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.