A broken system: Colorado struggles to uphold laws requiring timely mental competency service for detainees, despite losing lawsuits and years of failure
The state of Colorado has failed for almost a decade to provide mental health services, including evaluations to determine mental competency, to thousands of people in jail who are awaiting trial and presumed innocent.
Despite multiple court orders to reduce the backlogs, pre-trial detainees who require mental competency evaluations and treatment are consistently languishing in Colorado jails or the state mental hospital in Pueblo, often for weeks or even months at a time, in violation of state laws and the U.S. Constitution.
The problem has ballooned in recent years as chronic understaffing, a shortage of mental health beds and a sharp increase in the number of detainees recommended for competency services all add up to a crisis.
Robert Werthwein, the director of the Colorado Office of Behavioral Health, acknowledged the state’s failure, telling Rocky Mountain PBS: “We can do more. We will do more.”
While the history of backlogs dates back more than a decade, the issue formally entered into the legal system in 2011 when Disability Law Colorado, the state’s designated watchdog for the mentally ill, then known as the Center for Legal Advocacy, sued the state.
“Through lack of funding from the state, the competency system really never developed and kept pace with the number of new referrals coming in each month,” Mark Ivandick, the managing attorney of Disability Law Colorado, told RMPBS. “That caused individuals to be warehoused...in jails across the state, without services.”
In 2012, a federal court ruled in favor of Disability Law Colorado and ordered the state to provide timely competency evaluations and treatment to detainees. The state did not comply – the settlement agreement lacked enforcement mechanisms – and Disability Law Colorado sued the state several more times.
A wakeup call came in April 2019, when a federal court in Denver issued a consent decree ordering the state to abide by strict timetables for both evaluating inmates and restoring detainees’ competency or face stiff financial penalties.
Currently the state remains out of compliance with the consent decree, paying fines of up to $1.3 million per month, capped at $10 million per year. The state admits it will not be compliant with the timetable at least through 2020.
State officials, mental health experts and civil rights advocates, including Disability Law Colorado, convened in July 2019 to form a governor’s subcommittee to examine the competency problem and provide a template for solutions.
The subcommittee seeks to implement wholesale changes based on the subcommittee’s conviction that the behavioral health system, not the criminal justice system, can better serve many low-level, non-violent offenders.
At the core is a major policy shift that would move some competency services from the jails and state hospital system into the community, with a focus on preventing those who need services from being arrested.
But those changes are years away.
In response to hundreds of Coloradans currently waiting in jails for competency services, the state Department of Human Services, the agency that oversees the Office of Behavioral Health, is adding 24 beds at the state mental hospital in Pueblo, supplementing the 70 beds that came online in 2019.
Additionally, the state, for the first time in decades, will provide competency services at the state hospital at Ft. Logan, funding 44 beds. But again, occupancy there is still years away.
Separately, the Office of Behavioral Health and local governments have implemented programs to provide more timely competency services to detainees.
OBH has partnered with two local jails – in Boulder and Arapahoe Counties – to provide on-site competency restoration, taking some pressure off the state mental hospital in Pueblo.
The program is called RISE – Restoring Individuals Safely and Effectively.
Ashley Gunterman, the OBH director of jail-based competency evaluation and restoration, showed RMPBS the RISE facility in Boulder. It is carved out of a converted wing of the jail where participants receive treatment away from the jail’s general population.
“The optics are that it is still a jail,” Gunterman explained as she showed a cell that has been converted into a dorm room. “However, the measures that we've taken to change them are safety based. And then the therapeutic element comes in with our programming and with our clinical staff.”
RISE can provide competency restoration treatment for 18 people in Boulder. In Arapahoe County, RISE has 94 patient beds.
Gunterman says RISE has helped ease the backlog for restoration treatment. Yet, despite this success, she says OBH has no plans to expand the program into other counties.
“Growing them further could potentially impact that success,” Gunterman says. “These programs [in Boulder and Arapahoe] are unique.” She says factors such as access to a pool of deputies trained in mental health and clinicians who have experience working with detainee populations make RISE difficult to replicate.
Werthwein, the director of OBH, says RISE is not a long-term answer and the state is examining other solutions.
“We're looking at other options, particularly building the outpatient part,” Werthwein says. “We are focused on what we're legally being told by federal court to focus on, but the problem is much bigger. It's a systemic problem in the state of Colorado.”
It remains unclear if the additional patient beds coming online in Pueblo and Ft. Logan will be sufficient to ultimately end the backlogs for competency services.
Meanwhile it’s costing Colorado taxpayers millions.
“We will still keep paying fines,” Werthwein says. “To me it's not about the money. It's about what it symbolizes, that somebody is waiting. It's heartbreaking. I mean, there is no other way to put it.”
A portion of the fines OBH pays is funneled into programs designed to address the competency services backlog. This backdoor funding mechanism, created by the consent decree, will help pay for community-based restoration services in the Denver metro area.
OBH has partnered with the Colorado Coalition for the Homeless to house low-level, non-violent offenders in four rooms of a Denver hotel the Coalition is converting into homeless housing.
OBH says it will expand this type of community-based competency restoration program into other areas of Denver in the near future.
The shift to community-based competency services will take years to implement. In the meantime, the federal lawsuit and court order have forced the state to review Colorado’s entire mental health system.
Werthwein has asked the Office of Behavioral Health and the Department of Human Services to undertake an audit of the $1.4 billion Colorado spends annually on mental health.
Werthwein hopes the audit will identify priorities and highlight weaknesses so that money can be budgeted more efficiently. Then, he says, if the audit determines that the state needs more money to meet the mental health needs of Coloradans, state officials will have data in hand to approach the state legislature for additional funding.
“We want a stronger behavioral health system in Colorado,” Werthwein says, “and we're working towards a strong behavioral system in Colorado.”
If you need mental health services, contact Colorado Crisis Services for confidential support: 844-493-TALK (8255) or text “TALK” to 38255.