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Thursday, May 03, 2007

Jail upgrades

Prof. Bainbridge comments here on a recent New York Times story about "pay to stay" jail upgrades being offered in California.  Here's a bit from the story:

Anyone convicted of a crime knows a debt to society often must be paid in jail. But a slice of Californians willing to supplement that debt with cash (no personal checks, please) are finding that the time can be almost bearable.

For offenders whose crimes are usually relatively minor (carjackers should not bother) and whose bank accounts remain lofty, a dozen or so city jails across the state offer pay-to-stay upgrades. Theirs are a clean, quiet, if not exactly recherché alternative to the standard county jails, where the walls are bars, the fellow inmates are hardened and privileges are few. . . .

“It seems to be to be a little unfair,” said Mike Jackson, the training manager of the National Sheriff’s Association. “Two people come in, have the same offense, and the guy who has money gets to pay to stay and the other doesn’t. The system is supposed to be equitable.”

But cities argue that the paying inmates generate cash, often hundreds of thousands of dollars a year — enabling them to better afford their other taxpayer-financed operations — and are generally easy to deal with. . . .

What should we think about these "upgrades"?  Certainly, one could hardly blame one convicted of a "relatively minor" crime for wanting to take advantage of this option.  And, these upgrades might well provide a useful source of revenue.  I wonder, though:  Why stop at $82.00 per day?  I would think that corrections agencies could fill their "upgrade" cells while charging substantially more.  What if it turned out that many of those convicted of "relatively minor" offenses were willing to pay, say, $1000 per day -- or $10,000 per day -- not to avoid the loss of physical freedom associated with punishment, but to avoid the non-trivial risks of being harmed by other inmates?  What would this willingness tell us about the extent to which we are failing in (what I take to be) our obligation to protect those we incarcerate?

I assume we don't want to say that these risks are "part of" the punishment that is justly imposed upon those convicted of crimes.  So, if someone buys their way out of those risks, it is not -- is it? -- that they are buying their way out of duly imposed "punishment."  But, once we acknowledge that there are non-essential, unpleasant incidents of punishment that we *are* willing to allow people to pay to avoid, then how do we justify imposing those incidents on those who cannot (or simply do not) pay to avoid them?   

Posted by Rick Garnett on May 3, 2007 at 05:23 PM in Criminal Law | Permalink


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The jailor has the responsibility to ensure the safety of the inmate and to provide humane and equitable treatment with regards to nourishment, sanitation, and sleeping arrangements. This is true, regardless of the jusrisdiction of the jail or prison (by which I mean local, county, state or federal facility). The Jailor must, therefore, maintain absolute control of the prison inmate population. This responsibility ultimately falls on the taxpaying public, in the form of the higher taxes required to indulge in the universal criminalization movement led by so-called "progessives" which ends up incarcerating vast numbers of people for what may amount to little or no real offence.

Hitler was a "progressive". Stalin and Breshnev were "progressives". These examples are proved in authenticity by names like Treblinka, Dachau, and the Soviet Gulags. At Nuremburg, we tried many of the NAZI "jailors" and, after careful deliberations, hanged several of them for crimes against humanity.

In the US prison population are some of the most violent, predatory "humans" you will ever encounter. They are there for a reason or reasons that more than justify their convictions. Murderers, kidnappers, rapists, pedophiles, (please feel free to insert "convicted" in front of all of these terms) should be placed under strictly controlled quarantine for the duration of their sentences, because while they are in little concrete rooms with steel bars for walls, they can't prey on us. Even these must be kept safe though, and fed, and clothed, allowed to sleep regularly. Because the real danger in any jail is not the guards, but the most violent and predatory inmates, these must be kept away from each other and anyone else who may be passing through on a conviction over the latest "progressive" crime du jur.

What is life imprisonment, if it is not death by incarceration? It is more humane, from my perspective as a free man under this Constitution, to employ the death penaly in capital cases to end the suffering of the convicted quickly, rather than drag out the torture for 40 years. Hell of a lot cheaper, too.

Posted by: B Dubya | May 12, 2007 9:15:57 AM

What about "upgrades" gang leaders get? It is a known fact that a member of organised crime will have it much easier then a misguided soul who made a really bad mistake.

To make it fair, you need to implement solitary confinement as the only way of imprisonment.

Posted by: Terry Crane | May 12, 2007 4:55:55 AM

Frank Pasquale also posted on this over at Concurring Opinions: http://www.concurringopinions.com/archives/2007/04/selfpay_luxury.html#comments

Posted by: Patrick S. O'Donnell | May 5, 2007 1:12:32 AM

Are there other moments in the criminal process when we allow the convicted to bargain with the state about the terms of their punishment? Defendants can choose pleas over trial, but that's a calculated risk available to everyone. The ability to afford private counsel gives wealthy defendants a systematic advantage over impecunious ones, but again that's really about your chances of conviction rather than adjusting post-conviction punishment. Parole hearings are a form of bargaining over punishment, I suppose. I don't know enough about criminal law to know whether prisoners are accompanied by counsel at parole hearings but if they were this could be a way that wealth affects the severity of sentences.

Of course, even if the practice of upgrades is unique that doesn't mean it's objectionable. It could certainly be utility-enhancing if the amount the state receives is greater than the cost of the accommodations the provide the inmates in exchange. So maybe there is a non-consequentialist objection, perhaps one rooted in the notion that publicly imposed punishment shouldn't vary in its severity with respect to wealth. That's really all that's happenening here, it seems: if you can pay enough, you suffer less in jail. Social class isn't a suspect class, so this may not fit traditional equal protection analysis, but it might operate on an an ethical if not a legal argument.

This reminds me a bit of the flap last year that occurred when TSA considered giving purchasers of first-class tickets priority in airport security lines (actually, this program may may have been implemented, but since I fly coach I'd have no idea).

Posted by: Dave | May 3, 2007 9:27:36 PM

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