Bob Gardner

Recent reports of the release of potentially dangerous criminal defendants found mentally incompetent to stand trial have ignited public outcry for legislative action and even a special session to protect the public. Public concern is justified, but citizens should make no mistake as they call for action. This is not a case of legislators going soft on crime, nor is there a simple solution.  Legislators, prosecutors, defense attorneys, law enforcement, victim advocates, and the judicial branch must engage to solve one of the most difficult issues in criminal law: how to safeguard the public when defendants accused of serious crimes are found incompetent to stand trial.

Legal incompetence means that a person cannot understand the court process or assist in their own defense. It often stems from severe mental illness, intellectual or developmental disabilities, or traumatic brain injury. Historically, this meant commitment to a mental institution for years or perhaps life if the public’s and the person’s own safety could not be assured.  Then, in the last century, America began to deinstitutionalize those with mental illness.  This movement, though laudable in its goals, left gaps in care—notably for the mentally ill who commit crimes.  The result has been that county jails hold many in pretrial confinement who need evaluation and treatment. Recently, the closure of mental health facilities led to the dismissal of cases—and the release of defendants accused of murder, sexual assault, and other grave crimes—leaving victims, their families, and our communities shaken.

The inadequacies of our system cause struggles across the board: for law enforcement and prosecutors trying to protect the public, victims and defendants left in limbo, and cases stalled for months or years as an overburdened and under-resourced system worked to evaluate and treat defendants in hope that the court process could proceed.

Colorado’s long-standing challenges are not unique. The state remains under a years-old federal consent decree following a lawsuit over excessive wait times for evaluations and restoration services. On any given day, roughly 400 individuals sit on the waitlist, with delays stretching into months. This burden falls heavily not only on victims and defendants but also on strained state resources and taxpayers. And while the consent decree penalizes the state for failing to meet court deadlines and improve the system—imposing fines of up to $60 million annually—it offers no meaningful solutions.

Lawmakers have tried repeatedly to address this problem, balancing two principles that cannot be compromised: it is unconstitutional to prosecute an incompetent defendant, and the public must be protected from violent offenders. During my tenure, I co-sponsored several reforms aimed at finding an appropriate balance. In 2022, HB22-1386 modernized evaluation and restoration procedures and strengthened oversight, while safeguarding constitutional due process. In 2024, HB24-1355 created the Bridges Wraparound Care Program to connect eligible defendants with critical mental health services. That same year, facing escalating pressures from the consent decree and skyrocketing expenses, we advanced HB24-1034, a bipartisan effort to strengthen the system within tight budgetary limits—and one that when passed, had broad support among stakeholders including law enforcement, prosecutors, and mental health advocates.

Two years later, the results are clear: progress has been made, but more work lies ahead. Implementation revealed weaknesses and potential abuses that urgently demand correction. As with every imperfect step towards a solution, the bill was the right effort at the time – informed by a broad coalition of stakeholders and aimed at an urgent problem. The legislature must act now to ensure prosecutors are not left with an insurmountable burden when seeking restoration. Consistent with U.S. Supreme Court precedent, defendants should bear the responsibility of proving—through reliable evidence—that they are incompetent to proceed and cannot be restored.

At the same time, when defendants are found both incompetent and not restorable, cases must not simply be dismissed without oversight. Courts need effective mechanisms to commit these individuals safely and to transition them into systems equipped to supervise them. That includes ensuring adequate inpatient capacity at the state’s mental health hospital.  Defendants must not slip through the cracks and return to the community untreated, where they may cause further harm.

None of this is easy, especially under Colorado’s budget constraints. Yet in matters of public safety and justice, standing still is not an option. In preparation for the next legislative session, legislators from both parties, along with prosecutors, defense attorneys, law enforcement, victims, and mental health advocates are working collaboratively to find solutions.  Progress may come in imperfect steps, but public safety must remain our paramount concern.

Bob Gardner is a former State Representative (2007-2014) and Senator (2017-2024). He served as either Chair or Ranking Member on both the House and Senate Judiciary Committees for sixteen years.