Scratching the Bitch

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

Phil Clark, the deputy district attorney who runs the program, says the board meets about once a month -- "like a strategy session," he explains. During that time, he tries to gather as many bitch-case candidates as he can. "I try to get as many as we can handle," he says. "I keep looking for them."

The boardmembers present their cases and then make a recommendation for sentencing. Clark takes that information to DA Peters, who decides whether the defendant should be bitched. Says Clark: "If we feel a person is an extreme menace to society, we're going to try to take them out of commission." He notes that a recent dip in the number of cases being handled by the DA's office is a mark of the program's success: The bad guys are being removed from the streets.

Still, the program is not universally popular. Defense attorneys complain that the board is too secretive, a prosecutorial star chamber where decisions are made without any consideration for a defendant's special circumstances, such as drug use, mental capacity or upbringing. Once a case goes before the board, they add, there is no possibility of a plea bargain -- or even a reconsideration of the board's decision. "You're pretty much talking to deaf ears," says one former public defender.

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

The difference such a board can make is illustrated by the case of Dennis Barnum. In 1996, Barnum, then in his fifties and with an IQ just below seventy, was arrested for five burglaries -- one in Aurora and four in Arapahoe County. Although he'd stayed clean for a number of years, Barnum did have a number of earlier non-violent convictions. But a mid-life crisis, followed by a crack-cocaine habit, shoved him off the wagon.

Barnum was convicted of his crime in Aurora and sentenced to twelve years in prison. According to his public defender, Hollynd Hoskins, he was a model prisoner, working in minimum security and traveling around the corrections system to perform in the prison choir. Once, when a sheriff's deputy was attacked by a couple of other inmates, Barnum stepped in and saved him from serious injury.

In Arapahoe County, however, prosecutors decided to charge Barnum as a habitual offender, despite a recommendation from the Adams County sheriff's deputy whom he'd saved from the beating. Barnum was subsequently acquitted of three of his four Arapahoe County burglaries. But when added to his prior offenses, the one conviction still qualified him as a chronic offender. He was sentenced to 48 years in prison -- four times the sentence Aurora gave him for the same crime. The longer sentence meant harder time: Today Barnum is no longer given the freedom to sing in the choir or work with minimum supervision, Hoskins says.

The difference in the way her client's case was handled made Hoskins -- now a public defender in the Denver office -- furious. "The board is sterile; it's an abuse of discretion," she fumes. "They just process: ŒWhat are the charges?' Boom. They're done. There doesn't seem to be a rhyme or reason as to how they work."

Even Craig Silverman, a former Denver prosecutor, is uncertain about Arapahoe County's more inflexible stance. Although the habitual-criminal law is "an excellent prosecutorial tool," he says, when it comes to using the law in Arapahoe County, prosecutors there seem unwilling to discern between very serious and less serious crimes.

"The judgment that has been exercised by Jim Peters and his office is not the judgment I'd exercise," says Silverman. "I don't like cookie-cutter justice. But maybe that's what the people in Arapahoe County want."

In February 2002, Paiva's public defenders pleaded for leniency. "Unlike the stereotypical chronic offender [who is spared prison sentences for his first offenses], Joseph went to prison for his first felonies," they wrote in a last-ditch appeal to Clark, the Arapahoe County deputy DA.

"This is not a situation where he has been in and out of prison repeatedly. Joseph's initial involvement in the adult criminal justice system was a prison sentence. He has never been given a chance at probation or community corrections. The charges before you violated individuals' property rights, however, Joseph never threatened the physical well being of any the victims."

Clark was unmoved. Nine months later, on November 5, Paiva was sentenced to four times the twelve-year maximum penalty of his worst burglary crime, or 48 years in prison. "Just lock them up," says a bitter Jon Portman, who heads up the state public defender's office in the 18th Judicial District.

Two private attorneys, Neil Silver and Tom Carberry, have taken on Paiva's appeal, arguing that he was poorly represented by his first lawyers and that his disabilities and abusive background ought to have been given more weight in contemplating how long he needed to be behind bars.

"The [Chronic Offender Board] didn't even know anything about his educational issues," complains Carberry. "At one point, the judge asked Joseph how many years of school he had. He told them Œeleven.' Well, yeah -- all the way to the second grade."

Carberry, who has worked as a public defender in both Denver and Arapahoe counties, says the difference between how each handles its habitual offenders is striking. "It's like being in two completely different countries," he says. "In Denver, they know the difference between a serious criminal and a defective human being."

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