Colorado court pioneers new approach to mental competency proceedings

People charged with crimes in Colorado who face questions about their mental competency are often forced to wait in jail for months until they can be evaluated at a state hospital — but one court in Larimer County has pioneered a new approach that’s aimed at stabilizing defendants faster and outside of jail.

The Eighth Judicial District, which includes Larimer and Jackson counties, created a special “competency court” — a central place where defendants facing mid-level felony charges are supported by a team of mental health professionals who work together with the judge, defense attorneys and prosecutors to reduce delays and restore defendants to competency.

The court does not accept misdemeanor cases unless the defendant is also facing felony charges, and does not accept the most serious felony cases, like homicide.

The program in Larimer County has been so successful in its first 18 months that courts in Denver and Pueblo launched similar efforts this year, and courts in Colorado Springs and Arapahoe County have plans underway to do so in the next two months, said Denise Cosgrove, who works on competency issues for the state’s Office of Civil and Forensic Mental Health.

“I have really seen a reduction in the number of people who are just stuck in this process, and it’s really increased their ability to be connected to community resources, which gives us better outcomes and greater community safety,” Cosgrove said.

In Colorado’s criminal courts, a defendant must be mentally competent — able to have a rational and factual understanding of the court proceedings and assist their attorneys with their own defense — in order for a case to proceed. When mental competency is in question, the criminal case is put on hold until defendants go through competency evaluations.

If they’re found to be competent, the cases go forward. If they’re found incompetent, defendants must go through a restoration process. Most defendants who are considered incompetent are restored to competency within a few months through mental health treatment, though a small percentage of defendants are restored more slowly or never at all.

The criminal cases against the suspects in the 2021 King Soopers mass shooting in Boulder and the 2015 Planned Parenthood shooting in Colorado Springs have both been stalled in competency proceedings since those attacks.

The competency process is notoriously slow, particularly because defendants who are considered too dangerous to be released into the community are often ordered to undergo an evaluation or treatment at the Colorado Mental Health Institute in Pueblo, which has long wait times. Such defendants are held in jail, often for months, awaiting further treatment.

Defendants can be released from jail and go to outpatient competency evaluations and treatment, though that presents its own challenges: judges must weigh whether the defendant poses a safety threat to the community, and defendants who are homeless or seriously mentally ill sometimes struggle to make their appointments and may end up in more trouble with the law.

Improving communication

That’s where Larimer County’s competency court comes in. Once the question of competency is raised in a case with qualifying felony charges, the case is moved to Chief Judge Susan Blanco’s competency docket, and a team of professionals from outside the court system takes on the defendant as a client, creating a plan so that the defendant, if released from jail, will have housing, transportation, medication, access to treatment and other supports.

“When the judge and district attorney feel like, ‘Hey, there is a team supporting this person in the community,’ they’re more willing to try another option besides just leaving the client in custody,” Cosgrove said.

Ensuring everyone who can be evaluated outside of jail is evaluated outside of jail also frees up spots in Pueblo’s hospital for the most dangerous and seriously ill defendants, Cosgrove added, potentially reducing wait times there as well.

Consolidating competency cases under one judge — instead of having the relatively rare cases spread out among all judges — makes it possible for the team of experts to easily keep track of each defendant, said Gene Klivansky, head of Larimer County’s Competency Services Team.

Cases are heard at the same time and place every Thursday morning. The team, public defenders and prosecutors are all in the same room. If a defendant needs to connect with a particular service, a representative from that service can talk to them immediately, while court is ongoing.

It’s a totally different environment than when Klivansky tried to offer defendants similar support before the creation of competency court. Then, he spent most of his time running from courtroom to courtroom and talking with unfamiliar attorneys. Now, he sees the same attorneys, same experts, same judge, and everyone in the room has a solid grasp of competency procedure and law.

“Communication was a lot harder before than it is now,” Klivansky said.

The competency court team also arranged for a forensic evaluator — a person who performs competency evaluations — to be at the courthouse every Wednesday morning, which makes it easier for the court to schedule evaluations and is more convenient for defendants, who come to a familiar centralized place instead of being required to find their evaluator at other locations. About 90% of people show up for their evaluation appointments at the courthouse, Klivansky said.

The power of competency court is in how it brought together services and experts who already were at work in the community but had never been connected to the court process in a meaningful way, Blanco said.

“It’s amazing how many resources were in our community,” she said. “There was already a group of people who were there to support individuals who are going through what these people are going through. It was worth the ask of, ‘Would you come to court and work with us?’”

Finding successes

Since launching in May 2021, Larimer and Jackson counties’ competency court has served 160 defendants. Ninety-eight of those defendants have left the court, and 62 cases are pending. Typically, a defendant is only seen in competency court while the case is awaiting resolution of competency. Once a defendant is found competent, the case is usually transferred back to its original courtroom and judge, where it proceeds normally through the court process, Blanco said.

Occasionally, a case may be resolved within the competency court docket, particularly if the person cannot be restored to competency and the charges are dismissed, or if the case is transferred to the judicial district’s court for severely mentally ill defendants, which Blanco also heads.

She said some successes in the program stand out, like one man who seriously assaulted a police officer. He was right on the brink of going to prison, she said.

“You are sitting on the bench and you have this important moment where it’s like, ‘Should this person go to prison, or not?’” she said. “And you don’t want to be wrong either way. You don’t want to put someone in the community who isn’t safe, and you don’t want to put someone in prison that potentially you could have done something more to help them in the community, safely.”

This particular defendant had gone through competency court and he’d continued to be supported when he moved into Blanco’s mental health court. He was engaged with services and he wanted to be stable, she said. She ruled against prison.

Now, she said, “they have a job, they’re stable and have been for some time, and successful. …And for someone to be successful, it’s not a small task.”

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