Given the lengthy restoration waitlist and the resulting cost to Colorado, the justice system, victims, and defendants, prosecutors should carefully consider alternatives to the traditional competency and restoration process. This is especially true when these alternatives can achieve the same, similar, or even better outcomes without the delay, work, and expense of traditional competency proceedings and restoration.

District Attorney Diversion

Raising competency and even finding a defendant incompetent no longer prevents a District Attorney’s office from accepting a defendant into a pre-trial diversion program. § 18-1.3-101(9)(g). As long as the defendant “has the ability to participate and is advised of the potential consequences of failure to comply,” the defendant can fully participate in those programs regardless of their competency status. § 18-1.3-101(9)(g)(I). The defendant entering a competency diversion program waives speedy trial and even tolls the statute of limitations when the diversion program is specifically designed for incompetent or potentially incompetent defendants. §§ 18-1.3-101(9)(g)(II); 16-5-401.

Do not refer an incompetent or potentially incompetent defendant to a diversion program in your office without first checking with your supervisor. Not all District Attorney offices accept incompetent defendants into diversion, and those that do typically require the defendant and the case to meet certain criteria.

The Bridges Wraparound Care Program

Before raising competency, after raising competency but before determining competency, or even after a defendant has been determined to be incompetent, a defense attorney may request you consider referring the defendant to the Bridges Wraparound Care Program. See §§ 16-8.5-102(4), 16-8.5-111(1.5), and 16-8.6-108. A defendant cannot be referred to this program without your consent. § 16-8.6-108(1). Although the statute outlines certain criteria, such as the seriousness of the charges, referral is entirely at the District Attorney’s discretion. See § 16-8.6-108(1), (2) (permitting exceptions to the statutory criteria but only if the District Attorney agrees).

Once referred and accepted, this program places the defendant into a customized wraparound care plan run by the state agency Bridges of Colorado intended to help stabilize the defendant, provide the defendant helpful services, and keep the defendant crime free. See § 16-8.6-103(2). Speedy trial is tolled while the defendant participates in the program. § 16-8.6-112.

After a period of the defendant’s participation in this program, usually 182 days with a possible 91 day extension, the case is dismissed—which may have happened anyway had you chosen to contest competency. § 16-8.6-110(1).

If the defendant fails to participate in their plan, then you can move to revoke the defendant from the program. § 16-8.6-110(2). This is called “termination” from the program. Id. Once revoked, the prosecution continues wherever the prosecution was at the time of the referral to Bridges. Id.

Competency Courts

In some jurisdictions, the judiciary has created “competency courts,” for certain types of cases and defendants. These specialty courts offer expertise and services dedicated to this difficult to serve population. Generally, once competency has been raised, jurisdictions with competency courts decide, based on that jurisdiction’s criteria, whether to send that case to the competency docket. Speak with your supervisor about whether your jurisdiction has a competency court and, if so, under what circumstances you should refer a case to that docket.