In Colorado, defendants facing serious criminal charges with seemingly insurmountable evidence — caught-at-the-scene kind of evidence — have only a couple paths to avoid accountability: claim insanity or delay the trial long enough that all the witnesses against them die and the evidence is mishandled or is destroyed in a fire. Democrat state Rep. Javier Mabrey, who is quickly becoming a BFF for the newly minted “criminal justice involved” crowd, wants to create another way out or accountability: incompetence.
A quick rundown on insanity versus incompetence: Insanity is a claim that at the time someone committed a crime — usually something heinous, like mass murder — they suffered from some mental disease or disability that prevented them from knowing right from wrong or from being able to form the intent to murder after deliberating on it. It is a complete defense to crime. If a killer truly believed they were killing demons, we would not treat them as we would someone who knew they were killing people. Insanity must exist at the time of the crime.
Incompetence is different. Incompetence is a claim that a mental disability of some kind prevents the defendant from understanding the court process — what is happening to him — in a way that makes him incapable of meaningfully assisting in his own defense. That is Sixth Amendment stuff. It does not have anything to do with his sanity at the time he committed a crime and can occur later — perhaps after the criminal has absconded for hours, days, or years. It is not a defense to crime, because it is disconnected from it.
Currently, those seeking to avoid accountability by claiming they are incompetent only delay their proceedings by doing so. The state tries to “restore” them to competency with medication, as with the Boulder King Soopers mass murderer. Once restored, they proceed through the criminal justice process just like you and me, which means they could be convicted and held accountable.
Defense attorneys have figured out that if they overload the state mental health system with competency claims, the system grinds to a near halt. Since 2018, the number of incompetence claims has increased by nearly 300 percent, so the system has slowed way down.
Enter Mabrey to fix it. No, not with extra resources to the state hospital to do more timely competence evaluations, but with a get-out-of-jail free card for criminal defendants to stay on our streets before being restored to competency, and then dismissing their charges. All of this would take place without the district attorney having the ability to intervene and stop it.
Mabrey’s HB24-1355 claims that this road to prevent prosecution would apply only to “low level offenses.” He makes “presumptively eligible” for his program those people accused of: stealing cars, business burglary, assaulting and injuring law enforcement officers, pimping an adult, using date rape drugs on women, enticing a child, aggravated cruelty to animals, dealing enough fentanyl to kill 7,000 people, and many others. In Mabrey’s Denver, maybe these are low-level offenses.
Mabrey’s bill can only accomplish his goal by destroying the constitutional principle of “separation of powers,” the principle that one branch cannot exercise the powers of another branch. For example, the bill mandates that the elected district Attorney (a member of the executive branch) engage in a memorandum of understanding with the court (the judicial branch) to involve unidentified and unaccountable community groups in a forced collaboration that shifts a ton of responsibility and authority to those community groups and completely away from the district attorney and courts.
The elected DA — the only person in this entire process who is elected by the community in which incompetent criminals are returned to our streets — is excluded from the process. Even the judge is mandated to refer a person to the program once they are determined to be eligible by some bureaucrat.
Once those unknown, unaccountable people announce the would-be criminal defendant has “successfully completed” the yet undefined program (a completely undefined term), the judge is mandated to dismiss the charges against them. Poof. Gone. No input or objection from the DA who filed the charges is permitted. There is nothing like this in our law — likely because it is unconstitutional.
Predictably, Mabrey ensures that nothing the defendant says during the entirety of the program can ever be used against them — including their confessions to other, even horrific crimes. Here is how Mabrey has set it up for us: If the back-on-our-streets offender says “I’m going to commit another crime,” it cannot be used against him in any way; he cannot be pulled out of the program as long as he expresses an interest in remaining “engaged” (an undefined term); if he then commits another crime and confesses to that crime, it cannot be used against him. Feel safer?
Whatever positive potential this bill may achieve must begin with significant amendments, including getting right with the Constitution by restoring discretion and veto power to the district attorney and the judge. Otherwise, we can add this bill to the long list of Democrat attempts to diminish accountability for those who victimize us.
George Brauchler is the former district attorney for the 18th Judicial District and is a candidate for district attorney in the newly created 23rd Judicial District. He has served as an Owens Early Criminal Justice Fellow at the Common Sense Institute. Follow him on Twitter(X): @GeorgeBrauchler.
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