From The Desk of Pamela Bisceglia
“Jane Doe” had charges brought against her January 2016 and June 2017. She was released on bail. A competency evaluation was ordered and in December 2017, it was determined she was not competent. She was ordered to participate in a competency restoration program. Competency restoration is the process used when an individual is found by a court to be incompetent to stand trial. Simply put, “Jane Doe” must be restored to competency before the legal process can continue. In November 2018, it was determined that competency could not be restored. “Jane Doe” is labeled as having a dual diagnosis: an intellectual and developmental disability and mental health issues. On July 9, 2019, “Jane Doe” was arrested and charged with aggravated assault. On day three of her incarceration, “Jane Doe” was arraigned. The judge was privy to: her history, the list of her past charges, her competency evaluations and her return to the community. Now, because she is charged with aggravated assault, the court will no longer entertain her return to the community.
During the 2018 legislative session, four bills were introduced to address the handling of cases where competency is at issue in Colorado courts. Three of those passed. Senate Bill 18-249, Redirection Criminal Justice Behavioral Heath, requires the establishment of alternative programs in the criminal justice system to divert individuals with a mental health condition to community treatment. Senate Bill 18-250, Jail–based Behavioral Health Services, allows the correctional treatment cash fund to be used to provide adequate staff to: complete competency and behavioral health screenings, prescribe psychiatric medications, provide mental health counseling, and train jail staff. The training is designed to educate jail staff on behavioral health disorders and best practices in working with individuals with mental health, substance use, and co-occurring disorders. House Bill 18-251 created the Statewide Behavioral Health Court Liaison Program in the Judicial Department’s Office of the State Court Administrator. This program was created to identify local behavioral health professionals to serve as court liaisons in each judicial district and to facilitate communication and collaboration between the judicial and behavioral health systems.
On March 15, 2019, Disability Law Colorado announced that an agreement had been reached in a long-standing legal battle over extended waits for court-ordered mental health evaluations and competency restoration. The consent decree filed ends eight years of legal disputes between the Colorado Department of Human Services and Disability Law Colorado. It will set new deadlines and create a triage system. A representative from Disability Law Colorado said the consent decree will “ensure sweeping reforms to Colorado’s broken competency system.”
On April 8, 2019, Governor Jared Polis directed the Colorado Department of Human Services to spearhead Colorado’s Behavioral Health Task Force. The mission of the task force is to evaluate and determine the roadmap to improve the current behavioral health system in the state. This includes developing Colorado’s “Behavioral Health Blueprint” by June 2020. It is anticipated that the implementation of these recommendations will start in July of 2020. The task force is comprised of 25 members. There are also three subcommittees with 25 members each. One subcommittee is focusing on Long-Term Competency. Consistent with a recent consent decree entered into by the Colorado Department of Human Services and Disability Law Colorado, this subcommittee will develop a comprehensive plan for individuals in the criminal justice system who have been identified as having competency issues; and will develop future solutions to increase community interventions as a means of reducing demand on forensic mental health results.
On May 20, 2019, Senate Bill 19-223 was passed. The timeline for implementing some of the more important features of Senate Bill 2019-223 is July of 2020. Colorado revised statute shortens the timeframe for the completion of competency evaluations. The statute defines ‘inpatient program’ to mean either in a hospital, or unfortunately, in a full-time, jail-based restoration program. Colorado’s jail-based competency program, Restoring Individuals Safely and Effectively (RISE), requires that patients be separated from the general population at all times and be in a “therapeutic setting.”
On Day 76 of jail confinement, “Jane Doe” was transported to the Colorado Mental Health Institute at Pueblo for a competency evaluation. Upon completion of the evaluation, she was transported back to the Denver jail. The evaluation confirmed she is incompetent to proceed. Incompetent to proceed means, as a result of an intellectual disability and co-occurring mental disability, “Jane Doe” does not have sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding in order to assist in the defense. Nor, as a result of her mental disability and intellectual disability, does “Jane Doe” have a rational and factual understanding of the criminal proceedings. On Days 3, 76, and 120, the system has failed to determine whether restoration services will be provided, in a community setting, a state hospital, or a jail-based program. Today “Jane Doe” is still in jail and not getting the treatment she needs.
We are certain that most individuals with intellectual and developmental disabilities and with serious mental health issues can be treated in the community. “Jane Doe” falls into a second category of these individuals. That is: it has been determined she presents a danger to others. However, Colorado state mental health institutions are at capacity and do not have the beds, staff, therapy providers and/or services to accommodate these individuals. The Denver jail is able to offer “Jane Doe” a bed. Yet AdvocacyDenver is questioning if the Denver jail has the appropriately trained staff, the tools and/or programming specifically designed for an individual with a dual diagnosis. The 2020 timeline provides Colorado Human Services an opportunity to define best practices for increasing the number of beds, growing the number of trained professionals, and (maybe, just maybe) earmarking the funding needed to implement the plan. For “Jane Doe”, and others like her, this is a human rights issue. “Jane Doe” has an intellectual disability which cannot be restored. “Jane Doe” spending her days in jail, and, not getting the treatment she needs, is inhumane.