By JOHN KELLNER & ERIK GAMM

Colorado could spare itself a reputational headache and hefty fines if it were to invest in criminal incompetency restoration, but it would need to cut mental health operating costs to make the effort worthwhile. When criminal defendants are declared incompetent, they may also be declared “restorable,” meaning they could, with counseling and mental healthcare, restore a level of mental capacity that could carry culpability. The backlog of criminal defendants waiting for mental health services has risen in the last year, as has the length of time they need to wait for an available bed. In the meantime, high-visibility cases have highlighted a pervasive problem in Colorado relating to incompetency to stand trial. This situation has been created over the last five years. In March 2019, the Colorado Department of Human Services (CDHS) resolved an eight-year federal lawsuit regarding excessive wait times for courtordered competency services. The settlement, filed as a consent decree, required CDHS to expand community-based services, speed up inpatient admissions, and provide treatment for people in jail awaiting competency services. CDHS faces up to $12 million annually in fines if it fails to meet new service deadlines. The agreement comes after years of rising demand: since 2000, inpatient competency evaluation orders increased nearly 600%, and restoration service orders rose more than 1,200%. Disability Law Colorado reopened the lawsuit after CDHS failed to meet previous settlement deadlines. In subsequent years, the backlog has not only ceased to disappear but grown. The state of Colorado has not paid the fine threshold each year but has in some, an outlay that has added to the state’s deficit. In the meantime, judges have less discretion regarding when to release accused criminals who are mentally incompetent back into the public to await restoration.

KEY FINDINGS • Since 2000, inpatient competency evaluation orders increased nearly 600%, and restoration service orders rose more than 1,200%. • As of June 2025, there are 368 Colorado inmates on the wait list to receive court-mandated competency restoration. • There are 673 total beds reserved for incompetency restoration treatment. They are always occupied, creating a wait list referred to as the state’s “backlog.” • Over the last year, 930 inmates have been referred for restoration and have spent, or will spend, an average near 110 days each on the wait list. • The Colorado Department of Human Services (CDHS) pays a fine between $100 and $500 per day for keeping an inmate ordered to undergo competency restoration waitlisted for longer than 28 days. In Fiscal Year 24, CDHS paid $12 million, which is the cap under the consent decree. • If the consent decree had not included a cap, the fines would have cost $65.2 million. • To bring wait times below 28 days, the state would need to add 209 new beds. These resources would save the state $12 million (plus annual adjustments to the cap) per year by eliminating the fines and $11.9 million per year by reducing the amount of time that inmates spend in public facilities while on the wait list. • HB22-1303 budgeted $6.2 million per year to staff and operate 16 new beds at the Colorado Mental Health Hospital in Fort Logan. At $388,279 per bed, 209 new beds would require $81.2 million of additional state spending per year. • State accreditation standards require that mental institutions dedicate about 3.7 FTE of staff to each restoration bed; this requirement alone generates 74% of the total cost per unit. • Inpatient restoration is almost seven times more expensive than incarceration, which costs just $58,000 per inmate annually. • In total, the state would face an annual cost of $57.2 million to comply with the 2019 consent decree.

Greenwood Village, CO: Common Sense Institute, 2025. 13p.