Nat Dempkowski

The Prison Sentencing Scale

Zone A – 0-6 Months

The final explicit act of a trial in the United Sates criminal justice system is the delivery of a sentence by a judge. Within Zone A, there is little worry by either party. A relatively small chunk of a lifetime is being sacrificed. This is where many hope to fall when they are found guilty of a crime. Reserved for those at the lowest offense levels with almost no criminal history, it allows for probation. A crime at this level is usually forgiven. Emphasis is diverted from the guilt of the individual towards forgiveness and reform. This is a modern take on imprisonment.

At worst half a year is taken away from the one incarcerated. In this time the seasons change twice. A semester of school is completed. An internship is undertaken. For a young person, this seems like an eternity. It is a significant percentage of their life, full of novel experiences, new people, and great intellectual development. For someone older, it is not as long. Another two quarters of the corporate year. In six months, a major renovation on a house is undergone. At this level, someone gone is remembered and thought of daily. They are actively missed. Those close to them feel the shame of having freedom taken away, but the sentence is a manageable amount time. There is a place for repentance and change. There is hope. 

In medieval Padua, Italy insolvent debtors were sentenced to life imprisonment. This was too severe, so the Stone of Vituperation was created by Saint Anthony. Debtors were made to sit on it three times in their underwear and renounce aloud their worldly goods. They were then banished from the city, and if they returned they were publically shamed on the stone again, with buckets of cold water emptied over their heads. Today we shame those we suspect of being criminals, regardless of guilt. There are websites which compile mug shots for the public to gawk and poke fun at. It is difficult or impossible to get these pictures removed. They forever brand the person, guilty or not. As a society we offer reform, but lack forgiveness.

Zone B – 4-14 Months

Punishment is an act of authority which imposes a burden or deprives a benefit. By extending that idea over society we can see that “a system of punishment under law is fundamentally a technique of social control.” (Gibbs) More than 1 in 100 adults in the United States are currently in prison or jail; the highest documented incarceration rate in the world. We have five percent of the people and twenty-five percent of the prisoners. The criminal justice system was defined to “enforce the standards of conduct necessary to protect individuals and the community”, (Ruth) but if we decide that a large portion of our population isn’t doing that, then what are we protecting?

The idea of punishment and incarceration grows natural from harm. Someone has done something to harm others, so they should give up a part of their life as a punishment. This is a fair idea, but breaks down in the existing justice system. In 2011, nearly half of inmates in federal prison were serving time for drug offenses and slightly over a third were incarcerated for public-order crimes: acts which are outlawed because they conflict with social policy, accepted moral rules, and public opinion. The majority of these crimes are related to drugs, prostitution, and gambling, which initially sound bad, but have found an acceptable place in society outside of the United States. Portugal has decriminalized drugs for personal use and expanded harm reduction and treatment efforts. This has been a success, reducing rates of illegal drug use among teens along with rates of new HIV infections. (Szalavitz) The Netherlands have tolerated and regulated these “vices” that are seen as crimes in the U.S. Prostitution is legalized and regulated, as are some drugs that we have outlawed. As a society, how can we justify criminalizing acts which have little-to-no impact on ourselves? Can we observe tangible harm? How can we justify taking freedom from another member when they have not harmed another?

A common area where this problem is encountered is online. Tactics of intimidation and abuse of the law are common against those for freedom on the internet under the guise of copyright infringement or wire fraud. Kim Dotcom, founder of Megaupload, had his property seized and file hosting service shut down, due to allegations of copyright infringement. In this case, the greatest arguable harm was monetary towards companies that are already prominent members of a multi-billion dollar industry, yet extradition legislation and due process were violated.

One of the first large penitentiaries was Auburn in New York. There the congregate system was eventually devised, in which inmates slept in separate cells, but worked in common shops during the day. At this point extreme control was instituted over inmates and attempts to maximize profit from the shops were made. The first warden of the Auburn penitentiary in New York, Elam Lynds, sought to break a prisoner’s spirit and turn them into “a silent and insulated working machine.” An approach of reform was taken by the other major penitentiary in Pennsylvania. Ultimately the New York approach was adopted by the other states due to its economic advantages. It seems wrong that our early ideas of incarceration were based on dehumanizing. If we were so wrong about those, is it not just as likely that our societal views and their roots are incorrect? 

Zone C – 10-18 Months

The subjectivity of the sentencing scale gets worse as we progress further into it. Zones B and C overlap, and the dividing line is fuzzy. A single additional offense in the past may land someone in one or the other. With longer and longer sentences it seems that the facts of a trial begin to lose their place as guidance for punishment. Increasingly we see that a person’s stature becomes what is important. The foundations of our country give every citizen the right to a fair trial. We deem this as an essential right in all countries respecting the rule of law. It is defined in the Universal Declaration of Human Rights. Yet an objective observer would say that this rule is consistently violated, not just in the United States, but across the world. Even though there are laws and guidelines that apply fairly, the way they are enforced is determined by who is enforcing them. Those that we idolize see leniency. Those that we detest see bars. We justify this by “making an example” out of someone as a deterrent, but that seems neither fair nor just. The power dynamic of the situation becomes the most important factor. 

In 2008 arguably the worst financial crisis since the Great Depression of the 1930s hit the United States. We saw the large financial institutions considered stable pillars of society on the brink of failure, the bailout of these banks by national governments around the world, and widespread global economic downturns resulting in people across the country losing jobs, businesses, and homes. Banks irresponsibly invested and managed risk, and regulating agencies did nothing. There was no real punishment for this. The banks were in a position of power so great that governments saved them. 

The laws we put into place, and the punishments we create for breaking them create a social power structure. Sentencing as a whole is not based on the pursuit of truth, fact and justice, but on power. Many people seek to control others as a significant portion of their motivation and life’s goal. (Grandalf) A common tactic in sentencing is the plea bargain. This generally consists of a prosecutor pursuing an initially absurd sentence with the intention of bargaining for a reduced one, but making sure charges stick. Power is overexerted and subsequently withdrawn to the detriment of the defendant. This technique was used against internet activist Aaron Swartz and led to his suicide earlier this year in a case that only federal prosecutors, not parties wronged, wished to pursue. No actual harm was committed, and everyone involved knew that. “The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm.” (Wu) 

If you are a felon (convicted of a federal crime punished by over a year in prison) it is common to lose the right to vote, the ability to apply for federal public housing, the right to carry a firearm, the right to state professional licenses, and many others. You are shamed through the removal of power. 

Zone D – 15 Months-Life/Capital Punishment

Found within Zone D are those we fear; those who have broken the laws of society so significantly or repeatedly that we take a significant part of their life in exchange. In extreme cases, their entire lives are taken from them. We consider incarceration more humane than capital punishment, yet the effects on an individual are immense. During a lifetime love is found and lost. The world is traveled. A career is created. Over a lifetime one cultivates expertise, knowledge, and respect. A generation is replaced by the next. A lifetime taken from an 18 year old is very different from one taken from a 50 year old. An 18 year old facing a life sentence has almost no chance to leave an impact on the world. It is decided that they will be left without the chance to gain worldly experience and forgotten about. Their definitive experience as part of humanity becomes their sentence. At 18 years old one is considered an adult in the eyes of the law, and sentencing becomes much harsher. This bar can be lowered depending on the severity of the crime. At 18 how can we call someone an adult, especially if they have committed a crime? We consider adults ready to live on their own in society, yet we have decided that someone who commits a crime is not. Is this not a sign of a lack of development in some area, and does that not indicate hope for reform?

The earliest American prisons were a combination of “religion, barbarity, and pragmatism.” (Meskell) Major towns had so few people that colonists could not afford nor felt the need to institutionalize convicts, so punishments were immediate and local. In this early system corporal punishment and prolonged humiliation were exceedingly common, as they were designed to deter criminals from acting. It was heavily influenced by the English criminal code initially, which was notably harsh and extensive. An eye for an eye, reminiscent of Hammurabi’s Code, which we now see as barbaric. Despite this we justify capital punishment.

Since 1977 81 countries have abolished capital punishment entirely, yet there have been 1323 executions in the United States. (Death Penalty Information Center) In 2011 we were 5th in the world in our execution numbers. We sit near the top with China, Iran, Saudi Arabia, Iraq, Yemen, and North Korea. It would be hard to have not read about human rights violations in these countries recently. We view these countries as enemies of freedom, having waged literal wars or worked to remove oppressive regimes to combat this, yet we are among them in executions. 

We have old systems of punishment that we view as inhumane, yet we violate the new standards of human rights that we create. We have passed and signed numerous human rights declarations which we subsequently violate outside of established processes and jurisdictions. Julian Assange, founder of WikiLeaks, is currently under political asylum in Ecuador fearing human rights violations if he is extradited. He has been branded as a traitor, an enemy of the country on par with terrorists. In the pursuit of terrorism we took people to Guantanamo Bay, and denied them the rights specified in the Geneva Act. Abuse and torture were rampant, but it was only after the public found out that we shut the program down. At this level there is no sentencing, we use the same techniques that oppressive regimes throughout history have used as torture. There no reason to believe they are safe or effective, but we justify our actions by calling them “enhanced interrogation techniques”. We damage those we suspect of wronging us, both inside and outside of the prison system.

This was written for my College Writing class, after reading The Pain Scale by Eula Biss, with some effort to imitate her style. Read more for Works Cited.

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