original worry suggests.


  1. This stumped me for a while and I think it's because I can't predict what sort of consequences this policy might yield.

    Certainly the prison system is a veritable training ground for law-breakers. You go in for selling drugs and come out with expert knowledge in all sorts of other criminal areas. For this reason, it seems right to be separating people somewhat by the nature of their crime. Drunk drivers don't need to be spending time with embezzlers or rapists.

    The money going into the system also seems good. However, there might be a concern that when the richer people do not have to endure the conditions of normal prison, there won't be as many advocates for prison reform.

    That's all I got.

  2. I'm bothered by one part of the way you describe the situation:

    "...I see no reason to propose a duty to stay in the worse relative to the better. Justice makes no demand that we submit to an unjust punishment when a just one is available, and I would argue that the additional hardships incurred dysfunctional prisons constitute an additional punishment that distorts the justice of the original sentence."

    If we're stipulting in advance that the additional hardships "distort the justice of the original sentence" then clearly that distortion impacts the justice of the sentence of the poor DUI-er as well as the wealthy. Given such a stipulation, on-its-face (and I think, beyond-its-face too) what we're suggesting, then, is that you have to pay extra money to ACTUALLY get justice...

    If this indeed the case, then the problem is less that we've got pay-for-preference (which still seems problematic... there's something wrong with your second argument I think, and I'm trying to work it out in my head...), but rather that we've got pay-for-justice in the first place. If this is right, however, then I don't think we necessarily need to ask whether pay-for-preference is acceptable at all, because we've got a much different problem on our hands.

    On the other hand, if we want to say that the original sentence IS just, then we're no longer in the position of wondering whether there is a duty to submit to an unjust (and avoidable) punishment. If the punishment is just, then you should have to submit to it no matter your wealth-level. If the punishment is unjust, then a pay-for-better-conditions really amounts to a pay-for-justice situation, which seems obviously probblematic.

  3. Arthur, I'm interested in your analysis because although I offered some positive consequences, my reason for doing so was to allay the immediate "camp cupcake for the rich, hard time for the poor" worries. (That's why I also said that prisoners shouldn't have more privileges in the special facility than in the regular one.) My sense was that if one thought the pay facility amounted to a situation where we were purchasing differential treatment, then that would offend those with more deontic sensabilities than yours. I too cannot foresee much, but I take it as interesting that Paris Hilton turned down this option because she did not want to be perceived as failing to serve her term as she ought. (This was before being released after serving three days and then breaking down in the courtroom when a judge told her she'd have to go back.) On a consequentialist reading, serving a sentence in a pay to stay facility might not be objectionable, but if people's confidence in the justice system was eroded such that it led to more crime (or even more minor crime because you thought you could get into a pay to stay place), I could see this becoming objectionable.

    Corwin, you're exactly right that I'm suggesting that there's a different problem than preferential treatment on the table, but it sounds like you're concerned that pay-for-justice is morally problematic because we should have an actually just penal system. Of course I would agree, but my original thought was that critics of the pay facility would cry foul because one is paying for treatment that others cannot afford, and so we think this violates equality under law. However, what I suggest is that such facilities actually achieve the justice mandated by the original sentence, and so the critics would in effect be imposing additional hardships on the individual for no better reason than that the state mismanages its prisons. In other words, it's a kind of "'leveling down' shouldn't apply to injustice" response, where by injustice we refer to the systemic problems of a mismanaged prison. This of course leaves open that the state could reform the prisons, or that a particular prison could be properly run, but if there are no additional privileges at the pay facility, then I don't see a problem with avoiding the state's mismanagement from the perspective of the justice in sentencing. I'm sure Rawls would of course have disagreed with me on grounds of mere difference, but I think this is an interesting challenge to his thought for that reason.

    One last thing to add, a disclaimer. It is the article's statement that many California prisons are mismanaged, not mine. It is also stated in the article that pay facilities offer privileges unavailable in conventional facilities. So as described, I think the situation is not ideal, but I think the interesting problem raised by the article is with respect to our interests in equality under law and justice in punishment.

  4. Oh, also, my earlier argument from a "renegotiation" of the social contract was rather speculative and undeveloped. I suggest it as a way of avoiding obvious problems with justice-as-commodity worries.

  5. Here in Missouri, we have to pay no matter what the offense is for county jail time.
    It seems rather silly since we pay greatly for jails with our tax dollars in the 1st place.
    If they ever put me away, I will not pay them a red cent and they can put me back in jail (to owe even more), that is if I have not fled to a different state or country.
    This is just another way they are taking away our rights faster than we can count them.

  6. Am stands with one of the member's word that prison are like a training classes for selling drugs and to became except in doing all criminal activities.


    Dui In California