Colorado’s competency process keeps mentally ill in court cycle

Tucked along a dirt path in a memorial garden not far from Interstate 225 in Aurora, a flat red brick is carved with just one date: 12/27/1990, the day Patrick Holten came into the world.

His mother bought the memorial brick four years ago because she was sure her mentally ill son would be dead in a matter of months.

There was the time she found his empty tent floating in floodwaters and spent all night driving around Aurora looking for him, when her husband walked up a drainpipe searching for Patrick’s body. The time she discovered him buried in snow and he didn’t answer when she called his name, so she nudged his foot, thought he was gone. The time she found him in a hospital emergency room, covered in blood after someone beat him.

“Sometimes I’d want to just go stand in the middle of the street and scream, ‘Somebody help me!’” Diane Holten said. “Because I couldn’t find help. I couldn’t find any help.”

No date of death is engraved on Patrick Holten’s memorial brick. He’s still alive, in jail, and one of hundreds of people in Colorado who are cycling through the state courts’ competency process over and over again, caught in the failures of both the criminal justice and mental health systems.

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 so their cases can continue.

But the long-troubled system is overcrowded and understaffed, and the state’s wider mental health infrastructure is so weak that people who need help instead end up in Colorado’s criminal justice system and are increasingly funneled into the competency process. Orders for competency treatment nearly tripled between the 2018 and 2023 fiscal years, and the competency process can stall criminal cases for months and even years.

In a two-part series this week, The Denver Post will examine why hundreds of people repeat the competency process again and again, even when authorities know treatment is unlikely to restore them to competency, and how the criminal justice system acts as a ill-fitting stopgap for the state’s inadequate mental health system.

In just the last six years, at least 513 people have gone through competency restoration treatment more than once in separate criminal cases, according to the Office of Civil and Forensic Mental Health, which runs Colorado’s two state mental health hospitals. That count includes only people who repeated competency treatment across subsequent years, and doesn’t include people who repeated competency treatment multiple times in one year, in one overarching criminal case, or who had multiple simultaneous criminal cases in which competency was raised.

Nearly 80% of that group, 407 people, repeated competency treatment despite a finding in their initial competency case that they were “permanently incompetent to proceed” — that is, evaluators determined they likely could not be made competent through treatment in the foreseeable future.

Those 407 people accounted for 1,583 competency treatment cases since 2018, or 14% of the state’s total competency treatment cases between 2018 and October 2023.

Defendants in this group repeated treatment between two and eight times during that six-year span, and only 31 of those 407 defendants were ever found competent after previously being found permanently incompetent, according to the office.

Among the repeat patients found permanently incompetent, 126 people had primary diagnoses that aren’t considered behavioral or mental health conditions; instead, they’re living with conditions like dementia, cognitive defects or brain disorders that are largely unlikely to respond to treatment.

“We know if someone has dementia they’re not going to get better,” said Leora Joseph, director of the Office of Civil and Forensic Mental Health. “…What’s the point of having someone go through the competency system when they can’t become competent?”

Wait times for treatment “wildly out of compliance”

A broken ankle marks the moment Patrick Holten’s life began to derail.

He was 18, freshly graduated from Aurora’s Grandview High School and obsessed with parkour, hoping to land sponsorships and take on the sport as a career. But all that ended when he got hurt.

“He was never the same,” Diane Holten said.

Over the next decade, Patrick unraveled. He abused drugs, starting with over-the-counter cough medications and moving into other substances. He was diagnosed with a number of conditions, including schizophrenia, substance-induced psychotic disorder, bipolar disorder and depression, his medical records show. He suffered a traumatic brain injury in a fall. He was in and out of jails, hospitals, homelessness and recovery homes.

Diane Holten and her husband Charles kept tabs on their son as best they could over the years. When he became too violent to live with them, they paid for a studio apartment, hotel rooms, and eventually a tent and sleeping bag, a cellphone.

“We would never walk away from him,” Diane Holten said. “We are still holding out hope for him.”

Patrick held a machete to his mother’s throat on Christmas Day in 2014, an incident he went to jail for until he was found incompetent to proceed.

The legal issue of competency comes up in only about 2% of Colorado’s criminal cases, and it’s raised when attorneys or judges become concerned that a mentally ill or developmentally disabled defendant is unable to understand the court process.

A competency evaluation centers on two prongs — whether defendants have a factual and rational understanding of the proceedings, and whether defendants are able to consult with their attorneys and assist in their own defenses. To determine whether a person is mentally competent to stand trial, evaluators typically interview the person and consider the defendant’s history, mental health diagnoses and the specifics of the criminal case.

If a defendant is found to be incompetent, the criminal case is put on hold until the person can be restored to competency. Restoration treatment, which often includes both medication and education, is not holistic mental health care, Joseph said. The classes focus on teaching the basics of the court system, according to an adult workbook provided to The Post by the nonprofit Mental Health Colorado, which received copies from the Office of Civil and Forensic Mental Health in 2022.

“Identifying and restoring people, we know how to do that,” said Steve Leifman, an associate administrative judge of Miami-Dade County Court who has led competency-related reforms in Florida since the early 2000s. “It doesn’t do much. It does nothing to improve public safety, it doesn’t do anything to help people recover, but it is satisfying a constitutional obligation for people the government is pursuing charges on.”

If, over some period of time, the defendant can’t be restored, a judge can find them permanently incompetent. If that happens, the criminal case must be dismissed. Competency refers only to a defendant’s current mental capacity and is distinct from an insanity defense, which focuses on the defendant’s mental state at the time of the alleged crime.

Colorado has for years struggled to handle competency cases in a timely manner.

Nonprofit corporation Disability Law Colorado sued the Department of Human Services in 2011 on the grounds that the state was violating people’s constitutional rights by holding them in jail for weeks while they awaited treatment. That led to a court-ordered reform process with ongoing independent oversight by court-appointed special masters, experts who keep tabs on the reform effort and report back to the court. For a short time before the COVID-19 pandemic, the waitlist for treatment decreased.

That progress ended with the pandemic and reversed: The number of people waiting in jail for inpatient competency restoration treatment is now eight times higher than it was in 2011. At the end of October, 427 people were waiting in Colorado jails for inpatient competency restoration treatment, according to a Nov. 28 report from the special masters, who file quarterly updates in the court case.

By law, the most-sick defendants are supposed to be admitted for treatment within seven days, and less-ill defendants within 28 days. But between August and October, the most-sick defendants waited an average of four months — 128 days — to be admitted, and less-ill defendants waited nearly five months. Those are the longest average waits on record and are “wildly out of compliance,” according to the special masters’ report.

Patrick Holten spent nine months in the Denver jail after he was arrested on a menacing charge in June 2021, when a neighbor said Patrick flashed a knife and yelled at him, according to an affidavit. In jail, he drank so much water that he got sick, and when nursing staff at a hospital later limited his water, he tried to drink from a urinal instead, his medical records show.

In December 2021, a deputy shut a cell door on Patrick’s hand, crushing the bones in two of his fingers and inflicting a deep cut that required stitches. The deputy, who later said he assumed “the door hinge clipped (Patrick’s) hand,” kept on with his rounds after the incident, and it wasn’t until another inmate noticed Patrick’s distress that deputies opened the cell and called for an ambulance because of the large amount of blood, jail records show.

“The times he’s in the jail, it’s bad,” Diane Holten said.

Defendants who are in jail for misdemeanors and low-level felonies and are on the waitlist for competency treatment can only be kept in custody for a limited amount of time: 70% of the maximum possible sentence on the most serious charge for misdemeanors, and 50% of the maximum possible sentence on the most serious charge for felonies.

A bill that will be considered during Colorado’s 2024 legislative session would cut those times  — defendants awaiting competency treatment would be released within seven days for a petty or traffic offense, between 90 days and six months for misdemeanor charges, and between six months and two years for low-level felonies. Serious felonies are excepted.

The state Department of Human Services blames several factors for its continued failure to provide timely inpatient competency treatment, including staffing shortages, a shortage of available beds and wider failures in the state’s mental health system.

During the last six years, the number of defendants judges ordered into the competency process rose significantly. There were 1,686 orders for competency evaluations in the 2018 fiscal year, compared to 2,634 in the 2023 fiscal year, according to the department’s September Long-Term Comprehensive and Cohesive Competency Plan. In that same time frame, orders for competency treatment rose from 1,054 to 2,737, a 160% increase.

There are just over 400 beds available for inpatient competency treatment across state mental health hospitals, private hospitals and jail-based units, according to the special masters’ report. Each of those beds can serve just over three people a year, which means Colorado has the capacity to provide inpatient restoration treatment to roughly 1,300 people every year. In 2022, 1,512 people were ordered into inpatient restoration treatment.

During the pandemic, as many as 80 competency beds at the state hospital in Pueblo sat empty for more than a year because there were not enough people to staff the units, according to the special masters’ report.

That staffing shortage has begun to ease. The department raised nurses’ salaries in July, and since then the Colorado Mental Health Hospital in Fort Logan has hired enough people to open a new 22-bed competency unit. Still, more than 50 beds remain unused in the Pueblo state hospital, according to the special masters’ report.

For the first time since the pandemic, the waitlist plateaued this last quarter, with the average number of jailed people awaiting inpatient restoration dropping from 456 to 427, according to the special masters’ report.

In the last few years, the Department of Human Services has secured $249 million in funding for initiatives aimed at reducing the competency backlog by boosting staffing, increasing bed capacity, preventing people with mental illnesses from entering the criminal justice system and providing additional psychiatric services in certain large jails, according to the special masters’ report. Gov. Jared Polis also asked lawmakers to approve another $75 million in the 2024-2025 state budget, and the department is seeking an additional $70 million in the 2025-2026 cycle.

The Department of Human Services projects that it will be able to bring the waitlist to zero by the fall of 2026 if it can meet several goals, including getting patients out the door faster and shifting some patients currently in the state’s mental health hospitals into newly-created Mental Health Transitional Living Homes, which will open up more hospital beds for competency patients.

But the special masters noted that the situation remains “dire,” and the Department of Human Services cautioned that broad reform of the state’s wider mental health system is needed.

“A threshold he has never reached”

On the Fourth of July, a 21-year-old intellectually disabled man was playing a board game in a care home in southeast of Colorado Springs when his caretaker told him it was time to stop playing and clean up.

Robby stands 5-feet-10-inches tall and tops 220 pounds, but his mind is that of a 6-year-old. He has an IQ of 42, is autistic and struggles with impulse control. His parents spoke with The Post on the condition that their son be identified only by his middle name to protect his privacy.

On that summer afternoon, Robby didn’t want to stop playing, and he lashed out. He bit his caretaker’s finger, punched her in the face, put his hands on her neck, threw a pitcher of juice at her and broke a window. She locked herself in another room and called the El Paso County Sheriff’s Office. She and her supervisor didn’t want to press charges, court records show, but a deputy put Robby in handcuffs and took him to jail anyway on charges of misdemeanor assault and harassment.

Robby has faced low-level criminal charges many times across Colorado. He picked up two other cases in El Paso County this summer alone for similar behavior at the care home, a mobile home without air conditioning that ran out of Robby’s medication before one arrest.

In every case since he was 13, Robby has been found incompetent to proceed and had his charges dismissed.

“The probability of him ever attaining competency is essentially zero,” a psychologist wrote in a 2022 report reviewed by The Post.

And yet in Robby’s three misdemeanor cases this summer, prosecutors in El Paso County refused to accept past findings of incompetency from 2015 and 2022, and instead pressed forward with the latest criminal charges, demanding that Robby go through the competency evaluation process again because he’d left a “wake of victims” in his path and had not been found incompetent specifically in El Paso County, according to an email from a supervisor in the district attorney’s office reviewed by The Post.

“It’s just a vicious cycle,” said Kellee Colton, Robby’s mother.

Competency is a case-specific designation — a finding that is meant to capture the current state of a defendant’s capabilities — and there’s no obligation for judges or prosecutors to accept a prior finding of permanent incompetence in a new criminal case. But there’s nothing that says judges or prosecutors can’t, either, and some jurisdictions will proactively accept such findings once the court system becomes aware of the prior designation.

Over the years, Robby’s parents have spent thousands of dollars to defend him in criminal cases, and that’s with his attorney, Doug Cohen, billing a significantly reduced rate. Every time Robby spends a night in jail or attends court, it disrupts his daily routine — the very structure that helps to tamper his physical aggression.

“I find it abusive,” Cohen said. “I find it ignorant. What does the justice system, what do the players in the system, the district attorney, the judges, expect to achieve by submitting someone who is unrestorable and has an extremely low IQ to court hearings? What does anyone get out of that?”

In the last six years, a full 30% of people who repeated the competency process in Colorado after being found permanently incompetent to proceed had primary diagnoses that were not mental or behavioral health conditions, according to the Office of Civil and Forensic Mental Health. People in this group were diagnosed with conditions like Alzheimer’s disease or dementia, cognitive deficits, attention-deficit hyperactivity disorder or conduct disorders, the office said.

“If someone is legally blind, or has some other physical impairment that is static, if they’re legally blind in Denver, they’re automatically legally blind in Pueblo, El Paso, Adams,” Cohen said. “So why are some DAs and some judges seemingly so reluctant to make the same logical finding when it comes to someone who is intellectually disabled instead of physically disabled?”

In Robby’s cases, the new evaluator in November made the same findings as every evaluator prior: Robby was incompetent to proceed and could not be restored “to a threshold he has never reached,” the report reads. All three cases against Robby were dismissed over the objection of prosecutors, who argued in court that Robby presented a threat to public safety.

“I don’t know what the answer is, Mr. Cohen, because our system can’t help (Robby),” El Paso County Judge Shannon Gerhart said during a Nov. 17 hearing. “The way we are set up is severely lacking. … It’s just — this is a serious flaw in our system.”

Asked about Robby’s cases, which were sealed after the dismissals, Fourth Judicial District Attorney’s Office spokeswoman Kate Singh said only that, “No such records exist.” Generally, she said, prosecutors are “obligated to hold criminals accountable for their actions.”

“Evaluations can be re-ordered with every offense — and should be — as we know, in some cases, defendants have been restored,” she said. “That information is owed to victims.”

Creating a longer-term designation of permanent incompetence that is valid across criminal cases could help reduce the number of people who repeatedly cycle through, said Pamela Bisceglia, executive director of AdvocacyDenver, a nonprofit civil rights advocacy organization.

“That makes sense, particularly when you are talking about people where there is a neurological diagnosis versus a person where it’s, ‘I stopped taking my meds and if I take my meds my behavior is going to look different,’” she said. “It might offer some relief to the system if that person doesn’t keep going through that door over and over.”

A bill that will be considered in the next legislative session would require the Department of Human Services to look for and promptly provide any past competency evaluations to prosecutors and defense attorneys when a defendant raises competency or is found incompetent to proceed.

The bill would require judges to hold a hearing within 35 days about whether a defendant can be restored if an evaluator finds that the defendant suffers from an intellectual or developmental disability, a brain disease or a traumatic brain injury. The proposed legislation also establishes a presumption that the defendant is incompetent and unlikely to be restored in such circumstances.

Generally, prosecutors consider a defendant’s criminal history, the nature of the charges, the victims’ positions, and whether prosecutors agree with an evaluation’s findings when considering whether to pursue or dismiss a case where competency has been raised, Boulder County District Attorney Michael Dougherty said.

“On one level, just as a person, I feel really bad for individuals who are cycling in and out of the process, but the answer can’t be to simply stop prosecuting them for crimes they commit, especially violent crimes,” he said. “But we do need to do a much better job intervening when it’s so obvious a person needs care.”

Rocky path to civil commitment

At the very end of a very long day in Denver District Court, Judge Karen Brody called the case of a 19-year-old man who had been found permanently incompetent to proceed.

Luke, identified by his middle name to protect his privacy, faced charges in two cases. In 2020, when he was 16, he was accused of raping a woman and was charged as an adult. In a second case, in 2022, he was accused of unintentionally shooting a teenager as the two hung out together in Denver. The victim told police that Luke was messing with the gun and “thinking he was ‘cool’” when he fired, according to an affidavit.

Luke’s defense team raised the issue of competency in 2020, and subsequent evaluations found Luke had a lower-than-normal IQ, a mild intellectual disability and borderline intellectual functioning, court records show. He was consistently found incompetent to proceed over the next three years.

“He doesn’t suffer from some sort of psychiatric illness that can be cured; he has a brain disorder,” said Michael Juba, Luke’s attorney.

Brody found Luke to be permanently incompetent to proceed and dismissed both of the criminal cases against him on Oct. 5, court records show. She delayed the dismissal for 21 days in order to give time for Luke to be connected to mental health treatment and put under a civil certification — that is, to force him to undergo involuntary mental health treatment.

But Luke doesn’t meet the state’s criteria to be civilly committed, which Brody in court said was “mind-boggling.”

“Candidly, I followed what I thought was the law against every grain inside of me on releasing (Luke),” she said during an Oct. 26 hearing. “That’s how scared I was. This is a job where I have to take my knocks, but I’m extremely concerned about releasing him into the community.”

In order for a person to be certified for a short- or long-term commitment — involuntary mental health care — they must suffer from a mental health disorder, and, as a result of that disorder, be either a danger to themselves or others or be gravely disabled.

Luke hasn’t been diagnosed with a mental health disorder, but rather lives with an intellectual disability. State law says that an intellectual or developmental disability alone is not enough to qualify a person for a civil commitment. There’s an entirely separate process for such people to receive care, said Daniel Horwitz, assistant city attorney in the Denver City Attorney’s Office, which handles civil commitments.

The certification system is designed to stabilize patients until they are well enough to voluntarily accept care, at which point they are discharged, he said. The process for people with intellectual disabilities is purposely set up to be less restrictive and provide longer-term support.

“That can be very confusing for the criminal courts, because a judge working primarily in the criminal area, if they don’t have a background with mental health law… they may be saying, ‘This person is a danger, they have an intellectual or developmental disability — initiate proceedings for civil certification.’ And the answer is, ‘Under the law we cannot.’”

Certifications are only used for involuntary treatment. A person who has been certified can be held in a medical facility for care or can receive outpatient care in the community. The vast majority of civil certifications in Denver are for outpatient care, Horwitz said. Such patients live in the community, but must follow their court-ordered treatment plan or they could be brought back into custody for further care.

Since late 2020, Denver has had a program through which defendants who meet the criteria for civil commitment are transferred out of the criminal system and into the civil system for care. The Denver District Attorney’s Office dismisses the criminal charges against the defendants as long as they comply with their civil court-ordered treatment for a year, said Chief Deputy District Attorney Thain Bell. If the participants don’t comply, then prosecutors can refile the criminal charges, though he said that happens rarely.

People who are found incompetent to proceed in a criminal case can be civilly certified if they meet the criteria, though such cases are rare for a variety of reasons, and make up only about 1% of the civil certifications that the Denver City Attorney’s Office handles, Horwitz said. A new law that takes effect in July 2024 clarifies the path to civil commitment specifically for people who are found incompetent to proceed in criminal cases and aims to make it easier to divert incompetent defendants into the civil system.

During the Oct. 26 hearing about the pending dismissal in Luke’s case, the Denver District Attorney’s Office argued Luke was too dangerous to be released. Prosecutors said Luke wasn’t incompetent at all, and pointed to recorded jail calls in which he discussed his case as new evidence of his competency.

“The victim in the sex assault said to me, ‘How can he be incompetent when he watched me for days before the rape?’” prosecutor Joshua Nathaniel said in court. “…How can he be incompetent when he picked her up, a person with no legs and a malformed arm, and he raped her? How can he be incompetent when he did this for an hour, laid on top of her to where she’s not able to scream?’”

He went on to argue that Luke was faking his disability and asked Brody to reverse her prior finding that Luke was permanently incompetent. Juba later called the district attorney’s position “dishonest and disingenuous.”

“(They’re claiming) every single doctor is wrong, and not only is (Luke) not incompetent, he is so sophisticated and smart and he is able to trick every medical professional who has ever evaluated him,” Juba said in an interview. “That position is crazy.”

But Juba also doesn’t want to see the criminal case dismissed and Luke dropped from the system with nothing. The 21-day window was not enough time to connect him to care.

“If we can’t incarcerate a child who is not competent, and the statute doesn’t allow him to be civilly committed, then what do you do? What is that middle ground? The remedy in this exact situation?” he said. “There has to be some sort of middle ground between just kicking him out and putting him on the streets with nothing, versus you are locked behind locked doors and barbed wire.”

At the end of the Oct. 26 hearing, Brody extended the 21-day stay on Luke’s dismissal for another 120 days, and she sent him back to the Colorado Mental Health Hospital in Pueblo. Juba and a social worker on the defense team have since scrambled to connect Luke to a longer-term placement, a task that falls into no man’s land. It’s not technically part of Juba’s duties as Luke’s attorney, but it’s no one else’s job to figure it out either.

“If I wasn’t the one doing all this, it wouldn’t be done,” Juba said. “…There should be a mechanism where the court appoints someone to act in this capacity.”

And finding a placement is easier said than done. Colorado’s civil inpatient capacity is “precariously low,” the special masters wrote in the November report.

“No amount of diversion, community programs or other outpatient alternatives will ever meet the needs of all Colorado’s mentally ill population,” the report reads. “…Ultimately, the long-term solution to Colorado’s competency crisis will require a strong civil system that can manage the mental health needs of people with minor charges, reserving the criminal court competency system for defendants with serious charges.”

Released into homelessness

A civil commitment didn’t help Patrick Holten escape the competency cycle.

In the spring of 2022, Patrick was found incompetent to proceed in the 2021 menacing case in which he was accused of threatening his neighbor. A Denver judge dismissed the criminal charges against him, and he was transferred to a state mental health hospital for involuntary care under a civil commitment.

For about a year, Patrick received involuntary care. But in April, authorities at the Colorado Mental Health Hospital in Fort Logan decided to discharge Patrick, finding that he no longer met the criteria to be held for involuntary treatment. They dropped him off at an Aurora homeless shelter on April 10 over the objections of his parents and attorney.

“Patrick has continued to voice his desire to return to homelessness and his unwillingness to engage with any treatment options or discharge planning that have been offered,” the hospital’s discharge notes read.

Diane and Charles Holten tried to meet Patrick at the homeless shelter, but the hospital staff could not tell them what time Patrick would be dropped off, and they missed him. Still, they tracked him down that day, found him on Colfax Avenue, got him a food stamp card, a driver’s license, a cellphone.

“They discharged him without medication, without any services in place, nothing in place,” Diane said. “Not even a recommendation for a psychiatrist. Absolutely nothing.”