Dangerous criminals released in Colorado long before legislature passed controversial law, officials say

Calls are growing for Colorado Gov. Jared Polis to convene an emergency legislative session to change a law that requires judges to dismiss charges against offenders who are deemed incompetent and "unrestorable" and release them back on the street.

CBS News Colorado has highlighted several of these cases, including Solomon Galligan, who allegedly tried to kidnap a child from an Aurora school, Ephraim Debisa, who is accused of a violent attack in Greeley, Austin Benson, who authorities say opened fire in Arapahoe County, and Joel Lang who reportedly ran over Kirsty Kerst - a mother and grandmother - and dragged her to her death.

Kerst's daughter, Brittany Visage, is among nearly 6,000 people who signed a petition by the Colorado Parent Advocacy Network urging the Colorado District Attorneys' Council to join them in demanding a special legislative session.

"When he turned himself in, it was a huge sigh of relief for me. Now I can grieve. I can try to heal. But I haven't been able to heal because I'm trying to fight for the justice my mom deserves," said Visage.

State Sen. Barb Kirkmeyer joined Visage in calling for reforms. She voted for the 2024 law, along with every state senator and almost every member of the House. But she says it isn't working as it was intended: "We were told, and as we read through the bill and worked through this bill, that these individuals that committed these horrendous crimes would either be in a correctional facility or that they would be committed to an institution. Unfortunately, that is not what is going on with this law."

While critics blame the law, judges have been ordering the release of dangerous defendants for decades.

In 1972, the U.S. Supreme Court ruled that defendants who are found incompetent and unlikely to be restored in the foreseeable future must be released, no matter how serious the charges. The individuals should be civilly committed, but Colorado doesn't have enough facilities to place them. In 2018, the state was sued for holding some incompetent defendants in jail for years while they waited for a bed to open up. The state was ordered to pay $12 million a year until it addressed the issue.

State Sen. Judy Amabile says the law, which she sponsored, was an attempt to do that. She says about 350 people who have been deemed incompetent to stand trial are sitting in jail right now waiting to be placed in a treatment facility.

She says, for those with intellectual disabilities, brain injuries, and diseases like Alzheimer's, placements are nearly impossible. Amabile explained that many private facilities won't accept dangerous defendants, and the State Hospital is not an appropriate treatment setting.

"We don't have civil commitment beds for these categories of people," she said.

The law, Amabile says, was aimed at making it easier to find placements by, among other things, dismissing criminal charges that will never be prosecuted. "If the charges aren't dropped, it becomes a lot harder for that person to get a bed in a civil system," she added.

The Colorado District Attorneys' Council says DAs should be allowed to voluntarily dismiss a case after a person is committed and later refile charges should the defendant become competent. 

The law also limits how long law enforcement can hold people deemed incompetent to 35 days. While it allowed for extensions, Amabile says that wasn't clear to some courts: "Some courts thought somebody with an intellectual or developmental disability that the clock stopped at 35 days."

Amabile admits the law isn't perfect but suggests it's a red herring to blame that alone for dangerous defendants being released, "People are scoring political points on the backs of the victims of these crimes, but also on the backs of people who are sick."

The biggest issue, she says, is a lack of facilities to place the defendants, which will take money to remedy. "No victim of crime wants to hear it's too expensive for us to fix this problem. We cannot do that. Let's create a system that really does work where we can actually enhance public safety, where we can reduce the number of victims, and where the people who are sick can get the care they need."

Amabile is working on bills that would quickly open beds for emergency commitments as well as long-term placements. She is also looking to change and simplify the civil commitment process.

Right now, the Colorado District Attorneys' Council says a person is presumed "unrestorable" if one evaluator says they are, regardless of that evaluator's experience, skill, or credibility. The DAs' Council also wants criminal judges to certify a defendant for civil commitment. At this time, only county attorneys can. It says DAs and victims should also be allowed to provide input before a person is returned to the community.

Polis released a statement saying, "I would love to hear from people, including victims, about how Colorado can improve the competency process. I remain committed to improving public safety for everyone in Colorado and have directed the relevant state agencies to take action to ensure that individuals who are a danger to themselves and others are not released into the community. I demand action and am doing everything I can to drive all parties to improve this through legislation as soon as possible. This includes working directly with the district and county attorneys so that if charges are dismissed due to competency, the state works in partnership with local governments and the judicial branch to provide services like civil commitment, where appropriate, care coordination, rehabilitation, guardianship, and secure placement. We're pursuing short-term actions as we pursue more comprehensive long-term solutions in partnership with the legislature, local leaders, law enforcement, district attorneys and others to further strengthen options to protect public safety."