First Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 15-0058.01 Jane Ritter HOUSE BILL 15-1025 HOUSE SPONSORSHIP Rosenthal, SENATE SPONSORSHIP Newell, House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning competency to proceed for juveniles involved 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 Concerning the Treatment of Persons with Mental Illness in the Criminal and Juvenile Justice Systems. The bill establishes a juvenile-specific definition of "incompetent to proceed" for juveniles involved in the juvenile justice system, as well as specific definitions for "developmental disability", "intellectual disability", "mental capacity", and "mental disability" when used in this context. The bill clarifies the procedures for establishing incompetency, as well as for establishing the restoration of competency. 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 does not have sufficient present ability to consult with his or her attorney with a reasonable degree of rational understanding in order to assist in the defense or that he or she does not have a rational as well as a factual understanding of the proceedings against him or her. (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 a 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 meet all of the following criteria: (a) Comprehend and appreciate the charges or allegations against him or her; (b) Understand the adversarial nature of the proceedings, including the role of the judge, the defendant's attorney, the prosecuting attorney, the defendant's guardian ad litem, if applicable, or witnesses, and be able to assist in his or her defense; (c) Comprehend and appreciate the consequences that may be imposed by the court or result from the proceedings; (d) Disclose to counsel facts pertinent to the proceedings at issue; (e) Display appropriate courtroom behavior; and (f) Testify relevantly. (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 to competency 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, add 19-2-1300.2 as follows: 19-2-1300.2. Legislative declaration. (1) The general assembly finds and declares that: (a) The juvenile justice system is civil in nature and focused on treatment rather than punishment; (b) It is crucial to avoid the negative consequences of prosecution whenever necessary and possible, and to promote mental health treatment pathways for juveniles in the juvenile justice system; (c) Juveniles differ in significant and substantive ways from adults; therefore, different standards for competency are necessary for juveniles and adults; (d) Juveniles, like adults, are presumed competent to proceed until such time as they are found incompetent to proceed through a formal competency evaluation; and (e) Age alone is not determinative of incompetence without a finding that the youth actually lacks the relevant capacities for competence. SECTION 3. In Colorado Revised Statutes, 19-2-1301, amend (2) as follows: 19-2-1301. 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. A determination of competency must include an evaluation of developmental disabilities, mental disabilities, and mental capacity. SECTION 4. 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 achieved or been found to 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 there is a likelihood that the juvenile may achieve or be restored to competency and identify appropriate services to restore the juvenile to competency. SECTION 5. In Colorado Revised Statutes, 19-2-1304, amend (1) and (3) as follows: 19-2-1304. Restoration to competency hearing. (1) The court may order a restoration to competency 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 restoration of competency 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 restoration to competency hearing, the court shall determine whether the juvenile has achieved or is restored to competency. SECTION 6. In Colorado Revised Statutes, 19-2-1305, amend (1) and (2) as follows: 19-2-1305. Procedure after restoration to competency hearing. (1) If a juvenile is found to be have achieved or been restored to competency after a restoration to competency 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 to proceed 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 7. 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.