Update on SB 20-181 Improving Outcomes for Defendants Who May Be Found Incompetent to Proceed

Current law requires a competency report to include an opinion regarding whether a defendant can be restored to competency and participate in their own defense. SB 20-181 made updates to the competency reporting requirements effective July 1, 2020:

  • If a defendant has been found incompetent to proceed (ITP) by any court in the last 5 years, an evaluator must state why the defendant's circumstances are different from the past, if in the opinion of the evaluator there is substantial probability of the defendant attaining competency.

  • If a defendant is diagnosed with an intellectual or developmental disability, traumatic brain injury, or dementia, an evaluator must state whether he or she believes there are unique or different services outside the standard competency restoration curriculum that the defendant may need, if the opinion of the evaluator is that the defendant has a substantial probability of attaining competency.

  • If a defendant has been found ITP 3 or more times over the previous 3 years, even if later restored, an evaluator must identify those instances and provide an opinion on the defendant’s substantial probability of attaining competency.

In addition to new requirements for evaluators, SB 20-181 created new requirements for courts. If the court finds no substantial probability of restoration, the court must dismiss the case and may consider certification proceedings. SB 20-181 also requires courts to consider releasing on bond defendants who are in custody on certain offenses and to order outpatient restoration services unless there are extraordinary circumstances. The bill also adds offenses that are eligible for dismissal upon a defendant being found ITP.