JAILS, COURTROOMS BECOME MENTAL HEALTH SAFETY NET
Mentally ill people often end up in jail instead of in treatment, fueling Colorado’s competency crisis
Troy Null listened to the 22-year- old man she considered a son as he very earnestly told her he believed he was God.
Junior’s mental health had been declining for months — he’d been shadowboxing invisible enemies in her hallway at night — and she’d tried unsuccessfully to get him help.
“Everywhere I took him, they said, ‘ Are you homicidal?’ No. ‘Are you suicidal?’ No. ‘ There’s nothing wrong with him, take him home,’ ” Null said. “There is nothing more frustrating in the world than trying to take care of an adult child with mental illness in this state.”
Null had volunteered as Junior’s court- appointed special advocate beginning when he was 14, and she took him into her home as a son after he turned 18, though they never formalized an adoption. She spoke about him on the condition he only be identified by his nickname to protect his privacy.
After Junior said he was God about six years ago, Null sat him down with some other family members and told him he wasn’t.
“And he looks at us and goes, ‘ Well, you know me as well as anyone in the world, and if you say I’m not God then I guess I’m not. But I was pretty sure I was,’” Null said. “He was ill, very, very ill. But I couldn’t get anyone to do anything, which is the case a lot in Colorado. It’s a stopgap — wait until they’re arrested.”
Colorado’s mental health system is so weak that one of the more reliable ways for mentally ill people to access help is through the criminal justice system. But police and criminal courts are not designed to help people with mental illnesses, and the court system lands sick people in jail when they need help.
“The safety net system is not successfully providing adequate services to individuals, leaving only the criminal justice system to respond to them, therefore perpetuating a cycle of recidivism,” Colorado Department of Human Services officials wrote in a September report. “There is currently a disconnect between the forensic competency system and an adequate civil community- based behavioral health system.”
In a series of two stories this week, The Denver Post is examining how that mismatch fuels the pipeline of people who enter the state courts’ competency system, a legal process meant to ensure people are not prosecuted for crimes when they are too sick or too disabled to understand the court process and help to defend themselves. Hundreds of people in Colorado in the last six years have gone through competency treatment over and over again, cycling through even when evaluators previously have said treatment is not likely to help them become competent.
“Because there is not an appropriate system in place for them, they’ve ended up in the criminal justice system, and it has put this magnificent burden on the competency system, because that is all we know how to do,” said Steve Leifman, an associate administrative judge in Miami-Dade County Court who has led competency-related reforms in Florida since the early 2000s. “It’s not nefarious, it’s not one person, one party, one institution, one justice system. It’s just built wrong. Because it wasn’t built for this problem.”
Colorado’s competency system is so backed up that people with mental illnesses end up waiting in jail for months before they can receive treatment, if they ever do. At the end of October, 427 people were waiting in jail for inpatient competency restoration treatment, according to court records, and defendants on average waited more than four months for beds.
“When you find a family member in crisis with ongoing mental health conditions occurring, the national tragedy is there is no reliable way to turn,” said Vincent Atchity, CEO of Mental Health Colorado. “… And the competency backlog is one of the most horrific pain points for that … everything ties together here at this terrible place. If you look at the homelessness situation, the overdose epidemic, it’s no mystery here what is going on: it’s neglect and failure, and then blunt response.”
“The voices started talking in his head again”
A couple of months after Junior told Null he was God, he was arrested.
A woman alleged he grabbed her in the stairwell outside her Aurora apartment, groped her and choked her before the woman’s son rushed to her aid and neighbors restrained Junior until police arrived. He was charged with sexual assault, assault and trespassing in December 2018. His case has been on hold since early 2019 because of questions about his competency, and he has not been convicted.
Junior spent a year in jail after the 2018 arrest and picked up two more criminal cases. Once, for allegedly spitting at deputies while they tried to force him into an emergency restraint chair after he refused to walk where they wanted him to, and once for allegedly throwing urine on a deputy through a food slot in his cell door, court records show. (Both cases were later dismissed because he remained incompetent.)
Eventually, Junior was sent to the Colorado Mental Health Hospital in Pueblo for inpatient competency treatment and, Null said, he spent about three years there receiving treatment. When Null visited Junior in Pueblo in January, he was clearly doing much better, she said.
“He was my Junior again,” she said. “It was astounding. He was present, he was loving and kind and funny, and interested in what everyone in the family is up to.”
Junior, now 27, was deemed competent in March and returned to the Arapahoe County Detention Center to face the charges in the 2018 case. Competency is a case-specific designation, meant to capture a defendant’s mental capabilities during a particular time, and doesn’t apply across cases. For a while, Junior diligently called Null from jail, and every time they talked, she reminded him to keep taking his medications.
But then he told his sister that the pills in jail were different than the ones he’d been given at the hospital and he didn’t know what they were. He grew suspicious of them. He stopped calling.
“And the voices started talking in his head again,” Null said.
In June — just three months after Junior was found competent and returned to jail — Junior’s public defender asked the court for a new evaluation of his competency. And in November a judge found Junior incompetent to proceed and ordered him back into inpatient treatment at the mental health hospital, court records show.
“It blows my mind,” Null said. “… The backlog is incredible. There are hundreds of people on that waiting list. Yet they afford Junior three years down there, only to return him to the system in Arapahoe County and let him go right back. It just boggles my mind.”
It’s well known that a portion of competent criminal defendants become incompetent again while waiting in jail for their cases to proceed, said state Rep. Judy Amabile, a Boulder Democrat.
“Jails are for punishment,” she said. “So you’re saying, ‘ OK, well, you are sick and instead of treating you, we are going to punish you for being sick.’ ”
In the Boulder King Soopers mass- shooting prosecution, District Court Judge Ingrid Bakke was so worried the suspect in the 2021 attack — who was found competent to proceed this summer after a two-year delay in the case — would become incompetent if housed in the Boulder County Jail that she ordered that he stay at the Colorado Mental Health Hospital in Pueblo instead. She cited concerns that he would refuse his medication at the jail and quickly become incompetent again, just like Junior did.
Jail medical personnel have the legal authority to force inmates to take medications against their will if the inmates are under court orders for involuntary medication, but not all jails have the practical ability to do so. The Boulder County Jail does not have the “qualified staff or equipment” to carry out involuntary medication, Bakke found.
The court-appointed special masters tasked with overseeing competency reform at the Colorado Department of Human Services wrote in a November report that the state should “vigorously explore” the use of involuntary medication orders, known as IMOS, in jails.
“We share concerns from advocates that overreliance on IMOS could shift treatment to jails that should occur in the hospitals,” the report says. “We also understand many jails have inadequate staff or conditions to appropriately provide IMOS and monitor their effects immediately after administration. On the other hand, we see the dramatic improvements medications can bring to those suffering in jails. We have seen the benefits of more assertive IMO policies on waitlisted detainees in several other states.”
The Department of Human Services is required by state law to work with jails to provide mental health services for inmates who are on the waitlist for competency treatment, but efforts to do so have been hampered by “various logistical barriers,” including an inability for jails to recruit qualified mental health providers, growing competency demand and the worsening mental health of pretrial detainees, according to a September report filed by the department.
A proposed bill that will be considered in the 2024 legislative session would also require the department to work with jails and the jails’ medical providers to “ensure that the jail has the necessary information to prevent any decompensation while the defendant is in jail,” though it does not spell out how that process should unfold.
Most awaiting treatment face low-level charges
On a rainy April night in Boulder, Tony finally called 911 when his 28-year- old son David ran into four lanes of traffic in the 3000 block of O’neal Parkway. He was sure his son was trying to die by suicide.
A Boulder police officer arrived and convinced David to move out of the street, then asked David if he could pat him down to check for weapons. David agreed, according to an arrest affidavit. But when the officer pulled David’s hands behind his back, David “stiffened” and moved back toward the road, according to a police report. Tony spoke with The Post on the condition that he and his son be identified by their middle names to protect their privacy.
The of ficer told David to “stop pulling,” and they tussled. The officer claimed David spit on him — though he later noted it could have been rain he felt — and claimed David kicked him in the leg five times. Tony, who was standing nearby and telling officers that his son was in a mental health crisis, said he did not see David kick at the officer.
The officer arrested David on charges of felony assault on a police officer and two misdemeanor counts of assault on a first responder with bodily fluid.
David’s life spiraled after the arrest. He became homeless for the first time in his life. He didn’t show up for his court hearings and was soon wanted on a warrant. He stopped communicating with his dad out of paranoia stemming from the arrest, from a sense that people were after him and his dad was involved. His car was impounded and because of his paranoia, he refused to sign the paperwork to get it released, which could lead to it being auctioned off. He picked up three new lowlevel criminal cases in Boulder in September and October — trespassing and criminal mischief.
“This has shoved him off the mental illness cliff,” Tony said. “And that’s the problem. This has got him to a place he’s never been before. And I don’t how to get him out of it.”
David was arrested on the warrant in early November, and Boulder County District Judge Patrick Butler ordered David go through an in- custody competency evaluation.
“Whether he is competent or not, trying to be punitive of his decision to kick an officer with flip-flops on during a mental crisis, when in our opinion he was trying to take his own life — it’s like, you survive that, but the other side of it is a nightmare,” said David’s mother Mary, who also spoke on the condition she be identified by her middle name.
A competency evaluation in David’s case will help the court system understand his particular mental health conditions and whether the criminal prosecutions should continue, Boulder County District Attorney Michael Dougherty said.
“He might have been in a downward spiral before the arrest here,” he said. “People should not have to hit the doors of the justice system to get mental health treatment.”
Only 25% of people on the waitlist for competency treatment in Colorado are facing serious felony charges — Class 1, 2 or 3 felonies, said Jordan Saenz, communications manager for the Office of Civil and Forensic Mental Health. A full 75% of people waiting for inpatient competency treatment are, like David, facing either misdemeanor or lower-level felony charges, said Leora Joseph, the office’s director.
“Are those cases where the ideal of competency, which is what we spend an enormous amount of time and effort on, is that the ideal of the justice system?” she said. “Or, instead of competency for cases of misdemeanor and lowlevel felonies, should we be looking at alternative ways to treat people in a holistic matter?”
Competency evaluations and treatment should be reserved for felonies, Leifman, the judge in Florida, said. In Miami, judges have “virtually stopped” ordering competency evaluations for people who are facing misdemeanor charges, he said. Instead, they send such defendants into short-term crisis stabilization units as a condition of their release from custody, Leifman said, and then offer them diversion — where the criminal charges against a defendant are eventually dismissed if they meet certain conditions — when they are stabilized, which usually happens in a couple of weeks.
“Treatment should be the goal, not restoration, for people charged with the not-serious stuff,” he said. “We all love the idea that people should be accountable and be punished for what they did, but if they’re truly ill they have no idea they truly did it, it’s much better to just get them into a treatment program than even worry about punishing them. The punishment, if you are ill, doesn’t change behavior.”
Miami-dade County is also opening the Miami Center for Mental Health and Recovery, a $51 million, seven-story diversion and treatment facility for people with acute mental illness who are either cycling through the criminal justice system or at risk of doing so. The firstof-its-kind, 208-bed facility includes a locked crisis stabilization unit, a locked short-term residential facility, day programming, vocational training, a courtroom, health clinics, transitional housing and a program specifically designed to help people who are sick but do not qualify for a civil commitment. Residents can stay for up to a year, Leifman said.
“So instead of discharging people to the street once we have adjudicated their case, we will gently integrate people in recovery back into the community with all the supports they need to maintain their
recovery,” Leifman said. “We believe that will help to break the cycle of homelessness and untreated mental illness for the most acutely ill who keep cycling through.”
Lack of a robust mental health system
There is growing recognition in Colorado’s courts that competency cases — which make up only 2% of all criminal cases in the state — should be treated dif ferently from other cases.
Authorities in the Eighth Judicial District, which includes Larimer and Jackson counties, launched a special court program specifically for competency cases in 2021. Since then, similar specialty courts have been created in five other judicial districts covering 13 counties, and there are plans to add the specialty competency courts in an additional four judicial districts.
Between January and June, 979 defendants participated in competency courts across Colorado, according to a September report by the Colorado Department of Human Services.
The specialty courts are designed to bring together extra support and expertise around competency so that the cases are handled efficiently, with defendants receiving outpatient competency evaluations and treatment as much as possible, said Amanda Duhon, chief deputy district attorney in the Eighth Judicial District.
“It took a flip in my brain to realize that sometimes the right or just thing to do is to figure out how to get this person out of the system, get them support and dismiss their case,” she said.
Fort Collins resident Brittany Bush was terrified when her 18-year- old autistic son entered the court system this summer. He’d attacked her in late July, stabbing her five times with a knife, and he’d gone to jail even though she didn’t want to press charges. After her son’s bail hearing, she approached the prosecutor on the case and explained that she didn’t want to press charges, that she considered the attack a “horrible mishap,” not a crime, she said.
“I said, ‘I’m not pressing charges,’ but the DA, she smiled, like she was proud of herself, and she was like, ‘ No, but I am,’ ” Bush said, and paused. “Being a mom of a child with disabilities, if it wouldn’t have put me in jail, I probably would have knocked her out.”
But after that initial experience, her son’s case was moved onto Larimer Count y ’ s competency docket, where she discovered a completely different experience: people there took the time to understand her son’s condition and how it contributed to his actions.
“To see that this part of the court system that deals with people with mental illness or special needs, actually have a heart, listen and actually pay attention to people, it definitely shows a brighter side of things that Colorado isn’t as horrible as I thought it was,” she said.
Her son was found permanently incompetent to proceed, and the case against him was dismissed and sealed in late October, just three months after his arrest, she said.
“So there’s nothing more that needs to be done with it,” she said. “He’s still doing great. And ironically, as weird as this may sound … with this happening the way it did, it brought our family closer together.”
Initially, Duhon and others who launched Larimer County’s competency court expected to divert cases out of the criminal justice system and into the civil court system.
“In theory we really wished we could keep people who are going through mental health crises out of the criminal justice system and fall back on some other system that is set up,” she said. “But we realized that system isn’t as robust as the system we have.”
When the civil system proved inadequate, Larimer County’s competency court leaders pivoted to looking for similar solutions for care, but within the criminal justice system instead of outside of it, she said. The court now leans heavily on diversion programs.
The lack of a robust mental health system in Colorado acts hand in hand with the criminal justice system to continually cycle people through the competency process. And it won’t get better until a better system is built across both sides, said Atchity, the CEO of Mental Health Colorado.
“We’re always going to be in a reactive crisis mode around this criminalized nightmare if we can’t coordinate our efforts to create a meaningful system of housing, health care, supports and services on the civil side,” he said. “… There needs to be work on the competency intersection and solving to that ‘ x,’ while also solving on the preventative side in terms of shutting off the flood of individuals at risk of criminalization on the basis of their unmet mental health needs. And if we do both at once, there’s some hope.”