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.

Is Free Speech a Claim Right?

Jon Miles and I have had a running conversation about free speech rights, and recently our attention turned to the Dixie Chicks. In 2003, they criticized the president during a concert in Britain, and immediately felt a backlash from country music fans and radio stations who refused to play their music. Lipton pulled their sponsorship from the Chicks' 2003 world tour, and Wal-Mart pulled their music from its shelves. In response, they produced another album featuring the single "Not Ready to Make Nice," and effectively recreated their fanbase after being embraced by the Hollywood Left. Their new patrons in Hollywood apparently felt so moved by the whole thing that they recently lionized the Chicks in a documentary called "Shut Up and Sing" that Jon and I watched at the suggestion of Steve Wall.

Where all this interests me is with respect to the response offered by the Chicks. Their belief, so the documentary illustrates, is that Wal-Mart and the radio stations who refused to play their music were censuring their right to free speech. This was curious to me. Does someone else's free speech right require my participation in their speaking? I presented Jon with the following thought experiment inspired by a discussion with Corwin Carr.

Let's say that I'm a music distributor of some sort, that I'm very liberal, and that I'm very good at what I do. In fact, I have a large majority share of the market, and in some places there are no other outlets for some artists if I do not bring their music to the market. Recently, a popular female music group from Maryland called, say, the Yankee Babes, offered critical comments on Nancy Pelosi's recent visit to Syria. "We're with you good people," they say to an audience in Austin, "and we're ashamed that the Speaker of the House is from Maryland." (Yes, Speaker Pelosi has lived in and represents California, but she was born in Maryland, and I couldn't pass up the Yankee Babes thing.) Their comments are met with wild applause from that crowd, but I am offended, and do not feel at liberty by my conscience to continue distributing their music. Even if doing so would be lucrative for me, it would also make me complicit in publishing speech that I do not endorse, even if I do endorse the right itself. Let us further remove any financial contingencies, and suppose that I satisfied the opportunity costs incurred for the products produced and sitting in my warehouses. The Yankee Babes are financially no worse off than if they'd spent the time to produce an album that no one bought.

Have I censured free speech? It seems strange to say so since the right in question exists in parallel with, and is perhaps even thought to be an expression of, the liberty to order one's life and live according to the dictates of one's conscience. Speech rights are normally understood as negative rights that entail that I not interfere with the speaker's speaking, but if my participation is required for speech to reach an audience, does the right to free speech become a claim right such that others are entitled to it? This seems to confuse the right to speak with the right to be heard, the latter being what my participation as a distributor furnishes. The right to speak as a political right seems to entail claim rights only for the public spaces and forums that belong to everyone. Arguing that free speech rights entitle one to the activity or property of another seems therefore to argue against the principle those rights exist to protect.

Nevertheless, the Dixie Chicks seem to think that this is what happened to them. Unless and until I (or one who roughly agrees with me) gain the participation of others willing to distribute these arguments to at least as wide an audience, I'm concerned that this wider notion of the right to free speech will create many of the same problems it was originally intended to solve.

perfectionism and team sports

I've wondered for a while why on earth perfectionists (or at least the one's i've come across so far) downplay the importance of the physical so much. The last few weeks of soccer league though have got me wonderering whether team sports (like soccer) might actually turn out to be MORE important perfectionist wise than studying philosophy and the like.

When you think about it studying philosophy allows you to excercise and hone (sic?) various rational powers but team sports also do this (you have to think tactically, cooperate with others, understand and work within set rules, be creative) AND provide you with opportunities for physical perfection (which philosophy doesn't).

So on a perfectionist account it would be better to spend our lives playing soccer rather than studying philosophy. Unfortunately I have yet to find someone who will pay me to play soccer.

thoughts?