March 2015

State Rep. Paul Rosenthal (D-9) Sponsor, HB15-1025

State Rep. Terri Carver (D-20)

State Representative Paul Rosenthal (D-9):

How did you come to bring this bill?

“I’m on the Oversight Committee to the Task Force on Mental Health and the Criminal Juvenile Justice Systems, a task force that has been set up to make sure the legislature regularly looks into mental health issues in the criminal justice and juvenile justice systems. As much as I’m carrying this bill, it is not my bill. This bill is from the task force, a few dozen professionals who are not naïve. These people work with juveniles every day, or, they’re mental health professionals. They are experts. In Colorado what we have is an adult standard for dealing with youth to ascertain whether they are competent to stand trial. What this committee looked into is what we do to create a juvenile standard, one you would only apply to juveniles under eighteen.”

Why is this bill important?

“This bill is important because fundamentally, juveniles are not adults. This is a fundamental, philosophical, and now legal precedent. The US Supreme Court has said this over decades now. We do not execute juveniles. According to the Supreme Court, we do not sentence them to mandatory life sentences. We fundamentally understand that their brain development is very different; their brain is not yet fully developed. They do not understand long-term thinking; they’re very rash. They don’t think about long-term consequences. If you combine that potentially with drugs or alcohol, and these kids commit offenses, it’s obvious that we need to treat them differently in the juvenile justice system. If juveniles are not adults, then they should not have the same standard for competency to proceed to trial.”

What is the opposition to the juvenile competency issue?

I think the district attorneys’ fear is that many juveniles are going to be considered for a mental health evaluation with the goal of not having a trial. I’m really astounded by that kind of assertion because it’s not true. This isn’t very many. There was one evaluator and she reviewed 50 cases, three of which could probably fit under the category of lack of mental capacity. It’s not just defense attorneys who raise competency. Judges do it as well. Even district attorneys raise the competency issue. If I were a judge and either the defense or prosecution were always raising this, I would be really upset and I would say to that counsel, ‘What are you doing? You are now ruining your relationship with the court; you are detracting from your reputation as an attorney. I suggest you make sure you are asking for these competency evaluations based on the facts that are brought up in this bill, based on a developmental disability, a mental disability, or a lack of mental capacity.’”

What do you think is the impact on juveniles without this bill’s passage?

“The impact is there will be some juveniles who should not stand trial, who will. I’m fully 100 per cent in support of making sure we hold youth accountable for what they do. That is the whole point of the juvenile justice system. However, if they do not have the mental capacity, or ability to understand what is going on in the courtroom, or understand why they’re there, or how to work with their attorney, then how can they make decisions that are potentially going to affect the rest of their life?”

Does this issue end with the failure of the bill’s passage?

“No not at all. Today there is a greater awareness of how mental health is misunderstood, misdiagnosed, and how we need to do much more to ensure that people get the help they need, particularly children, who are the most vulnerable. This bill is in that vein, in that spirit. My hope is that science will prevail, that people will say this is the best interest of the children. Now is the time when we really need to make sure that kids are treated differently. This is the sort of thing where you just have to continue. It is the right thing to do for the juvenile justice system. It is the right thing to do for the child in the system, to make sure that we’re doing justice.”

State Representative Terri Carver (D-20):

Do you think creating a separate competency standard for juveniles is a good goal?

“I think the District Attorneys’ Council clearly set out that the process for dealing with juveniles is different from the adults’. The process they currently have, taking the age of the juvenile into account, the level of maturity, all of that, is dealt with currently in the juvenile justice system. I think the concern is whether that is improved by the bill or if the bill would, in fact, result in less treatment, less diversionary opportunities for the juveniles. Their concern is it would not help the juveniles because once incompetency proceedings are set in motion, the opportunities for diversion programs and all other options that are currently being used have to stop pending the outcome of the competency proceeding. The core of their concern is it would end up having a negative impact on juveniles in the ability to get them to the right program and to deal with their issues. One particular case stood out in the District Attorney’s testimony. He talked about a young person who had been accused of a crime and the competency proceeding was triggered. The procedure is still ongoing after nine months and the treatment options that would have been available to this young person are not available to him because he’s still within the competency procedure.”

What other testimony caused you to oppose the bill?

“The District Attorney’s Council presented compelling testimony that unintended consequences of the bill would be to greatly expand the number of incompetency proceedings. Under the current Colorado law, developmental disabilities as well as mental illness are both bases for an incompetency proceeding. That will remain in effect. Representative Rosenthal’s bill would expand the bases for going forward with an incompetency proceeding to ‘mental capacity’ that is written very broadly to include: courtroom behavior, how they testify, their factual understanding of different legal procedures. That’s the basis of the District Attorneys saying if you now make ‘mental capacity’ a basis for triggering competency proceedings, it will expand the number of proceedings significantly. I think the District Attorneys made a very compelling case on why this particular approach to changing the juvenile competency procedure is not going to have a positive effect on juveniles or on the system.”

How would your amendment change the bill?

“My amendment deletes the new definition of ‘mental capacity’ which will delay getting the juveniles to appropriate diversion programs and treatment. The District Attorney’s Council has said it creates a conundrum for those who operate in the juvenile justice system because it bases a determination of incompetency, which has one definition, on the lack of ‘mental capacity’ when ‘mental capacity’ is defined in another way. They say it’s circular and is going to create unintended consequences. We had extensive testimony in front of the committee on both sides, both proponents and opponents, and the number of District Attorney’s Council who have personally had extensive experience in the juvenile justice process testified, I think pretty convincingly, on why this particular bill and its approach to competency will not have a positive effect on how we deal with all the issues that these young folks have in the system. That’s part of the issue were trying to wrestle with: how do we make sure if we change the law from what it currently is that it’s going to result in a positive impact for the young people that are in the system? That’s my concern.”

Do you foresee some kind of a compromise in the future which will result in a different standard for juveniles and adults?

“I think we will continue the conversation about how to improve the juvenile justice system and the support systems we give to juveniles. I think the task force is wanting to look at ways in which the level of maturity of the juveniles is taken into account. I think that is a valid area we need to look at because each juvenile needs to be treated as an individual. That’s where I hope the conversation goes. How do we make changes to improve those services in treating each child as an individual, in their particular circumstance, and what they need to get to a better place? I’m open to further discussion in this area. I think this particular approach is not the right approach.”