“Colorado’s competency system is broken,” Rep. Javier Mabrey told the Colorado House Judiciary Committee. Mabrey and Rep. Judy Amabile are sponsors on House Bill 24-1355, Measures to Reduce the Competency Waitlist. The bill creates the bridges wraparound program in the office of Bridges of Colorado in an effort to reduce the time a defendant found incompetent spends in custody before their trial.
“The system as it stands is not a system that helps people, or a system that makes Colorado safer,” said Mabrey. “And it is in crisis. There are far, far too many people waiting, not even for services, but just for competency restoration.”
The shortage comes in part due to a more than doubling of restoration treatment court orders between 2018 and 2022, according to a 2023 report published by the Colorado Office of Civil and Forensic Mental Health. In 2018, there were 1,220 restoration treatment orders. That number spiked in 2021 to 2,243, and jumped again in 2022 to 2,840. OCFMH predicted a continued rise in restoration orders.
The large increase has led to long stays in the state’s inpatient restoration services. The mean length of stay for an individual undergoing state treatment was roughly 216 days in fiscal year 2022, with a restoration rate of 41% for inpatients. Individuals in outpatient restoration services fared slightly better, with a 50% restoration rate.
A Focus on Treatment Instead of Custody
The wraparound program, if implemented, would likely take some of the burden off of the inpatient system. Each judicial district would be charged with developing a process to identify defendants eligible for community-based competency treatment. If that defendant chooses to participate in the wraparound treatment program, a care coordinator is appointed, and it will be their job to determine during the intake process whether the community-based treatment alternative is appropriate for the individual.
In addition, the care coordinator is required to screen, assess and create an individualized care plan. The individual referred will have their own responsibilities. They will need to enter into a written agreement with Bridges of Colorado, cooperate with the care coordinator in the development of the plan and engage with the coordinator and the services outlined in the care plan.
The plan must take into account the individual’s needs for mental health treatment and care, treatment and care for mental disabilities, substance use disorder intervention and recovery services, housing, transportation, basic needs assistance, employment assistance and health insurance coverage.
After the court appointment of the care coordinator, a review hearing will be required within 182 days. If the court finds the defendant has satisfied the requirements of the care plan, the court is required to dismiss the charges against the defendant.
Eligibility for the program is limited to low-level offenses. Defendants are not eligible for referral if they are charged with class 1, class 2 or class 3 felonies or a felony falling under Section 24-4.1-302 (1) of the Colorado Revised Statutes, with limited exceptions.
A defendant is eligible for the program if they have a history of being found incompetent or if it is agreed the defendant is likely to have certain mental health disorders, and the defendant’s highest charge is a class 1 misdemeanor, level 3 or 4 drug felony, class 5 or 6 felony not described in Section 24-4.1-302(1) or class 4 felony not described in Section 24-4.1-302(1), with limited exceptions. The district attorney on the case will also have the ability to weigh in on whether it’s in the public’s best interest for the defendant to participate in the program or remain in jail for competency restoration.
An Incomplete, but Impactful, Fix
Amabile acknowledged the bill isn’t going to fix every aspect of the system.
“But it is going to make a difference, and it will get people out of jail and into care,” said Amabile. “And that care will prevent them from cycling back into the competency system, and give them and their families the hope of a better life and a better future.”
Over 20 groups and individuals testified in the hearing, with a significant majority supporting the bill.
Maureen Cain, director of legislative policy and external communications at the Office of the Colorado State Public Defender, told the committee OSPD surveyed its offices around the state in 2023 to identify the most problematic issues for indigent clients in the justice system.
“The competency system, and its waitlist, and its lack of resources, is the most significant injustice in the courtrooms across the state, and this was from all jurisdictions,” said Cain.
Cain told the committee the bill wouldn’t address the problem of the waitlist, but it would start to build community. She also told the committee more beds were needed for defendants on the competency restoration waitlist.
Jack Johnson, an attorney at Disability Law Colorado, appeared before the committee in support of HB24-1355. Johnson said people on the waitlist often don’t receive competency restoration services.
“In fact they will timeout and then cycle back into the system to get on the waitlist again,” said Johnson. “That is not only a misuse of our state’s resources, it is a mismanagement of a person in crisis.”
Johnson added the bill was a very important first step in preventing the need for competency restoration services, but he urged the committee to take more steps to address the problem.
Becca Butler-Dines, an attorney in the Denver trial office of OSPD, shared with the committee how diversion works in Denver. Butler-Dines said she’s spent the past two years exclusively representing defendants with significant mental health challenges who are involved in the competency process. She told the story of a client of hers who threatened a community member during an active psychotic break.
“He was booked back into the Denver jail after having a long history of going through competency proceedings,” said Butler-Dines. “But because that individual was able to be transferred to the [Denver District Court competency docket] our team was able to adequately address their untreated mental health needs through community programs and court supervision, and eventually was able to have the case dismissed and see the massive impact that diversion had on their lives.”
Jennifer Turner, the executive director for Bridges of Colorado, said she gave an enthusiastic “yes” when her organization was approached with HB24-1355.
“Bridges serves 35% of this competency population currently, and we are growing,” said Turner. “We are poised to take on this program and get people connected to the care that they need. We are experienced meeting the needs of courts [and] providing legally neutral options that meet the behavioral health best interests of our participants.”
Brad Turner, a staff attorney with the Colorado District Attorney’s Council, told the committee the organization’s position on the bill as introduced was an amend position. He said CDAC worked with OSPD on an amendment that ensured the separation of powers and the DA’s constitutionally protected discretion were respected. He added there were some remaining issues with the bill CDAC would like to address, but said the bill was headed in the right direction with the amendment.
The bill, with the amendment, passed unanimously out of the House Judiciary Committee to the House Appropriations Committee. However, the bill’s $1.7 million price tag in the current fiscal year rises to more than $4 million in the next fiscal year could pose issues as legislators have nearly $200 million less to spend than anticipated.