Scratching the Bitch

Joseph Paiva was born defective, but prosecutors stamped him a habitual criminal.

In early October 1992, Paiva was arrested by Aurora police. In what bore all the hallmarks of a drug deal gone bad (Paiva later complained that a dealer had made him wait to get his cocaine), a man called 911 to report an altercation and a stabbing. It turned out that Paiva, who also sustained a cut to the head in the fight, had thrown a piece of glass at the victim and cut his shoulder.

Over the next several weeks, Paiva seemed incapable of staying out of trouble, although all of it was relatively minor: possession of marijuana, disorderly conduct and giving a false statement to police. He received a total of twenty days in jail for the three crimes. Still, looking back, it seems obvious that he was on the verge of careering out of control.

Indeed, the three weeks he spent in the local lockup apparently did little to deter him. In the last week of December and the first week of January, Paiva suddenly went on a tear, committing a crime every other day, like clockwork. He broke into an Aurora home, ripping out a screen to gain entry, and walked out with a vast and inexplicable array of goods: consumer electronics and tools, old sneakers, cans of beef soup, a rectal thermometer, saltine crackers, toothpaste and a manicure set, among many other items. It also appeared that he'd stayed in the house for some time, eating food.

Hadley Hooper
Despite his disabilities, Joseph Paiva is a talented 
sketch artist.
Despite his disabilities, Joseph Paiva is a talented sketch artist.

Paiva was suspected of breaking into empty houses or cars on December 29 and 31, and January 2 and 4. He stayed a fair amount of time in each place, gathering -- in addition to standard electronic fencibles -- more strange personal items such as toiletries, and usually sticking around long enough to eat more food. In August 1993 he was convicted of two of the break-ins and sentenced to six years in state prison.

Drug- or alcohol-fueled benders are often seen as aberrations in a person's behavioral pattern. But that doesn't matter for criminal purposes. Paiva may very well have participated in a single criminal event, but he was nevertheless charged with, and convicted of, multiple crimes. They were his first felony convictions. But the number would come back to haunt him.

Paiva was released from prison in November 1997, after a stay of just over four years. A subsequent report on his criminal history explains that he was not considered for parole earlier because of his learning disabilities. The parole board reasoned that, because he could not read or write, Paiva probably couldn't hold down a job, either. And since he was incapable of learning those skills, he simply stayed behind bars.

"Paiva's only plans to date are to return to his family in Aurora, collect SSI and do odd jobs," a prison counselor at the DOC's Buena Vista facility wrote at the end of 1994. "I would not consider these plans adequate. Need to develop skills to insure success and eventual release."

Most states have some sort of law that reserves extraordinary punishment for criminals who just can't seem to stop. Phil Cherner, a longtime Denver defense attorney who has researched the issue, says he has found examples of such laws in Colorado as far back as the 1940s. Under the statutes, a person with, say, five criminal charges against him can receive an extra sixth simply for being a particularly persistent criminal. Think of it as a negative bonus.

The theory behind such laws isn't complicated; in fact, it's corrections at its most basic. Habitual-offender laws target the worst of the worst -- the criminal who, at one level or another, seems to have decided to make a career out of breaking the law. He cannot, or will not, be reformed.

"At some point, we have to admit that these people just aren't getting the message," says Frank Daniels, Mesa County district attorney. Habitual-offender laws give prosecutors a tool to single out hardened criminals and lock them up for a very long time, if not forever. After all, if a person is in jail, he cannot hurt society anymore.

For many years, these laws were often more crude than fair. A criminal who did enough crimes was given a lengthy sentence based on the simple repetition of bad behavior, not necessarily the bad behavior itself. A person with five drug crimes could just as easily end up in prison for as long as a person convicted of five assaults.

About ten years ago, the laws were changed so that prison sentences could be calculated based on the severity of actual crimes being charged. Instead of adding time to a person's sentence, the new laws applied a multiplier. Today in Colorado, a person can be charged with the "big bitch" or the "small bitch."

"Small" is getting busted for a felony with two previous felony convictions within ten years. If convicted a third time and then identified as a habitual offender, the person can get three times the median penalty for his latest crime.

The "big bitch" occurs when a criminal is busted for his fourth felony offense. If then convicted as a habitual offender, the law calls for him to receive at least four times the median sentence he would have earned for his last crime.

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