image by: RODNAE Productions
A guy walks in to behind bars. It's a nicer jail than it would have been otherwise because he can afford it. It's no joke: "pay-to-stay" is unequal justice by design.
It's carved in stone of atop the United States Supreme Court building: EQUAL JUSTICE UNDER LAW. But whether we're talking about police enforcement, the district attorney's willingness to file charges, a defendant's the ability to hire high-quality attorneys, or sentencing meted out by judges, it's no secret that the wealthier you are, the more leniency you're likely to enjoy in the world of criminal justice.
Another way in which money muddies jurisprudence is the for-profit prison system, which incentivizes incarceration. Debate about that dubious practice returned to the fore in February, when the Trump administration signaled it would countermand an Obama administration directive of six months earlier to phase out such prisons on the federal level.
But there's a relatively little-known realm of for-profit incarceration that is an exceptionally blatant example of how money can purchase special treatment within the penal system: "pay-to-stay" jails.
In early March the Los Angeles Times, in partnership with the Marshall Project, published an exceptional exposé on the system as it functions in Southern California. As reported by the authors, there is a long list of convictions—including felonies such as vehicular manslaughter, assault with a deadly weapon, robbery, domestic violence, sexual battery, possession of child pornography, and sexual abuse of children—for which a judge can allow the offender to serve his or her sentence in a small, cushy city jail rather than the rougher and more dangerous county jail.
The amenities available at many such jails —including flat-screen TVs, a computer room, new beds, and even work furlough so convicts won't have their employment disrupted by their sentence—take a lot of the penalty out of the penal system. The degree to which the supposed punishment can be anything but is well exemplified by the most well known and presumably wealthiest convict featured in the Times article: choreographer Shane Sparks, whose credits include the TV show So You Think You Can Dance? Sparks was sentenced to 135 days in jail for having sexual intercourse with a minor less than 16 years of age. Although a judge stipulated his sentence was to be completed within a year, the Times reports that "he took two years to finish as he continued working and traveling internationally. 'It was actually a retreat for me,' Sparks said of his time in jail. He wore his own clothes and brought his own bedding and food, he said. He said he spent most of the time editing musical recordings on his computer."
A question not directly addressed by the authors of the Times piece is whether a pay-to-stay jail system violates the Fourteenth Amendment, which prohibits states from "deny[ing] to any person within its jurisdiction the equal protection of the laws." Isn't subjecting individuals in the custody of the state to harsher punishment (in the form of harsher jail conditions) based solely on economic status a means of providing them with less protection from the penal system itself?
When consulted for this article, Peter Eliasberg, chief counsel for the ACLU of Southern California, stated his belief that this is indeed the case. "I certainly think there is a real equality concern here when the difference between your jail conditions depend on whether you can pay more or not," he says. "[…] When you hear people defend the program, the arguments they make aren't really defenses of the program. They [justify the program] by saying, 'Well, it's dangerous in jail, so it's good if they can afford to serve their sentence in less dangerous surroundings.' But if conditions in jail are dangerous enough that serving their sentences in less dangerous conditions is just, then fix the jail, don't allow separate penal systems based on economic privilege. Or, alternatively, put the most vulnerable people in the less dangerous facility, not the ones who can pay for it. […] Why are we treating people in jail differently based on how much cash you have?"
Despite the system's being in place for over a decade, Eliasberg says he is not aware of any precedent or case law pertaining to the Fourteenth Amendment angle, and that to his knowledge the ACLU has not been approached with a pertinent case.
A Supreme Court ruling that at least borders on pertinent is Bearden v. Georgia, in which the Court held that it is unconstitutional to imprison a person on probation for his inability to pay a fine or make financial restitution. As Justice Sandra Day O'Connor wrote on behalf of a unanimous Court, depriving such an individual of freedom based on true inability to pay "would be contrary to the fundamental fairness required by the Fourteenth Amendment." Perhaps a pertinent question for "pay-to-stay" is: If an individual may not be legally imprisoned for inability to pay, why can he be subjected to worse imprisonment than he might otherwise be made to endure based on that same inability?
Whatever the answer, Eliasberg notes that, while a legal case is one potential way of eradicating the inequity of "pay-to-stay," another is through the legislature. But considering that the system has been in place in California since the early 1990s and is a revenue-generator for the state, that seems an unlikely path to change. But spreading the word through exposés like the Times/Marshall Project's is a necessary step in making this form of redress possible.
"[… A] lot of what we cover at the Marshall Project is looking at the ways that money influences people's outcomes in the criminal-justice system; and some of those ways are no secret," says Alysia Santo, one of the exposé's authors. "You know, you can buy a better attorney. You know, you can pay your bail. So there are many ways that money comes into play. I think, though, pay-to-say…What seems outrageous to a lot of people is that it's so explicit that you really can purchase a more comfortable experience for a nightly fee. It's very similar to many things in criminal justice; it's just more in-your-face about it."
About the Author:
Except for a four-month sojourn in Comoros (a small island nation near the northwest of Madagascar), Greggory Moore has lived his entire life in Southern California. Currently he resides in Long Beach, CA, where he engages in a variety of activities, including playing in the band MOVE, performing as a member of RIOTstage, and, of course, writing.
His work has appeared in the Los Angeles Times, OC Weekly, Daily Kos, the Long Beach Post, Random Lengths News, The District Weekly, GreaterLongBeach.com, and a variety of academic and literary journals. HIs first novel, The Use of Regret, was published in 2011, and he is currently at work on his follow-up. For more information: greggorymoore.com
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