An Interview with Catherine Strode
Disability advocates and the state of Colorado reached agreement last month in a legal battle over the long wait times for court-ordered mental health competency proceedings. A Consent Decree was entered into as a result of a lawsuit against the state by Disability Law Colorado. A bill introduced this Session creates alignment with the Consent Decree’s competency proceeding requirements and helps the state avoid violations and penalties.
Entitled, “Actions Related to Competency To Proceed,” Senate Bill 19-223, is a revised version of a competency bill that failed to pass in the 2018 Session. The bill’s sponsor, State Representative Mike Weissman, says the 2019 version has bipartisan support and has been worked on extensively over the past year. He is optimistic that it will win passage this year.
Why is this bill important this year?
It is important for all the same reasons the predecessor bill last year was important. Bringing criminal proceedings against someone is one of the most fundamental exercises of power we can do in society. It has to be done fairly and in accordance with the Constitution. The Constitution requires a finding of competency before someone may continue to be involved in criminal proceedings. Where there is not competency, it is not constitutional to proceed. The state has been in a challenging place about those competency determinations for a long time. It is even more important to resolve this issue and pass this bill this year because a federal court has now become involved. We have a Consent Decree that is telling us to get our house in order.
What was the bill’s history in the 2018 Session?
In the 2018 legislative session, there were four bills to address the handling of cases where competency is at issue in Colorado courts. Senate Bills (“SB”) 249, 250, and 251 became law and are already underway. The biggest of those four bills was SB 252. That is the most direct predecessor to SB 223 this year. There are some key differences. There were some good things and some bad things about SB 252. The good things included ways to shorten timeframes and cause competency evaluations to be handled more efficiently. Also, one of the good aspects (and this is preserved in SB 223) was the idea that after a certain amount of time has gone by and somebody is still not restored to competency, we should terminate criminal proceedings. The problem with the prior bill was the idea of providing competency restoration treatments in a jail setting. The setting in which treatment is delivered matters a great deal. There is not good research supporting jail restoration. It is fundamentally not a clinical place designed for delivery of any kind of health care related service. That aspect, coupled with some of the time frames, was the reason the bill did not become law.
Why is what this bill proposes a better option?
There’s a strong preference throughout the bill for handling competency issues in the community. Community treatment and community restoration is appropriate because those can be provided in correct therapeutic settings. It is not medically right to do this sort of thing in a jail setting. Also, the time period (as specified in the bill) in which restoration services can be provided before a determination is made whether to continue the process or not is relatively minimal. When necessary, there are inpatient beds as a backstop. The state has a limited number of inpatient beds. Those are to be used for the most needful cases. The state has invested a significant amount of money over the past couple of years in bringing new competency beds and new personnel. Even so, there are never going to be enough beds (and there do not need to be) to address all of these questions in an intensive inpatient setting.
This bill contains a tiered system. Can you explain that?
What you’re referring to is the set of definitions in the bill about Tier One and Tier Two defendants. There are a lot of people in the criminal justice system about whom a competency question is raised. Being in a state of competency to proceed does not mean in a state of perfect mental or behavioral health. Competency is a legal term but it is not the same as full health. The bill talks about Tier One and Tier Two. Tier One are folks with heightened risk and Tier Two is everybody else. The bill attempts to set up ways in which Tier One defendants can be seen and evaluated more quickly.
Who is this bill aimed at protecting?
It is aimed at protecting folks with a mental illness, intellectual or developmental disability, a history of substance abuse, people who have intersected with the criminal justice system about whom a question of competency to proceed is raised. There is not necessarily one specific diagnosis. The key point of constitutional law is if somebody is not aware enough to be able to assist in their own defense when criminal proceedings are in play, then we must not proceed with a criminal process against that person. The way the criminal proceedings get started is an interaction with a law enforcement officer. Somebody witnesses an attempted robbery, to use a simple example. But, frankly, sometimes those interactions are not criminal in nature. Somebody may just act out in some way that really does not have criminal intent. They get pulled into the criminal process. Where there is criminal intent, that is where the purpose of criminal proceedings is to protect public safety. Folks who may have those interactions on the front end of the system with law enforcement but are not doing so out of ill intent, that needs to be sorted out. Timely competency determinations are a part of that.
Catherine Strode is Advocacy Denver’s Communications and Policy Specialist. She holds a Masters degree in Public Administration with an emphasis in Health Care Policy. Catherine publishes Policy Perspective, featuring interviews with state policy makers on issues that affect the work and mission of Advocacy Denver.