Scratching the Bitch

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

For example, a person charged with simple second-degree burglary could be sentenced to anywhere from four to twelve years in prison. A three-time loser designated as a habitual offender convicted of the same crime, however, could get as much as four times twelve, or 48, years in prison.

Working up sympathy for habitual criminals is an exercise in compassion over vindictiveness, and many such criminals will never inspire any debate. The rapist who gets out of prison only to rape another victim certainly deserves the worst the justice system can throw at him. But there is less agreement when it comes to non-violent offenders -- which, perhaps surprisingly, make up the bulk of chronic criminals.

The popular perception is that all habitual criminals are persistently violent. Yet most are not. In 2002, the Colorado Department of Corrections accepted 46 new prisoners (all but one of them men) who'd been designated chronic offenders with at least three previous felony crimes. Of those, only eleven -- or just under one quarter -- were convicted of crimes of violence.

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

The largest category of habitual offense was drug use; second was theft. Those who received the longest sentences were burglars -- an average of 52 years in prison. That's a much longer sentence than even some violent offenders receive: In 2002, the sole habitual offender convicted of vehicular homicide was sentenced to only 24 years in prison.

Moreover, despite the mathematical precision the habitual-offender laws promise, there can also be inequities in how habitual offenders convicted of similar crimes are treated. Take drugs. Last year, frustrated over a case in which a man had been sentenced to 64 years in prison for possession of half a gram of cocaine, a Denver public defender named T. Marshal Seufert compiled a list of every Denver defendant convicted as a habitual offender for a drug crime over the previous six years. The sentences of the eleven men varied wildly, even among those busted primarily for possession. The shortest sentence was four and a half years, the longest just under one hundred years in prison.

Defense attorneys also complain that there is no automatic provision in the law to take into account what are known as mitigators, or extenuating circumstances. Consider the person who screwed up in his youth, getting convicted of three burglaries.

For the big bitch, there is no statute of limitations for forgiveness. If you break the law again thirty years after your first crimes, you can still be prosecuted as a habitual criminal.

Habitual-offender laws are also subject to the same abuse found in the prison system in general -- except that because the sentences in question are longer, the injustice can be greater. A 1998 National Institute of Justice study of prisoners convicted under Florida's habitual-criminal law found that, all things being equal, black defendants were far more likely to be identified as chronic offenders. This was especially true when they'd been convicted of property crimes against white victims.

There is a hard logic to long sentences: A person in prison will not be committing any more crimes. Few politicians have been punished for advocating harsher crime laws, and habitual-criminal statutes have proved very popular. Among tough-on-crime types, the theory persists that when it comes to prison time, more is better.

About a month ago, Attorney General John Ashcroft directed federal prosecutors to crank up their efforts to get longer prison sentences by rejecting plea bargains wherever possible and seeking the longest sentences they could. The attorney general also requested that his office be notified whenever a federal judge handed down a sentence considered more lenient than recommended by sentencing guidelines -- presumably to ensure that judges felt some of the heat as well.

In contrast, many state justice administrators are beginning to re-examine the wisdom of extremely long prison sentences. "There is a recognition among policy-makers that many current penalties don't produce good outcomes," says Daniel Wilhelm, director of the state sentencing and corrections program at the Vera Institute of Justice, a non-profit research and consulting company in New York City. Wilhelm says that in the past two or three years, there has been a quiet movement to undo some of the more draconian sentencing reforms of a decade ago.

Several states, such as Arizona and New Mexico, recently created commissions to review their entire sentencing systems. Others -- Michigan and Delaware are the latest -- have repealed mandatory minimum drug sentences. New Mexico and Alabama passed laws that lowered sentences for non-violent habitual offenders.

Last year, Indiana enacted a law that gives judges discretion to suspend the sentences of convicted offenders if drugs, alcohol or mental illness played a role in their crimes. This is the opposite of the current model, in which prisoners convicted of a drug offense might be sent to treatment while the guy who stole to support his crack habit is convicted of theft.

Wilhelm says that some of the reforms reflect changing attitudes in the way prisoners are treated. Yet the biggest reason for the review of longer prison sentences, he admits, is much simpler. "The driving force," he says, "is money."

Over the past two decades, the prison business has exploded. This is particularly true in Colorado, whose inmate population has grown faster than the national average. The number of state prisoners has more than doubled in a decade, from about 8,500 in 1992 to 18,650 in 2003. To put that in perspective, if Colorado's general population had grown at the same rate, the state would be home to ten million people -- more than double its current four million residents.

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