The Big Bitch
On the Saturday before Easter 2010, Dennis Pauls got it into his head to give his ex-wife a plant. It was an Easter lily, a Christian symbol of suffering and renewal; tradition says white lilies bloomed where Christ's sweat fell to the ground in the garden of Gethsemane, a sign of the resurrection to come.
Pauls thought the plant made a perfect farewell gesture, a benediction and peace offering. He was 57 years old, an age when many people are preparing for their dream retirement. But Pauls had embalmed his dreams in alcohol. He'd once been a successful producer of audio-video materials for nonprofits and small businesses. He'd voted Republican, lived on a golf course in Lone Tree and been a benefactor of the local symphony orchestra. His drinking had changed all that, costing him his marriage, his friends, the house on the golf course — even his freedom.
On the day he saw the Easter plant on sale at Safeway, Pauls was making plans to leave Colorado for good. He'd just completed parole after serving several months in prison for forging checks on his ex-wife's account to pay for food and booze when he was on a bender. He considered himself a recovering alcoholic now, although he still had lapses when the thirst hit him.
He left the plant on his ex's porch with a note: Good Lord, it is Holy Week. Happy Easter. I am proud of you and Chloee. Chloee, the couple's beloved Chesapeake Bay retriever, was something else drinking had cost him. His ex had gone to court for a restraining order to keep him from bothering either one of them.
Within a few hours, Pauls began to feel anxious about what he'd just done. Leaving the plant was a violation of the restraining order. He thought about rushing back to the house to retrieve it before his ex found it, but what if someone saw him there? Better to fix a Scotch and get busy on his move to Florida.
Four months later, while in the throes of what he would later describe as a panic attack, Pauls made a frantic phone call for help from his new home in Naples, Florida. Local police did a welfare check and ran his name through their records, which turned up an arrest warrant in Colorado for the plant business. He spent three weeks in the local lockup, until Arapahoe County deputies arrived to escort him back to their jail.
Pauls didn't understand why the county was bothering with extradition over such a minor offense. He'd incurred violations of the restraining order before, calling his wife to track down tax returns and other mundane stuff — nothing violent or threatening — and he knew that such conduct was considered a misdemeanor or less.
It was only when he met with a public defender in the Arapahoe County jail that Pauls realized he was in deep trouble. He was being charged with felony stalking, the attorney explained. Pauls already had three felonies on his record: the forgery case and two drunk-driving convictions in Kansas, as well as a deferred sentence for harassment in a dispute with a neighbor. Being found guilty of a fourth felony would make him eligible for what's known in legal circles as the Big Bitch — a finding that he's a habitual criminal and thus required to be sentenced to four times the maximum of what a felony stalking rap would usually bring. (The Little Bitch, which can be applied to a defendant with two prior felonies, triples the maximum sentence.)
His lawyer told Pauls that he was looking at either 24 or 32 years in prison if the Arapahoe County district attorney pursued the habitual charge. Prosecutors were offering a twelve-year deal if he agreed to plead guilty right now instead of going to trial.
Some deal. To Pauls, twelve years in prison didn't sound any more survivable than 32, especially at his age. He was facing a potential life sentence for the crime of delivering a plant to a woman he'd been married to for decades.
"I told him there was no way I could plead guilty to stalking, something I hadn't done, and go away for twelve years," Pauls recalls. "Where is the justice in that?"
Yet the kind of lose-lose choice Pauls was offered — agree to a plea carrying an absurdly long sentence or get "bitched" — is what often passes for justice for repeat offenders in Arapahoe County. The campaign to bitch just about anybody who can be bitched in the southeast suburbs has prompted some criminal defense attorneys to refer to the place as Arapahell: an infernal region that, strictly speaking, doesn't stop at the county line. Under the leadership of District Attorney Carol Chambers, the entire 18th Judicial District, which includes Arapahoe, Douglas, Elbert and Lincoln counties, has become an experiment in prosecutorial overkill unlike anything else in Colorado.
Because the consequences of a habitual criminal sentence can be so grave, most prosecutors use the statute sparingly. In many districts, it's usually reserved for people who commit multiple violent crimes or career crooks, such as burglars, who may be getting caught only a few times while committing dozens or hundreds of crimes. "We see the bitch scheme as a tool to get significant prison sentences for people who need to be incarcerated for a long period of time to protect the community," says Boulder District Attorney Stan Garnett.
From January 2010 until July 1 of this year, Denver prosecutors filed 25 habitual-criminal cases. Prosecutors in the 1st Judicial District, encompassing populous Jefferson County and Gilpin County, filed eighteen cases.
During that same eighteen-month period, Chambers's office filed 623 habitual-criminal cases.
Four years ago, when Westword first reported on the flood of habitual-criminal filings in the 18th, DA Chambers expressed surprise that the numbers weren't higher. "I guess we have fewer habitual criminals than I thought," she said ["The Punisher," February 8, 2007]. She's since stepped up the pace, going from 232 bitch filings in 2006 to 455 in 2010, according to data obtained from the state court administrator's office. Of the 2,028 habitual-criminal cases filed statewide over a three-year period, almost half of them were filed by just one of the state's 22 district attorneys: Carol Chambers.
Does Arapahoe County have a far greater concentration of "people who need to be incarcerated for a long period of time" than the rest of the state? There's no question that Chambers seeks enhanced habitual-criminal sentences for cases involving homicide, assault and sex crimes at a greater rate than other district attorneys — and she's not shy about defending that policy.
"Eight percent of the population commits 80 percent of the crime," she says. "We want to make clear to repeat offenders that they can expect enhanced sentences if they continue to engage in criminal conduct in this community."
But what's striking about the habitual filings in the 18th district is the type of offender being targeted most of the time. In more than three-fourths of the cases, the underlying crime is a non-violent one (see graph). And more than half of them fall into one of three categories: drugs, theft or "escape" — which, in the vast majority of cases, involves not tunneling out of prison, but walking away from a halfway house or failing to keep a parole officer informed of your current residence. A felony escape charge in Denver or Adams County might result in a prison sentence of one or two years; in Arapahoe County, the prospect of a 48-year habitual-criminal sentence for the same offense typically results in plea deals that send the offender to prison for between six and twelve years.
"It's a bit like living in a Third World country," says Jim O'Connor, the 18th's chief public defender. "If you walk across Colfax with a rock of crack in your pocket and you get picked up by the cops in Arapahoe County, your entire universe just changed."
Defense attorneys say that the kind of prosecutorial discretion and case-by-case review that's expected in habitual cases has gone by the wayside since Chambers was elected in 2004. "They file habitual charges on everyone who is eligible, from the very start," says Natalie Chase, a former prosecutor who now specializes in fighting habitual charges. "The purpose of the statute is to punish repeat, violent offenders. What Carol Chambers is doing is taking that a step further: People with simple drug-possession charges are getting habitualized. There's no violence involved. They may have been stopped, and they have crack or cocaine on them. If you question the legality of the traffic stop, if you raise any constitutional issues, all offers are revoked and your client is facing the maximum years."
Chambers disagrees with Chase about the intent of the statute. All prosecutors tend to deal more harshly with people who have prior felonies than with those who don't, she points out; her office just happens to uniformly file habitual charges on everyone who's eligible to "ensure consistency." The fact that many of the underlying offenses are non-violent doesn't mean the offenders don't deserve to have the book thrown at them. Escapes from halfway houses are "a community safety issue," she says, and even property crimes "have a significant impact on victims or the community."
"Seeking an enhanced sentence for a habitual offender is no different than seeking a legislatively authorized mandatory sentence for a crime of violence," she says. And an enhanced sentence of 48 years doesn't really mean 48 years, she adds; since the prison system routinely gives time off for good behavior, it's more likely to be around 24 years.
That may not be much consolation to people serving that kind of time, or to critics who claim the policy costs the state millions in added prison costs. Arapahoe County sends fewer people to prison each year than Denver, Jefferson County or Adams County, yet the high number of habitual cases suggests that the average offender in the 18th is probably going away for a longer period of time than felons from other jurisdictions who commit the same crime.
The district attorneys who file habitual cases less frequently than Chambers certainly don't consider themselves any softer on crime; instead, they talk about what they consider to be appropriate degrees of punishment — and the fact that not all felonies are created equal. "The legislature in the 1990s and early 2000s felonized many offenses that were previously misdemeanors," Garnett notes. "Having three prior felonies can, in some instances, mean three prior convictions for not terribly serious behavior."
Chambers says her deputies have discretion to dismiss the habitual-criminal charge if mitigating factors are involved. The disparity in sentencing between her district and surrounding counties doesn't trouble her at all.
"We serve and are accountable to our constituency," she says. "Denver and Adams serve and are accountable to theirs. We seem to have less crime, so I am not sure it would make sense for us to adopt their policies."
The crime of stalking, as currently defined in Colorado, involves making threats against someone or following them around. It can also be "any form of communication," whether directly or indirectly, "that would cause a reasonable person to suffer serious emotional distress."
Pauls didn't believe he'd done any such thing. Offering a plant to a woman who wanted nothing more to do with him may have been stupid and annoying. But it wasn't a threat, he insisted, and he didn't see how it could have caused a reasonable person severe emotional distress.
As it turned out, he wasn't the only party who took that position. His ex had reported him for violating the restraining order, but she was stunned to learn that he was facing another felony conviction and a possible habitual-criminal sentence as a result. Two months after Pauls's arrest, the victim of the alleged Easter Lily Stalking wrote to Arapahoe County prosecutor Douglas Bechtel to plead for mercy.
"I know that he 'lovingly' placed flowers on my porch," she wrote, "and was probably not of sound mind (under alcohol influence) when he did it. I do not think that he should be charged with 'stalking,' as I don't truly believe that he was stalking me.... As much as my life has been altered by his actions, I hate to see a life ended by spending pretty much the rest of his life in jail.
"I am asking that you consider other alternatives than prison for him. I do not want my actions in reporting him to end his life.... I just feel that taxpayer dollars are better spent helping someone get well, rather than just locking them up and giving them no hope for coming out and trying to be 'whole' at some point."
The former Mrs. Pauls declined to be interviewed by Westword and asked that her name not be published. In any event, her letter failed to sway Bechtel or any other prosecutor involved in the case. According to Chief Deputy District Attorney Jason Siers, prosecutors discussed the letter with the victim, who admitted that finding the plant and note from Pauls had upset her. Her emotional reaction, as well as Pauls's prior violations of the restraining order and a 2002 conviction for harassing a neighbor, more than justified the felony stalking charge, Siers says.
"When I get a stalking case, I work from the assumption that this is a public danger issue," he explains. "There was a pattern here, and that repeated conduct is pretty scary on its face."
Siers acknowledges that there's no evidence that Pauls had ever threatened the victim, but the standoff over whether he'd caused "serious emotional distress" continued. Felony stalking is a Class Five felony, with a maximum sentence of four years — or if, as in Pauls's case, there's already a restraining order in effect, a Class Four with a maximum sentence of eight years. While Pauls stewed for months in the county jail, prosecutors barely budged on their offer. Go to trial and get bitched for 24 years, they said, or plead guilty and get ten years.
His public defender urged Pauls to take the ten years. If he was found guilty of stalking, proving the habitual count would simply be a matter of introducing his prior convictions, he explained.
"I was going to take it at one point," Pauls says. "I didn't want all the dirty laundry aired from my marriage. My public defender said it was a slam-dunk case against me. But I just couldn't plead to that. I'm not a used car, to be traded in like that. I told him I'd go to trial on my own."
Few habitual-criminal defendants dare to go to trial. "You'll have a few who want to fight it," says public defender O'Connor. "We've had some that went to trial and won. But most of them plead, and they're taking deals that are way out of whack with their conduct. Hardly any of them want to stare down the risk of that kind of time and go to trial — even if they're not guilty of the highest counts charged."
For those who do stare down the risk, the results can be disastrous. Ronnie Flohr completed his prison sentence on a 1996 attempted-manslaughter case but ran into trouble with his parole officer, who refused to grant Flohr's request that he be allowed to move to Colorado Springs to take care of an ailing wife and a mother-in-law in an advanced stage of dementia. Flohr admits that he cut off his parole monitor and moved anyway.
While in Colorado Springs, Flohr says he worked two jobs, paid child support and even renewed his driver's license. He contends he's guilty of nothing more than a technical violation of his parole, but the district attorney's office didn't see it that way. Flohr, who also has a prior conviction for escape, was arguably a much greater public safety risk than someone like Pauls — even though his "attempted manslaughter" conviction stemmed from a high-speed chase that ended with a patrol car colliding with Flohr's vehicle, injuring a police officer. He was charged with escape and offered a plea deal of ten years or the certainty of getting bitched. He refused and demanded a trial. He's now serving 48 years — not for a violent crime, not even for escaping a halfway house, but for relocating without permission.
"It is my belief that the 18th Judicial District has punished me because I had the audacity to challenge the charge," he writes from the Bent County Correctional Facility. "I refused to be bullied into a ten-year prison sentence by a malicious and vengeful prosecutor...[so] I am doing more time than most violent offenders, rapists, child molesters and even some murderers."
In a memo to her chief deputy shortly after she took office, Chambers urged her staff to take as many habitual-criminal cases to trial as possible: "Please keep the offers on these cases tough and encourage them to go to trial." But quite the opposite has happened. Habitual-criminal cases go to trial in the 18th even less frequently than they do elsewhere in Colorado. Statewide, the charge is dismissed 90 percent of the time, once a plea agreement is reached; in the Land of the Bitch, the figure is 95 percent. In other words, it's being used primarily as a club to obtain guilty pleas and prison sentences that often exceed the maximum sentence for the underlying crime.
Chambers says it's simply a matter of "resource limitations" that so many of the habitual cases result in plea deals. "No matter how we use habitual-offender counts, we are accused of being coercive or retaliatory," she says. "I leave the issue of what cases should go to trial up to the deputy DAs. There are many other cases that, for various reasons, should go to trial. There are a very limited number of trial weeks available in our courtrooms."
Prosecutors in other districts cut deals on habitual-criminal cases, too, of course — just not as frequently. "The threat of filing the bitch should not be used as a plea-bargaining measure, and it isn't here," says Boulder DA Garnett. "Frankly, the defense bar in Boulder County takes about whatever we offer on any case, so the last thing I'm looking for on a serious case is plea-bargaining leverage."
But then Garnett — like most of his colleagues — isn't as determined as Chambers is to bitch drug users and halfway-house walkaways. Those groups of felons are particularly low-hanging fruit, defense attorneys point out; if you're a drug addict or you're in a halfway house, chances are you already have two or three felonies on your record, which means you're only one more screw-up away from the bitch, if local prosecutors are inclined to file it.
Chambers believes that filing habitual criminal charges on escape cases has discouraged people from absconding from community corrections facilities in her district, and the filing rate supports that position. Arapahoe County prosecutors filed 171 escape cases in 2005 but only 123 in 2009. The number went back up to 150 in the last fiscal year; the district attorney says she isn't sure if that spike indicates a trend or an aberration. She worries that a recent drop in the average sentence reached in escape incidents, from ten-to-twelve years to six or seven, "may have lessened the deterrent effect" of filing bitch charges in such cases.
The supposed upside of increasing use of the habitual criminal statute is that it can result in swifter plea agreements and a more efficient system — in theory. Chambers and defense attorneys disagree about whether that's happening in the 18th. Only a handful of the habitual cases actually end up going to trial, but that doesn't mean anyone is eager to take a double-digit prison term without numerous delays.
"It becomes a game of chicken," says O'Connor. "You can't take the deal at arraignment when it's some 28-year-old guy being offered 24 years on a non-violent crime. The judge gets tired of setting it over, so he sets it for trial — and you still can't take the deal. Sometimes they reduce the offer a little bit. Sometimes the defendant caves. Sometimes you get an offer right before trial that you should have gotten months before, which would have saved a lot of time and expense. You get that offer a lot sooner in other counties. Yet they can't all go to trial."
Chambers says she's investigated O'Connor's claim that habitual cases are bogging down the system and found no evidence to support it. "I asked our staff whether they were seeing more delays than in other cases," she notes, "and they said no, the habitual-offender cases actually move through the system faster."
In July, three weeks before his stalking case was scheduled to go to trial, Pauls received a final offer from Arapahoe County Deputy District Attorney Jacob Edson. The habitual charge would be dropped if Pauls pleaded guilty to Class Five felony stalking; the maximum sentence the judge could give him would be four years.
By the standards of the 18th, it was a hell of a deal. With credit for the twelve months he'd served in jail awaiting trial, Pauls would probably be in prison no longer than another eighteen months. If he went to trial instead, he risked being judged a habitual criminal and sent away for 24 years.
But by this point the case had become a matter of extreme principle to Pauls. He'd been reading Dostoyevsky in jail and felt he was on a mission to expose a grave injustice. He was determined to represent himself — attorney Natalie Chase served as his court-appointed advisor — and persuade a jury that his intentions and his actions had been innocuous.
"For over a year I have been staring at a ceiling," he said in his opening statement, "trying to understand how a government agency can transform a symbol of forgiveness, redemption and hope into a crime."
He summoned his ex-wife to the stand. It was an uncomfortable encounter, but she admitted that she hadn't considered the gift of an Easter lily to be a threat. Pauls told the jury he had violated the restraining order and should be found guilty of that offense. But he was not a stalker, he insisted.
The jury agreed. As he'd asked, they found him guilty of a misdemeanor, violation of a protective order, but not guilty of stalking. With no additional felony on his record, the habitual-criminal count would not apply. Since he'd already served his misdemeanor sentence awaiting trial, he was a free man.
Shortly after his release, Pauls began working on a newsletter and website, telling his story and campaigning for a change to the habitual-criminal policy of the 18th Judicial District. "It's bankrupting the system," he says. "To put me in prison for ten years would have cost the people of Colorado $330,000. I'm going to do what I can to get Carol Chambers and her people out of office. I'm a die-hard Republican, but I'd go to work for a Democrat if it would help change things." (Chambers is term-limited out of office at the end of next year. Leslie Hansen, her chief deputy, recently announced that she would run as a Republican candidate to succeed Chambers.)
Pauls isn't the only one asking questions about the budget-busting consequences of harsh sentencing practices. The Colorado Commission on Criminal and Juvenile Justice, launched by former governor Bill Ritter, has tried for the past three years to get the legislature to overhaul the tough escape convictions that now account for a third of all parolees headed back to prison, for crimes as minor as missing a curfew. The CCCJJ recently formed a working group, with input from prosecutors and public defenders, that's looking at the habitual-criminal sentencing scheme as well, including whether non-violent felonies should trigger the same sorts of consequences as violent ones. Last week the group was presented with data indicating that even modest tweaks to the current habitual statute could shave 184 years off the sentences of three-time losers entering the prison system last year, saving the corrections budget $6 million.
But sentencing reforms are only as rational as the people in charge of the system. A recent New York Times report describes how mandatory sentencing schemes across the nation have shifted power and discretion from judges to prosecutors, wringing coercive plea bargains and short-circuiting the trial process. In federal courts in the 1970s, the ratio of guilty pleas to trials was about four to one; it's now almost 32 to one.
Pauls is still doing the numbers on the high price of his Easter adventure. He recently received a notice from the court saying that he owes the Arapahoe County District Attorney's Office $1,723.42 for the cost of his extradition from Florida, even though he was acquitted on the felony charge that was the basis of his arrest. Pauls isn't quite sure what he's going to do about it, but he expects he'll fight it.
"That was a pretty freaking expensive Easter plant," he says.
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