Competency Litigation Concludes With Consent Decree
Results require new divisions within Department of Human Services

by Tony Flesor

Long-running litigation over the time-frame for competency evaluations for criminal defendants resolved with a consent decree.

After the issue went through multiple rounds of litigation and settlements, the consent decree is expected to resolve the litigation. The result includes changes in the Colorado Department of Human Services’ structure and is expected to lead changes in other states around the country.

The latest litigation involved Iris Eytan of Eytan Nielsen, Caleb Durling of Fox Rothschild and Ellie Lockwood of Snell & Wilmer on behalf of Disability Law Colorado. DLC was also represented by Tim Scalo of Snell & Wilmer and Mark Ivandick and Jennifer Purrington of DLC, all under the umbrella of the Colorado Lawyers’ Committee. The latest litigation started when the attorneys reopened litigation from 2012 after an earlier settlement expired.

The large-scale issue began even earlier, though, with a criminal defendant who was incompetent to stand trial but was awaiting a competency evaluation. Eytan said DHS was required to evaluate him, but there was no statutory guideline for a reasonable time for that evaluation.

Eytan said the defendant, who had only been charged at that point, sat waiting in jail with his case stayed while awaiting the competency evaluation. His, and others’, detention was a 14th Amendment due process violation, Eytan said. “[He] was in jail for six months before the public defender came and said this situation was going on.” Eytan, Lockwood and another attorney stepped in and found the situation wasn’t limited to that case — 80 others were waiting for evaluations as well.

Those cases resulted in a settlement that required evaluations to happen within 24 days. That settlement expired in 2009, though, with the opening of a 200-bed forensic facility in Pueblo, which was expected to reduce wait times.

By 2010, they alleged in the latest case’s complaint, the wait times began building up all over again. The group of attorneys reopened the earlier litigation and reached settlements in 2012 and 2016. By the summer of 2017, the department said they were out of compliance and asked for a six-month timeout to come back into compliance. Eytan said they have still yet to come back into compliance.

After months of settlement negotiations, DLC and the department agreed to mediate the issues and on March 15, entered into a consent decree. Eytan said a consent decree was the goal from day one. “Disability Law Colorado felt that was the only real way to impact a systemic issue, but the state would never agree,” she said.

According to Durling, the change in administration in the governor’s and attorney general’s offices marked a major change in getting the consent decree.

“We had seen a different concern, attention and appreciation from them about this issue and how to address it,” Durling said.