Colorado lawmakers hope to improve the state courts’ long-troubled competency system by creating a program aimed at moving mentally ill criminal defendants out of courtrooms and into mental health care.
The sweeping diversion program would create a pathway for thousands of people who are charged with mid- to low-level crimes to receive mental health care instead of facing criminal prosecution if they are mentally ill or developmentally disabled in such a way that they are likely to be found incompetent to proceed — that is, that they cannot understand the court process or participate in their own defense.
Put forth in HB24-1355 by Democratic Reps. Javier Mabrey of Denver and Judy Amabile of Boulder, the effort would cost $11 million as it ramps up over the next three years and require almost 40 full-time staff when fully operational, according to a fiscal note on the bill.
“Our competency system in Colorado is broken,” Mabrey said during a news conference to announce the bill last week. “…This bill will divert eligible individuals into wraparound community-based services that support their stability and improve health outcomes while decreasing the competency waitlist, improving recidivism rates and making more intelligent and efficient use of state resources.”
Colorado’s competency process is designed to protect the constitutional rights of people who are mentally ill or developmentally disabled by ensuring they are not prosecuted for crimes when they are too sick or too disabled to understand the court process and to help defend themselves.
Criminal prosecutions are paused while such defendants go through treatment aimed at restoring them to competency. If a person is restored, the prosecution continues; if a person can’t recover, the charges must be dismissed.
But the system is overloaded and understaffed, and those who cycle through it often end up warehoused in jails, unable to access needed mental health care and stuck in a process that loops them around in the legal system with few off-ramps to holistic treatment, an investigation by The Denver Post found last year.
Mentally ill defendants are often forced to spend months in jail before they can finally receive competency treatment, which is narrowly focused on improving their legal comprehension and is not holistic mental health care.
“It is a human rights crisis in Colorado,” Amabile said. “We don’t actually try to treat people who are on the competency list, we just do this process so we can sausage them through the criminal justice system back over and over and over again.”
Connecting participants to care
At the end of February, 333 people were waiting in Colorado jails for competency treatment, with an average wait time longer than three months. The longest wait stretched more than a year, according to a March 15 report by the Colorado Department of Human Services, which was sued in 2011 on the grounds the state was violating people’s constitutional rights by holding them in jail so long without help.
In the last few years, the Department of Human Services has secured $249 million in funding for initiatives aimed at reducing the competency backlog, court records in the lawsuit show. Gov. Jared Polis also asked lawmakers to approve another $68 million in the 2024-2025 state budget for competency.
The cycle of competency
The Denver Post examined why hundreds of Coloradans repeatedly cycle through the state courts’ competency process, caught in the failures of both the criminal justice and mental health systems.
The bill aims to reduce the competency waitlist by diverting incompetent defendants out of the criminal justice system altogether. Under the proposal, in criminal cases where prosecutors and defense attorneys agree that the defendant’s competency is in question, they can opt to put the criminal prosecution on hold and instead send the defendant into a six-month program aimed at stabilizing the individual.
The bill would create the Bridges Wraparound Care Program within the Office of the Statewide Behavioral Health Court Liaison to connect participants with comprehensive mental health care during the six-month span. The office would provide some direct help, but would rely heavily on existing community service providers and work as a liaison to coordinate that care and craft an individualized plan for each defendant.
The Bridges workers might drive a participant to an appointment or take the client to a pharmacy to get prescriptions filled, Amabile said. They might help the participant find housing or intervene on the participants’ behalf if a conflict arises with a landlord or neighbor. They won’t directly provide mental health care, Amabile said, but will connect participants to such care.
If the defendant follows the parameters of the treatment regimen for six months, then the charges against the defendant would be dismissed, the bill proposes. Judges also would have the option to extend the program for an additional three months. Defendants who don’t comply with treatment could be brought back to jail and again face criminal prosecution, the bill notes.
Defendants would have to agree to participate in the program and people facing the most serious crimes — Class 1, 2 or 3 felonies and a handful of other offenses — would generally not be eligible for the diversion program, according to the bill.
“The way of the future”
Ideally, people would not need to be arrested in order to access care, but the proposed program aims to address the reality that the state’s jails and courtrooms have become Colorado’s de facto mental health safety net, said James Karbach, director of legislative policy for the Office of the Colorado State Public Defender.
The state needs a stronger community mental health care system, and better interventions and options for people with mental illness before police are called, he said.
“We should avoid the criminal legal system altogether,” he said. “And we can do better as a state. But in the short-term, my clients are going to be arrested, and we need a better option for them now.”
Amabile acknowledged that the bill won’t increase the capacity of the state’s overtaxed mental health care system, but said she doesn’t expect the competency diversion program to bring an influx of new patients.
“These people are already patients, for the most part,” she said.
The proposal requires the diversion program to be up and running in the state’s largest judicial districts by April 2025, and then by October 2025 and July 2026 for medium and smaller-sized districts. Legislative staff estimated defendants in about 5,600 criminal cases across the state will be eligible to participate in the diversion program. It estimates defendants in about 3,400 cases will actually take part in the program each year.
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“This approach is the way of the future,” Denver District Attorney Beth McCann said at a House Judiciary committee meeting last week. “We need to get these folks with significant mental health issues into the public health system, not the criminal justice system.”
The bill has received support from advocates, mental health providers, people who have gone through the competency process or watched family members go through it, and the Office of the Colorado State Public Defender. A spokeswoman for the Department of Human Services, Jordan Saenz, said the agency is neutral on the bill.
“We look forward to continuing to collaborate on legislation that will help clients who need mental health services across the state,” she said in an email.
No one spoke in opposition to the bill during last week’s hearing, though the Colorado District Attorneys’ Council sought amendments.
“We’re interested in finding responsible alternatives for these folks who are likely to be found incompetent, but we always have to keep an eye toward public safety when we enter into these types of alternatives,” said Tom Raynes, executive director of the council.
The bill passed out of the House Judiciary committee unanimously Tuesday — with an amendment to strengthen the discretion of the district attorneys in the process — and is next headed to the Committee on Appropriations.
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