Scratching the Bitch

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

Jefferson County, for instance, has used the law relatively sparingly. Between 1998 and the end of this past September, prosecutors there filed only 49 habitual-criminal charges -- about eight per year. That's a tiny number for the second-most populated county in the state.

On the other end of the scale is El Paso County, where, given the choice, you probably wouldn't want to commit your third or fourth felony. El Paso County has a slightly smaller population than Jefferson County. But in the same six-year period, the Colorado Springs-based district attorney's office filed 719 habitual-criminal charges.

That averages out to 120 per year -- or fifteen times the number filed in Jeffco.

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

Denver district attorneys, too, have been judicious in their use of the habitual sentence option. In the past six years, prosecutors for the state's most populated county filed 268 bitch cases. That's considerably more than Jefferson County -- but then, Denver is an inner-city jurisdiction with higher crime rates.

Certainly not higher than Mesa County, though, where the mid-sized town of Grand Junction passes as an urban core and the county population is barely a fifth of Denver's. Nevertheless, prosecutors in that Western Slope district have designated 483 criminals as habitual offenders over the past six years -- nearly twice as many as Denver.

It could be that criminals in Grand Junction and Colorado Springs are much more dogged in their enterprises than Denver's lawbreakers and thus deserving of the disproportionately large number of habitual designations. More likely, however, is that local prosecutors have calculated that, for whatever reason, seeking longer sentences is worth the extra work.

Dan May, El Paso County's assistant district attorney, is unapologetic. "We are actively looking for the guy we think that each day he's out there, there's another potential victim," he says.

Daniels, the Mesa County DA, is even more aggressive. When it comes to identifying chronic offenders, there is little discretion among prosecutors in his office. Without Daniels's personal permission for an exception, every Mesa County criminal who qualifies as a habitual offender must be prosecuted as one.

"I do take a heavy hand on habituals," he admits, adding that he tends to give those convicted solely of numerous drug possession charges a rare break. "But I believe strongly that habitual criminals ought to be prosecuted heavily."

Daniels also says he directs his staff not to solicit or accept plea bargains when they are dealing with chronic offenders. It is a point of pride, he adds, that in a given year, tiny Mesa County contributes up to half of all habitual offenders in the state prison population.

Both May and Daniels agree that their emphasis on locking up chronic offenders for a long time reflects their conservative constituencies. "Our community tends to be more law-and-order than others," notes May.

By comparison, Denver DA Bill Ritter says that with the thousands of cases that come through his office, he literally can't afford to charge everyone who qualifies as a habitual offender. He says this is particularly true when it comes to persistent drug users.

"We have 2,300 drug cases a year, and a lot of those people have records that might qualify them to be charged as a habitual offender," he says. "So we've been very careful when it comes to filing against them. We have a lot of people with two or three priors that might add up to less than a gram of crack cocaine total. Our prisons are terribly crowded already; are these the people we want to put in them?"

With non-violent offenders, too, Ritter adds, he likes his attorneys to consider the whole case and determine whether the defendant really deserves extra time behind bars. For example, he says, "if someone's a shoplifter and convicted of two priors, they're going to have to go to prison. But should they really go as a habitual offender?"

Although he gives his individual prosecutors discretion whether or not to bitch their cases, Ritter stresses that he has specific guidelines for plea arrangements. Generally speaking, a prosecutor cannot bitch an offender who doesn't really merit the charge. "I've been very clear to my prosecutors not to use it on a weak case," Ritter says. "We do not file to gain a plea bargain that is not doable."

The 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties, falls on the lower end of the scale in terms of use of chronic-offender laws. Between 1998 and now, District Attorney Jim Peters filed 47 habitual-offender charges, or about eight per year. Still, with a no-compromise, tough-on-crime reputation -- a recent study showed that the 18th took more cases to trial than any other judicial district -- Peters relies on a unique and aggressive program to make sure that the criminals he feels deserve habitual offender status get it.

About fifteen years ago, the district started the Chronic Offender Board. Made up primarily of prosecutors and law-enforcement officials and funded by Arapahoe County, it is a forum for representatives of various police agencies to bring attention to persistent criminals they've dealt with in the recent past and, with any luck, get them prosecuted as habitual offenders.

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