Second Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 14-0199.01 Jane Ritter x4342 HOUSE BILL 14-1025 HOUSE SPONSORSHIP Rosenthal, Wright SENATE SPONSORSHIP Newell, Tochtrop House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning the determination of competency to proceed for individuals in the juvenile justice system. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Legislative Oversight Committee for the Continuing Examination of the Treatment of Persons with Mental Illness Who Are Involved in the Criminal and Juvenile Justice Systems. The bill creates a definition of "incompetent to proceed" that is specific to juveniles in order to distinguish it from that used for adults in the criminal justice system. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 19-2-103, add (5.5), (9.5), (9.6), (12.3), (12.4), and (14.3) as follows: 19-2-103. Definitions. For purposes of this article: (5.5) "Developmental disability" means a disability that is manifested before the person reaches his or her twenty-first birthday, that constitutes a substantial disability to the affected individual, and that is attributable to an intellectual disability or other neurological conditions when those conditions result in impairment of general intellectual functioning or adaptive behavior similar to that of a person with an intellectual disability. Unless otherwise specifically stated, the federal definition of "developmental disability", 42 U.S.C. sec. 15001 et seq., shall not apply. (9.5) "Incompetent to proceed" means that a juvenile, due to mental disability, developmental disability, intellectual disability, or lack of mental capacity, lacks a reasonable degree of rational and factual understanding of the proceedings against him or her or is unable to consult or communicate with and assist his or her attorney in preparing his or her defense in a meaningful manner. (9.6) "Intellectual disability" means a disorder with onset during the developmental period that includes both intellectual and adaptive functioning deficits in conceptual, social, and practical domains, and includes the following criteria: (a) Deficits in intellectual functions, such as reasoning, problem solving, planning, abstract thinking judgment, academic learning, and learning from experience, confirmed by both clinical assessment and individualized, standardized intelligence testing; (b) Deficits in adaptive functioning that result in failure to meet developmental and socio-cultural standards for personal independence and social responsibility. Without ongoing support, the adaptive deficits limit functioning in one or more activities of daily life, such as communication, social participation, and independent living, across multiple environments, such as home, school, work, and community; and (c) The onset of intellectual and adaptive deficits during the developmental period. (12.3) "Mental capacity" means a juvenile's capacity to: (a) Comprehend and appreciate the charges or allegations against him or her; or (b) Understand the adversarial nature of the proceedings, including the role of the judge, defense counsel, prosecuting attorney, guardian ad litem or court-appointed special advocate, or witnesses, and be able to assist in his or her defense; or (c) Comprehend and appreciate the consequences that may be imposed by the court or result from the proceedings. (12.4) "Mental disability" means a substantial disorder of thought, mood, perception, or cognitive ability that results in marked functional disability and significantly interferes with adaptive behavior. "Mental disability" does not include acute intoxication from alcohol or other substances, any condition manifested only by antisocial behavior, or any substance abuse impairment resulting from recent use or withdrawal. However, substance abuse that results in a long-term, substantial disorder of thought, mood, or cognitive ability may constitute a mental disability. (14.3) "Restoration hearing" means a hearing to determine whether a defendant who has previously been determined to be incompetent to proceed has achieved or is restored to competency. SECTION 2. In Colorado Revised Statutes, 19-2-1301, amend (2) as follows: 19-2-1301. Mental incompetency to proceed - effect - how and when raised. (2) A juvenile shall not be tried or sentenced if the juvenile is incompetent to proceed, as defined in section 16-8.5-101 (11), C.R.S. 19-2-103 (9.5), at that stage of the proceedings against him or her. SECTION 3. In Colorado Revised Statutes, 19-2-1302, amend (3), (4) (a), and (4) (c) as follows: 19-2-1302. Determination of incompetency to proceed. (3) If the question of a juvenile's incompetency to proceed is raised after a jury is impaneled to try the issues raised by a plea of not guilty or after the court as the finder of fact begins to hear evidence and the court determines that the juvenile is incompetent to proceed or orders the juvenile referred for a competency examination, the court may declare a mistrial. If the court declares a mistrial under these circumstances, the juvenile shall must not be deemed to have been placed in jeopardy with regard to the charges at issue. The juvenile may be tried on, and sentenced if adjudicated for, the same charges after he or she has been found to be achieve or be restored to competency. (4) (a) If the court orders a competency evaluation, the court shall order that the competency evaluation be conducted in the least-restrictive environment, including home or community placement if appropriate, taking into account the public safety and the best interests of the juvenile. (c) The competency evaluation shall must, at a minimum, include an opinion regarding whether the juvenile is competent incompetent to proceed as defined in section 16-8.5-101 (4), C.R.S. 19-2-103 (9.5). If the evaluation concludes the juvenile is incompetent to proceed, the evaluation shall must include a recommendation as to whether the juvenile may achieve or be restored to competency and identify appropriate services to restore the juvenile to competency. SECTION 4. In Colorado Revised Statutes, 19-2-1304, amend (1) and (3) as follows: 19-2-1304. Restoration to competency. (1) The court may order a restoration hearing, as defined in section 16-8.5-101 (13), C.R.S. 19-2-103 (14.3), at any time on its own motion, on motion of the prosecuting attorney, or on motion of the juvenile. The court shall order a hearing if a mental health professional who has been treating the juvenile files a report certifying that the juvenile is mentally competent to proceed. (3) At the hearing, the court shall determine whether the juvenile has achieved or is restored to competency. SECTION 5. In Colorado Revised Statutes, 19-2-1305, amend (1) and (2) as follows: 19-2-1305. Procedure after hearing concerning restoration to competency. (1) If a juvenile is found to be have achieved or been restored to competency after a hearing, as provided in section 19-2-1304, or by the court during a review, as provided in section 19-2-1303 (2), the court shall resume or recommence the trial or sentencing proceeding or order the sentence carried out. The court may credit any time the juvenile spent in confinement or detention while incompetent against any term of commitment imposed after achievement of or restoration to competency. (2) If the court determines that the juvenile remains mentally incompetent to proceed and the delinquency petition is not dismissed, the court may continue or modify any orders entered at the time of the original determination of incompetency or enter any new order necessary to facilitate the juvenile's achievement of or restoration to mental competency. SECTION 6. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.