“Self-Pay” Luxury Jails

The tiering of American society has reached one more venerable institution: prisons. California’s self-pay jail system is profiled in the NYT today:

For roughly $75 to $127 a day, these convicts — who are known in the self-pay parlance as “clients” — get a small cell behind a regular door, distance of some amplitude from violent offenders and, in some cases, the right to bring an iPod or computer on which to compose a novel, or perhaps a song.

I’m all for making prisons more humane; as the article notes, “The California prison system, severely overcrowded, teeming with violence and infectious diseases and so dysfunctional that much of it is under court supervision, is one that anyone with the slightest means would most likely pay to avoid.” But I have a feeling such differential treatment may ultimately do more harm than good. By allowing the wealthiest to “exit” the normal jail system, we lose an important “voice” for making it decent.

I’m not saying that these relatively minor offenders should always be thrown in with hardened recidivists. However, I think we could make the system fairer by keying the “self-pay” amount to the income/wealth of the offender. Consider this approach to fines in Finland:

The officer pulled over [a wealthy entrepreneur’s] car and issued him a speeding ticket for driving 43 miles an hour in a 25-mile-an-hour zone. The fine: $71,400. . . . The staggering sum was no mistake. In Finland, traffic fines generally are based on two factors: the severity of the offense and the driver’s income. The concept has been embedded in Finnish law for decades: When it comes to crime, the wealthy should suffer as much as the poor. Indeed, sliding-scale financial penalties are also imposed for offenses ranging from shoplifting to securities-law violations.

If the punitive dimension of a prison term is to be diminished for those opting into self-pay jails, perhaps the payment should be reconceived as a fine, capable of inflicting something like the same amount of deterrence as the risk of infection and violence that they are buying their way out of.

Frank Pasquale

Frank is Professor of Law at the University of Maryland. His research agenda focuses on challenges posed to information law by rapidly changing technology, particularly in the health care, internet, and finance industries.

Frank accepts comments via email, at pasqresearch@gmail.com. All comments emailed to pasqresearch@gmail.com may be posted here (in whole or in part), with or without attribution, either as "Dissents of the Day" or as parts of follow-up post(s). Please indicate in your comment whether or not you would like attribution, or would prefer your comment (if it is selected for posting) to be anonymous.

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20 Responses

  1. It’s such a hard dilemma. On the one hand then the Finnish system makes a lot of sense but on the other hand then shouldn’t punishments be equal? But people paying different amounts for exactly the same offence is not exactly equal. Then again, paying different percentages out of your total wealth is not exactly equal either. I wish I had a good answer to these thoughts but I don’t. I’ll stop rambling now…

  2. Dan Markel says:

    Frank, good discussion and good finds.

    You may know that Finnish practice is not so out of step with Anglo law: Blackstone himself was aware of the need to scale penalty to wealth to ensure that prohibitions are understood as categorical, not priced like turnips and BMW’s. This is one of the points I develop in my Retributive Damages project too. Church of Integrity: don’t despair. It’s not quite the rupture to the equality norm that you suspect!

  3. Dan Markel says:

    Btw, making one pay for cost of incarceration should be decoupled from being able to access superior resources whilst in prison. The former may be consistent with robust equality norms while the latter is, in most situations, not.

  4. Patrick S. O'Donnell says:

    Frank,

    This is the first I’ve heard of this Finnish practice and I admit to liking it!

    The Los Angeles Times for some years now has had article after article on the deplorable, absolutley inhumane conditions that exist in the state’s prisons (and LA County’s ‘custody and correctional facilities’ fare no better), conditions that persist in spite of court orders and federal oversight. It’s all rather depressing, as there are very few if any positive signs on the horizon. There’s not enough organized citizen outrage or sustainable political will for any meaningful change to occur.

  5. PG says:

    If the prison system is making a profit off its wealthy inmates and that profit is reinvested into improving conditions for the regular inmates, I think this is a perfectly good idea. I’d just be wary of slipping toward a situation in which only poor people go to prison while the wealthy pay massive fines and do time at home with an ankle bracelet instead. Oh, wait…

  6. AYY says:

    Somehow I think the $71,000 fine is just socialism at work. Look at what an incentive it gives to pull someone over whether or not he’s speeding.

    I don’t understand how you assess someone’s wealth. Do you have to hire an appraiser to get the fair market value of his property? What if he challenges the appraisal? What if he has everthing in an aggressive growth fund that might either double of shrink by half tomorrow. What method of depreciation do you use for his assests? That’s just what I could think up right off the bat.

    There was a time not so long ago that Donald Trump was reportedly deep in the hole. So where would he fit in in this?

  7. Patrick S. O'Donnell says:

    AYY:

    I suspect from your comment that you know little or nothing about ‘socialism.’ However, should you be interested in a disinterested sort of way, you might look at Diane Elson’s ‘Market Socialism or Socialization of the Market?’ in New Left Review, No. 172, (Nov./Dec. 1988), 3-44; Bertell Ollman, ed., Market Socialism: The Debate Among Socialists (New York: Routledge, 1998); and Michael Luntley’s The Meaning of Socialism (La Salle, IL: Open Court, 1990).

  8. FXKLM says:

    It’s probably true that a $10,000 fine is a smaller punishment for a rich person than for a poor person, but I think the opposite is true of prison sentences. The disparity between the quality of life in prison and the quality of life outside of prison is much greater for a rich person than for a poor person. If we should have larger fines for the rich, the same reasoning would suggest that we should have longer (or at least more unpleasant) prison sentences for the poor.

  9. Frank says:

    Dan: Thanks for pointing me to the retributive damages project; I’ll be sure to read that.

    Patrick: Yes, and to reinforce your point about the CA conditions, I think Alice Ristroph and Michael Pinard are among the legal scholars who point out a) how terrible prison conditions are and b) how collateral consequences stop many prisoners from resuming a normal life.

    Swan: I’ll read the post.

    FXKLM: Would you agree with the following assessemtn of the Katrina situation (namely:

    “Commenting on the facilities that have been set up for the evacuees — cots crammed side-by-side in a huge stadium where the lights never go out and the sound of sobbing children never completely ceases — former First Lady Barbara Bush concluded that the poor people of New Orleans had lucked out: ‘Everyone is so overwhelmed by the hospitality. And so many of the people in the arena here, you know, were underprivileged anyway, so this, this is working very well for them.'”

    from

    http://www.thenation.com/blogs/thebeat?pid=20080

  10. Patrick S. O'Donnell says:

    FXKLM: You can’t be serious (Perhaps FXKLM is your real name; it sounds inhuman enough to me). One point about the disparity in fines is that for the wealthy person to be fined the same as the not-wealthy often means that for the former the fine does not have the desired deterrent effect. For instance, at my college, comparatively wealthy students receive parking tickets and blow them off, they don’t care and the illegal behavior persists. The situation with imprisonment is a bit different, to put it mildly–apart from the arguable assumption that the rich have earned and deserve all of their wealth while the poor are wholly responsible for the situation in which they find themselves in–having to do with the loss of one’s freedom, something the poor and rich value alike. To achieve the desired deterrent effect one need hardly resort to previous quality of life indices to determine the appropriate punishment. It would be the rare inmate who finds life on the ‘inside’ better than life on the ‘outside’; and with the exceptions come life stories of unspeakable poverty, neglect, abuse, and the like: conditions we should be aiming to overcome, not use as some sort of comparative baseline from which to decide the severity of punishment.

  11. puzzled says:

    So the big shot gangsta who’s running a hundred hos and crack playas, or the tattooed biker meth czar, both of whom can discard suitcases full of hundred dollar bills without noticing the loss, get first class treatment. The struggling accountant with two kids who makes $60K goes in with the rest of the rapees. It’s just so California.

  12. Mike G says:

    “By allowing the wealthiest to “exit” the normal jail system, we lose an important “voice” for making it decent.”

    Hey, it worked so well for public schools in big cities!

    I like how Katrina was dragged into this too. You can never have enough Katrina. It’s relevant to everything.

  13. AYY says:

    “I suspect from your comment that you know little or nothing about ‘socialism.'”

    Well, I do seem to remember something about “from each according to his ability. . .”

  14. The Snob says:

    Puzzled: The biker meth czar and the alpha gangsta already have ways of securing a better standard of living inside prison, not infrequently relying upon the very skills that got them in the big house in the first place.

  15. Scott Dodson says:

    This reminds me of some time I spent in a Bolivian prison (voluntarily — it was a tour, I swear) called San Pedro. This prison was a nearly perfect economic microcosm. Every inmate starts out the same — no money. No money gets you no cell (or, as you will see later, no “room”) and basic prison food. Money can be earned inside, however, mostly at inmate-run businesses. In fact, there are private shops, restaurants, a gym, cleaning services, security services, etc. Money comes into the prison from the outside via people like me (I paid my inmate tour guide $40 for the tour) who eat at the restaurants or buy goods. Outsiders also sell goods to inmates with money. An inmate who is able to work at an inmate-run business inside can earn money to pay for a better meal at an inmate-run restaurant, a gym membership. He can even pay (the state, this time) for a cell with locks on the INSIDE. Some rooms are nicer (far nicer) than others, and, concomitantly more expensive. One that I saw had a single bed, a TV, cable, and a Nintendo.

    I do not doubt that much of the money and goods are obtained as contraband. But from what I saw, inmates actually put a substantial amount of time into gainful employment within the prison.

    Another interesting piece of (rumored) information is that the prison guards almost never set foot inside the prison. They let the inmates buy their own security, order their own lives, and set their own rules of conduct in something of a mini-society. The guards step in only in a life-or-death situation. (By the way, there is a state-run infirmary, but apparently it is not as good as the inmate-owned one!)

    My own few hours worth of observations are poor indicators of reality within the prison. But, for more, see this link: http://www.abc.net.au/foreign/stories/s963744.htm. At the very least, it does present a very interesting take on what prison systems should be all about.

  16. CatCube says:

    I note that the military uses a system something like Finland’s. You’re not punished according to a set rate, but are fined a percentage of your base pay, based on the senority of the officer or court-martial inflicting punishment. For example, a company grade officer using non-judicial punishment can take 7 days pay, while a field grade officer can take up to 1/2 a month’s pay for two months.

    A special Court Martial can take up to 2/3 pay per month for one year.

    In addition to taking pay, a commander or court martial can reduce a servicemember in rank, which amounts to a pay cut (as well as a loss of respect and responsibility)

  17. Tom says:

    “(By the way, there is a state-run infirmary, but apparently it is not as good as the inmate-owned one!)”

    As one would expect. Vote ‘NO’ for HillaryCare.

  18. Barry says:

    “The disparity between the quality of life in prison and the quality of life outside of prison is much greater for a rich person than for a poor person. If we should have larger fines for the rich, the same reasoning would suggest that we should have longer (or at least more unpleasant) prison sentences for the poor.”

    Posted by: FXKLM at April 30, 2007 08:12 AM

    Aside from what Patrick has said, there are some other consequences for those who are poor or working class. A 90-day jail sentence would probably mean loss of one’s job, and eviction of one’s family. The expenses incurred during that time, with no income, could take years to pay off, given a family which isn’t doing all that great in the first place.

  19. Sean Riley says:

    The prison system is run no different then a vast drug industry..These guys are making money off of everything now. Instead of just the ole commissary hustle, they are charging inmates for a more stable living arrangement, providing them with substantial protection. Taking it back to the “God Father” days. I had to sit in a old corrupt county jail, where no morals or rules of society where at force. It was survival and nothing less. I was facing 15 to life, and there was no way of getting out of it. 18 years old, future destroyed over a day of reckless behavior. When i finally got a bond set after many months and was let free to await trial, my lawyer came to me with a option of something called drug court. Sounded sketchy but id rather be free and pay money to remain free. So i took a plea to fifteen years suspended to completion of drug-court. It is a great program. Instead of the state throwing away 15,000 for trial, then 30,000 plus a year to keep me incarcerated, they can make money off of me and help me to be a more useful part of society. About this luxury prison ordeal, i think it has its potential,. as long as the money goes to positive organizations like drug rehabs, half way houses etc..Not to put the money into fancy offices for the people at the top of the financial food chain,. who could care less whether someone gets raped, killed, diseased, gang affiliated by force or all the other terrible things that happen in our prison systems. Many young people would not go into prison for a simple mistake then come out a hardened criminal because they had to get gang protection if they were able to do some sort of controlled incarceration. Not jus the now aday lock down and throw away the key, hope you survive ” ill pray for you technique” that goes on today. There should be no discrimination from poor to rich. If they don’t have money, to pay for the better quality housing, you work for it..”community service, speaking, etc..” I could talk on this for ever.