Almost every week I walk into court with a client who is shocked by language on a criminal complaint charging them as a “repeater.” “But I’ve never been charged with this before!” is a common response to language on the criminal complaint. Even news outlets inaccurately report on the significance of this term – implying that the language means that someone has previously been convicted of the same conduct. Employers, landlords and others view this term on CCAP and assume the worst.
But the term “repeater” doesn’t mean what you think. The repeater is a penalty enhancer that tacks on two, four, or six additional years of possible penalty if the person who is charged has been found guilty of criminal offenses in the last five years. Technically speaking, a repeater is someone who either (1) was convicted of any felony five years before the charge, or (2) convicted of any three misdemeanors prior to the charge. The repeater enhancer applies to any crime from any jurisdiction in the United States. In my practice, it is common to see repeater enhancers based on convictions from Minnesota, Illinois, Michigan and the Federal system. If the person charged spent time in jail or prison, that time does not count for purposes of a repeater.
So let’s break it down. If you were charged with Operating a Motor Vehicle After Revocation in 2015, misdemeanor possession of marijuana in 2016, and retail theft in 2017, you are a repeat offender when arrested for robbing a bank in 2019. Doesn’t matter that you’ve never robbed a bank before, all that matters is that you’ve been convicted of three misdemeanors within the last five years. Similarly, if you were convicted of the felony offense of stealing farm-raised fish in 2016, you would be a repeat offender when you are charged with disorderly conduct in 2019 because you have been convicted of a single felony within a five-year timeframe. And when you are charged as a repeater, guess what? Offenses like possession of drug paraphernalia that carry as little as thirty days in jail make you eligible to go to prison up to two years simply because you were charged with any crime in the past. Of course, this enhancer is always subject to negotiation, and oftentimes it is removed in the course of settling a case.
I agree that none of this makes sense. Not the language of the enhancer, not the arbitrary scheme of enhanced penalties, and not the lack of uniformity in which the enhancer is charged. I see some prosecutors charge repeater enhancers on the most trivial offenses as negotiating leverage, but others exercise discretion and reserve repeater enhancers only for high level offenders. And like other discretionary enhancers, use of the repeater language varies widely with jurisdiction and even individual prosecutors. Like most other arbitrary variables in the criminal justice system, the repeater enhancer was almost certainly enacted so that legislators, prosecutors, and judges could look tough on crime and feed an already overtaxed prison system. But the main takeaway here is that a “repeat offender” doesn’t mean that you have ever been accused of a particular crime before, just that you’ve been convicted of some crime, related or not, at some point in the past five years.