Scratching the Bitch
When Joseph Paiva was arrested for breaking into a half-dozen neighborhood homes around his mother's Aurora house and stealing TVs, stereos, jewelry, CDs, lapel pins, coins and other fencibles, his mother was shocked. But as the days passed and she thought more about it, she realized that, really, she was just caught off guard, and even then, only in the way that you might be if your dog snarled at you. The idea of her son getting into trouble with the law wasn't particularly hard to imagine.
"I was surprised," his mother, Sheila Powers, says, "but I don't know why. I've been through a lot with this kid. A lot. All the times I've had to visit him in different places. Trying to help him with umpteen billion things, and still he'd always mess up."
You might say that Joseph Paiva has made messing up a lifelong habit. He was big trouble even before kindergarten. By the time he'd reached elementary school, his family had already thrown up its hands, and he was soon off on what he now calls his "long journey" -- a three-decade trip through the land of government programs and services.
Early on, Paiva was found to have an IQ of about seventy; it was predicted that he probably would never be able to process information much better than an elementary-school student. "They tell me I can get a GED," he says, "but they're full of it. I just don't understand things." He even has trouble remembering information immediately after he hears it. That frustrates him, which makes him mad. His temper has cost him friendships, jobs and homes. One thing builds on the other.
For Paiva, the idea of a family was a temporary one, and he grew up surrounded by a revolving cast of characters from group homes, foster homes and residential treatment facilities -- all before he was a teenager. There were countless trips to mental-health counselors and treatment centers, psychiatric hospitals and psychologists. And, of course, in the end, when Paiva became old enough for it, there was prison.
Paiva's final burglary spree began on August 3, 2000, and ended two weeks and as many as six break-ins later. After seeing his criminal scorecard -- which included a handful of other offenses nearly a decade earlier -- the Arapahoe County District Attorney's Office declared Paiva a "chronic offender." In the lingo of prosecutors and criminal-defense attorneys, Joseph Paiva, by then 38 years old, was "bitched" -- short for being identified as a habitual criminal -- and sentenced to 48 years in prison. If he is released at all, he will be retirement age.
Among prisoners, Paiva's story is not especially unusual. Thousands of criminals, drug addicts and social losers end up behind bars because, as with Paiva, there is no place else for them to go.
If anything, Paiva is extraordinary only in that he is a much better example of this than others. Anyone with intuition who had observed his first ten years probably could have plotted the trajectory of his life with near-perfect precision: institutions, unemployment, drugs, crime, prison. Nowhere along the line did he appear to be even close to breaking out of his seemingly pre-determined path.
The terms "chronic offender" and "habitual offender" speak for themselves and are generally used interchangeably. These are people to whom the law has given more than enough chances to fly straight; irredeemable, the theory goes, they must be locked up for a long time -- if not forever -- to protect society.
Prisoners like Paiva are complicated cases, though. He's not a murderer; he hasn't committed any violent crimes. And yet you probably wouldn't want him as a dinner guest. Diagnosed as developmentally disabled, a victim of child abuse, a socially inept lifelong ward of the state, Paiva is a prism through which people's views of long-term incarceration are refracted in opposite directions. Depending entirely upon your view, you might consider Paiva the perfect candidate to be labeled a chronic offender and sent off to prison for life.
Or you might see him as a man who without question belongs under someone's close care -- but certainly not that of the Department of Corrections.
"I was born in New Mexico," says Paiva, who has a large, square face and is built well, in the slab-muscle way of a weightlifter. "I forget exactly where."
"No, he wasn't," his mother says. "He was born in Denver. We lived in Commerce City."
As he tells it himself, Paiva's story is a non-linear tale, with episodes and recollections that come and go, not necessarily in any real order. He can skip over a ten-year period without remembering much of anything. "A lot of things happened in my childhood that I can't really keep straight," he admits.
Sheila Powers remembers meeting Paiva's father, Robert, a painting contractor, while working as a waitress at Walgreens. Robert was friendly and funny, and it wasn't until later, when she was married to him and pregnant with Joseph, the first of her three children, that Powers discovered her new husband could be violent.
"He was just a mean person," she remembers. Robert Paiva almost certainly struck Joseph several times; Powers recalls her husband once shaking his son violently in his crib. But, she adds, while Robert occasionally hit his children, he saved his hardest blows for her: "He beat me all the time."
Powers says she could tell right away that something was "not right" with Joseph, and her son underwent his first psychological evaluation when he was only six years old, still in kindergarten. A Denver Public Schools evaluator noted that Paiva had been referred for hyperactivity but that he also had "recently been on medication, and this may account for the extreme changes in his behavior." Paiva had already been prescribed several popular drugs to treat his unruly behavior: Dilantin, an anti-convulsant; Dexedrine, speed; and Ritalin, a stimulant.
Despite Paiva's manic classroom behavior, the psychologist noted that the boy's behavior under observation was characterized primarily as torpid: "He was extremely slow reacting in his speech and movements.... Joe entered willingly into the various tasks but it usually took him a very long time to respond. He would just sit for several seconds before attempting to answer or react to performance items."
Judged to be at a learning level about a year below his chronological age, Paiva was referred to a special-education class in a Denver public school. There he received Cs in every subject except art; he earned an A in that class. The following year, his disruptive behavior prevented him from receiving any grades except one: a B in art.
"Joey has trouble remembering or interpreting what he hears," one teacher wrote, adding, "Joey is very sensitive to failure or teasing." Another note reads: "Joey is learning to accept the consequences of his actions in terms of avoiding hurting other people." Despite such concerns, during his third-grade year, his special-education teacher recommended that Paiva be mainstreamed back into a regular classroom.
In November 1972 -- it would have been right around Paiva's eighth birthday -- a clearly exasperated teacher observed that "Joey is like a whirlwind, hitting a typewriter, swinging at kids in the hall." A home visit by one of his teachers at this time revealed "a small, well-kept one-bedroom" home, although the teacher noted that the "children look pale and tired. The baby rocks continuously. Parents are 'nervous.'"
It was a benign assessment compared with what happened when no one was watching. Later records reveal a violent household, as well as one in which the Paivas seemed ill-equipped to deal with a child as demanding as Joseph. In May 1970, Paiva -- then five years old -- and his younger sister had been removed from their parents' trailer home after a neighbor observed the children chained to a tree in the yard.
A new place to live was not the answer, though. Paiva's erratic behavior made him difficult to control, no matter where he was. Over the next six months, he was moved in and out of three foster homes before being returned to his parents' custody.
By the time he was ten years old, Paiva's behavior problems had become more pronounced. His mother remembers one incident in which he walked out onto a window ledge at school and threatened to jump off. Paiva himself recalls "one time I tore a lot of tiles off the roof there." There is some evidence that he set small fires, and he and his mother verify that he ran away from home with regularity.
"His teachers said I should get more help for him," Powers remembers. So in March 1975, with his mother's grateful permission, Paiva was admitted to Fort Logan Mental Health Center with "severe emotional problems." For all intents and purposes, it was the end of his life at home.
Paiva stayed at Fort Logan for a year. "Joe was in constant motion, talking, making noise, looking around, or doing something with his hands," a counselor wrote that summer. When the year was up, he was released to Wallace Village for Children, a residential treatment facility in Broomfield for emotionally disturbed children. He lasted there only nine months before being released as "incorrigible."
By the end of 1976, just after his twelfth birthday, Paiva was back at Fort Logan. An assessment found him to be a troublesome resident, even for the facility's trained staff: "Joey's aggressiveness was unpredictable and it was difficult to tell how far he would go with his anger," a psychiatrist's note from that period reads. "Firm and consistent limits needed to be set."
"Joey has a very low frustration tolerance, which he demonstrates daily," another note from this period states. "When he is dissatisfied with his performance, he begins to cry, scream, and curse because he did not do well or he lost the game and someone laughed at him." For the first time, psychiatrists performed an EEG -- a neurological exam that maps brain activity -- on Paiva. It revealed abnormal patterns, suggesting an organic explanation for his behavioral problems. But the discovery didn't provide any fresh solutions.
A half-year later, Paiva was referred to yet another treatment center. Still months before he became a teenager, he was already a veteran of the social services system, with no real reason to feel optimistic about his future. "Joey has a long history of institutionalization, with poor treatment progress," his Fort Logan discharge report reads. "He is in need of long-term treatment in an intensive treatment situation. A referral was made by the Denver Child Welfare Department to the Brown School in Texas."
Paiva spent three years at the Brown School. He remembers the Brown School as the sole positive experience in his long history of institutions. "The best place I ever went to was Brown School," he says with unusual clarity. "I had a one-on-one tutor, was getting my education. I didn't want to leave, it was so good there. In my mind, I knew I was doing good -- real good."
Assessments made by mental-health workers at the time confirm that Paiva was making some slow progress in learning to control his behavior. But they also noted severe limitations. With the chronological age of a high school sophomore, Paiva was still a "non-reader.... Neither return to public school nor obtainment of a GED are seen as viable goals. Due to the severity of his dyslexia, Joe will probably not be able to develop his reading skills to a literate (fourth grade) level."
Despite his improvement, Paiva was discharged from the San Marcos, Texas, facility in June 1980. A report says simply that "the local department of social services had discontinued funding." By then, at the age of fifteen, he had spent nearly half of his life in various homes and institutions.
With no place else to go, Paiva returned to his mother's house in Aurora. Again, however, she was unprepared to care for him. Less than two months later, she placed him on a bus to go live with his father in Pueblo -- a plan that Robert Paiva was apparently unaware of or simply decided to ignore. Instead of his father, who was nowhere to be found, Paiva was met at the bus station by a social worker and taken into "emergency custody" by the local social services office.
Records show that three security guards were needed to control him. His furious behavior -- understandable but not acceptable -- earned him immediate admission to the Colorado State Hospital. He was discharged to a foster home three months later, again with minimal hope. "The prognosis is guarded in view of Joe's long history of institutionalized care and his continuing need for a very highly structured setting to help him function adequately," his final hospital report reads.
Even those low expectations turned out to be optimistic. Within months, Paiva had been moved from his foster home and installed in Savio House, a Denver-based treatment center for troubled adolescents. While there, he attended West High School for several months. He was subsequently removed from Savio, however, after he assaulted a staffer and poured lighter fluid on a windowsill and ignited it. By August 1981, he was back at the Fort Logan Mental Health Center for the third time.
Now seventeen years old, Paiva was an experienced patient. The intake interviews, group counseling sessions, communal living arrangements and constant testing were familiar ground. His problems -- angry outbursts, difficulty in getting along with others, a burgeoning drinking problem, slow learning and effective illiteracy -- were well-known and extensively documented. After three months of group and individual therapy at Fort Logan, he was released to the Emily Griffith Home, where he stayed for nine months.
From here the trail of Paiva's teenage years grows faint. One report states that he spent the remainder of his teens in foster homes. Paiva himself says he returned to Wallace Village -- a version another report supports. His mother doesn't remember much, perhaps because by that time, her contact with her son had dwindled to little more than occasional visits and sporadic letters.
What is known is that once he turned eighteen, Paiva had reached a sort of social services purgatory. Not handicapped enough to earn 24-hour in-patient mental-health care, yet too disabled to hold a steady job, he was turned loose to live on his own. He applied for and began receiving disability payments from Social Security -- his mother recalls that the checks were for about $400 a month. Paiva says he lived for a while at a boardinghouse in Pueblo, during which time he didn't do much: "Nothing, really. Go out, explore. Made a couple of friends."
Although Joseph Paiva's learning and social development had stalled, one thing that had changed by this time was that for the purposes of crime and punishment, he was now an adult; his transgressions were no longer incidents that could be considered youthful offenses, deserving of yet one more program.
Legally speaking, he'd grown up. The cops didn't have to wait long.
In January 1986, at the age of 21, Paiva was busted by the Pueblo County Sheriff's Office for stealing a couple hundred dollars. He was sentenced to six months' probation.
The incident seemed to be an aberration. For the next six and a half years, Paiva stayed out of trouble -- or at least out of the sight of local authorities. Toward the end of 1992, however, something happened. Paiva himself is unable to explain it, other than to say he got mixed up with the wrong people. Looking back, it doubtless had to do with his newfound interest in cocaine. But whatever the catalyst, over the next three months, he would, block by block, begin laying the foundation for a life in prison.
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.
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.
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.
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.
Much of the prison growth can be traced to longer sentences for criminals. Thanks to a series of get-tough-on-crime laws passed in the 1980s, the average time inmates stay behind bars has ballooned. Although legislators have enacted modest reforms to reduce sentences since then, the surge in the number of inmates has not slowed dramatically.
Not surprisingly, habitual offenders are, on average, in prison longer than anyone else. In 2002, the typical chronic criminal stayed locked up just under ten years. Many of the sentences are getting longer, too. In 1998, the average sentence for someone convicted of habitually committing burglaries was 36 years. Last year it averaged 52 years.
Having so many convicts waiting around longer for their release dates is far from cheap. Since 1994, Colorado taxpayers have ponied up more than a half-billion dollars to build new prisons or expand existing facilities. Even with that splurge, most of Colorado's prisons already are filled well beyond the number of inmates they were originally designed to hold.
The day-to-day cost of caring for so many criminals adds up, too, and the amount of money Colorado residents must pay to maintain the state's corrections system has grown disproportionately to the rest of the budget. A decade ago, 5.3 percent of the state's annual general-fund budget went to the Department of Corrections. This year, the DOC will need 8.5 percent of the general fund -- or a 60 percent jump -- to pay for its lockups.
Most states have seen similar trends. Thanks to the current budget crisis, however, such big numbers are now starting to attract the attention of lawmakers across the country. More and more of them are starting to wonder: Are long sentences worth the cost?
Upon his release from prison at the end of 1997, Paiva had no income. His Social Security payments had been cut off while he was in prison, but when he reapplied for them after serving his time -- once again citing his learning disabilities -- he was denied.
"They said he didn't need SSI -- that he could make it on his own, if you can believe that," his mother says. "But there was a lot of things he never could do. You couldn't tell him, 'Take this and go here and then go over there and do that.' He couldn't remember a line of things, only one or two."
For a time, Paiva attended Denver's Bayaud Center, which teaches vocational skills to the disabled. Paiva remembers that "they took care of me for a couple of years. They sent me out to do work." One job he recalls is silk-screening. But, he adds, he never lasted long at anything.
"Their equipment was so sophisticated and mind-boggling," he recalls. "My problem was that I asked too many questions: 'Where do I work? What do I do? What should I do next?' I can't go to work with intelligence and smarts, just go to work like everyone else, no questions asked, know what to do. I can't remember stuff; I get confused. There's so much going on in my brain."
Nevertheless, Paiva appears to have stayed out of the police's way for the next couple of years, working occasionally for his uncle in construction. But he also never really adjusted to life on his own. "We found him three different places to live, and he got kicked out of all of them," his mother remembers. "Mostly for wild parties, I guess, and breaking stuff." Eventually he moved into a room in his uncle's house with his mother.
Although Sheila says she doesn't recall her son doing anything out of the ordinary, it appears that by the middle of 2000, Paiva almost certainly was doing drugs again and that he'd once more fallen in with a bad group of friends. "I started running into old friends, mostly street people," he remembers.
For anyone familiar with his history, the result would not have been difficult to predict. In early August 2000, Paiva went on another two-week stealing spree; most of the burglaries were concentrated in a seven-day period. Starting on August 3 and again on August 11, 15, 17 (twice) and 18, he apparently broke into six homes. All of the break-ins were done during the day, when the homes were empty. All were within a mile of his uncle's Aurora home. This was probably due to transportation issues; Paiva seems to have bicycled to most of the crimes.
Paiva was finally busted on August 18, when a woman returned unexpectedly to her home in the middle of the day and discovered Paiva inside. He bolted from the house but was arrested soon after. The cases were not particularly difficult to make; many of the stolen goods were found at Paiva's uncle's house in black plastic bags. More was traced to him through pawnshops.
In March 2001, citing Paiva's string of break-ins, Arapahoe County District Attorney James Peters filed a bitch motion with the court, asking that Paiva be considered a habitual offender. It was granted three months later.
One concern about habitual-offender laws is that they are enforced unevenly. Although the law is the same across Colorado, an examination of state judicial records shows that you are far more likely to be bitched in some parts of the state than others.
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.
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."
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.
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.
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."
Paiva's odds of winning a shorter sentence are abysmal; Clark says he has never lost a habitual-offender appeal. Besides, even if Paiva receives some relief from his sentence, there will always be the issue of where he should go next. Prison might not be the right place for him, but then, where else is?
Holding a conversation with Paiva is an exercise in patience. There are long pauses between his sentences, as if he has forgotten the conversational thread. If he hears too many questions he can't answer at once, his brow furrows, and he becomes first frustrated, and then angry. He apologizes for not remembering much. He prefers to talk about his art. He is a talented sketch artist, and his drawings are posted in many of the cells in the Arkansas Valley Correctional Institute outside of Rocky Ford.
Paiva's mother admits that over the years, nothing really has had an impact on her son's behavior. "I don't think anything helped him," says Sheila Powers, "other than maybe controlling his temper a little bit. He's got a terrible, terrible, terrible, terrible, terrible temper."
Consequently, she says that she, too, is at a loss over what to do with him. "I told him if he gets sent up to prison again, I wouldn't visit him," she says. "If he gets out, he ain't gonna have no place to go, because his aunt and uncle ain't gonna help him again. I don't know what to do. I think he could live on his own. I think."
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