As a result of this article about the option that some California prisoners have of paying for better prison conditions, there has been quite a bit of comment around the blogosphere about the fairness of providing such a perk. Heck, even the judge in Paris Hilton’s revocation of probation hearing felt compelled to deny Paris the “pay for a better prison” option in sentencing her to 45 days of jail time.
However, given the abysmal condition of most jails in the U.S. and the intractable political problems that prevent those conditions from being improved, I found Rick Garnett’s comment on the issue particularly insightful:

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?