Pay-to-stay jails expose the moral tension between the dominant theories of punishment: retributivism and deterrence. A turn to a third major moral theory—virtue ethics—resolves this tension. According to virtue ethics, the moral worth of an action follows from both the character of the action and the disposition of the actor. Virtuous acts promote human flourishing— the central goal of life—when they are the right actions performed for the right reasons. The virtue ethics theory of punishment suggests that pay-to-stay jails conflict with the promotion of human flourishing. A virtuous state’s criminal justice system would not include fee-based incarceration because it undermines the role of punishment in fostering practical judgment, an essential prerequisite to encouraging human flourishing. Neither the retributivist desire to punish offenders equally in identical (and shoddy) prison conditions nor the deterrence effect of requiring inmates to cover the costs of their confinement is motivated by virtuous reasons. Furthermore, the resolution of the pay-to-stay jails dilemma using virtue ethics highlights why retributivism and deterrence should be rejected as theories of punishment in favor of a virtue ethics-based approach.
Bradley W. Moore,
A Virtuous State Would Not Assign Correctional Housing Based on Ability To Pay,
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol106/iss1/15