Modification to Defense of Not Guilty by Reason of Insanity

SENATE BILL 26-014
BY SENATOR(S) Amabile, Cutter, Gonzales J., Kipp, Snyder, Wallace,
Coleman;
also REPRESENTATIVE(S) Rydin and Soper, Bacon, Clifford, Hamrick,
Jackson, McCluskie.
CONCERNING MODIFICATIONS TO THE AFFIRMATIVE DEFENSE OF NOT GUILTY
BY REASON OF INSANITY.

Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. In Colorado Revised Statutes, 16-8-108, amend (2)
as follows:
16-8-108. Examination at instance of defendant.
(2) A copy of any report of examination of the defendant made at
the instance of the defense shall MUST be furnished to THE COURT AND the
prosecution IN a reasonable time in advance of trial. UPON RECEIPT OF THE
REPORT OF EXAMINATION , THE COURT SHALL PROVIDE A COPY OF THE
REPORT TO THE DEPARTMENT OF HUMAN SERVICES.
SECTION 2. In Colorado Revised Statutes, 16-8-115, amend
NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
________
Capital letters or bold & italic numbers indicate new material added to existing law; dashes
through words or numbers indicate deletions from existing law and such material is not part of
the act.
(1)(a)(I) and add (1)(b.5) as follows:
16-8-115. Release from commitment after verdict of not guilty
by reason of insanity or not guilty by reason of impaired mental
condition - definitions.
(1) (a) (I) Upon an initial commitment following a finding of not
guilty by reason of insanity pursuant to section 16-8-105.5 (4)(b), or upon
delaying final entry of the finding of not guilty by reason of insanity
pursuant to section 16-8.5-105.5 (4)(a) SECTION 16-8-105.5 (4)(a), the court
shall schedule an initial release hearing no later than one hundred twenty
days after the initial commitment. The court shall order the department of
human services to complete a release examination no later than thirty days
prior to the initial release hearing. The defendant may request an additional
release examination by a medical expert in mental health disorders of the
defendant's choosing pursuant to section 16-8-108. The court may continue
the hearing beyond one hundred and twenty days upon a finding of good
cause or if necessary to conduct a second evaluation of the defendant.
(b.5) AT ANY UNCONDITIONAL RELEASE HEARING FOR A DEFENDANT
WHO IS ON ANY CONDITIONAL RELEASE , IF ANY EVIDENCE IS INTRODUCED
THAT SHOWS THE DEFENDANT IS INELIGIBLE FOR UNCONDITIONAL RELEASE,
THE DEFENDANT HAS THE BURDEN OF PROVING BY A PREPONDERANCE OF THE
EVIDENCE THAT THE DEFENDANT MEETS THE APPLICABLE TEST FOR
UNCONDITIONAL RELEASE PURSUANT TO SECTION 16-8-120. IF THE COURT
FINDS THE DEFENDANT ELIGIBLE FOR UNCONDITIONAL RELEASE, THE COURT
SHALL ORDER THE UNCONDITIONAL RELEASE OF THE DEFENDANT . IF THE
COURT FINDS THE DEFENDANT INELIGIBLE FOR UNCONDITIONAL RELEASE ,
THE COURT SHALL ORDER CONTINUED CONDITIONAL RELEASE AND MAY
IMPOSE OR MODIFY SUCH TERMS AND CONDITIONS AS THE COURT
DETERMINES ARE IN THE BEST INTEREST OF THE DEFENDANT AND THE
COMMUNITY AND SHALL NOTIFY THE DISTRICT ATTORNEY OF THE ORDER.
SECTION 3. In Colorado Revised Statutes, amend 16-8-117 as
follows:
16-8-117. Advisement on matters to be determined.
When a determination is to be made as to a defendant's eligibility for
CONDITIONAL OR UNCONDITIONAL release, the court shall explain to the
PAGE 2-SENATE BILL 26-014
defendant the nature and consequences of the proceeding and the rights of
the defendant pursuant to this section, including the defendant's right to a
jury trial upon the question of eligibility for CONDITIONAL OR
UNCONDITIONAL release. The defendant if the defendant wishes to contest
the question, may request a hearing that must be granted as a matter of right.
At the hearing, the defendant and the prosecuting attorney are entitled to be
present in person, to examine any reports of examination or other matter to
be considered by the court as bearing upon the determination, to introduce
evidence, summon witnesses, cross-examine witnesses for the other side or
the court, and to make opening and closing statements and argument. The
court may examine or cross-examine any witness called by the defendant or
prosecuting attorney and may summon and examine witnesses on its own
motion.
SECTION 4. In Colorado Revised Statutes, 16-8-118, amend (1)
introductory portion, (1)(a), (2)(a) introductory portion, (2)(a.5), (2)(b),
(2)(c), and (2)(d)(I) as follows:
16-8-118. Temporary removal and community placement for
treatment and rehabilitation.
(1) The chief officer of the institution where a defendant has been
committed under PURSUANT TO this article 8 or article 8.5 of this title 16, or
the chief officer's designee, may authorize treatment and rehabilitation
activities involving COMMUNITY PLACEMENT OF THE DEFENDANT OR
temporary physical removal of the defendant from the institution where the
defendant has been placed, if prior to the authorization the following
procedures are carried out:
(a) The chief officer, or the chief officer's designee, shall give
written notice by certified mail, with return receipt requested, to the
committing court and the district attorney that on or after thirty-five days
from the date of mailing the notice, the chief officer, or the chief officer's
designee, will authorize treatment and rehabilitation activities involving
COMMUNITY PLACEMENT OF THE DEFENDANT OR temporary physical
removal of the defendant from the institution, unless THE CHIEF OFFICER, OR
THE CHIEF OFFICER 'S DESIGNEE , RECEIVES written objections to the
authorization are received by the chief officer, or the chief officer's
designee, within thirty-five days from AFTER the date of mailing the notice.
PAGE 3-SENATE BILL 26-014
(2) (a) A court shall order any A defendant who receives treatment
and rehabilitation activities involving COMMUNITY PLACEMENT OF THE
DEFENDANT OR temporary physical removal of the defendant from the
institution to register with the local law enforcement agency of the
jurisdiction in which WHERE the defendant resides if the court finds that:
(a.5) A court may order any A defendant who receives treatment and
rehabilitation activities involving COMMUNITY PLACEMENT OF THE
DEFENDANT OR temporary physical removal of the defendant from the
institution to register with the local law enforcement agency of the
jurisdiction where the defendant resides if the court finds that the chief
officer of the institution where the defendant has been committed, or the
chief officer's designee, recommends registration based on information
obtained from the defendant during the course of treatment that indicates
the defendant has committed an offense involving unlawful sexual
behavior.
(b) Prior to COMMUNITY PLACEMENT OR temporary physical removal
from the institution of any A defendant who is required to register pursuant
to this subsection (2), the department of human services shall obtain from
the defendant the address where the defendant plans to reside and the
department shall notify the local law enforcement agency of the jurisdiction
where the defendant plans to reside and the Colorado bureau of
investigation as provided in section 16-8-115 (4)(c).
(c) Any A defendant required to register pursuant to this subsection
(2) shall register as provided in section 16-8-115 (4). The local law
enforcement agency shall transmit any registrations received pursuant to
this subsection (2) to the Colorado bureau of investigation within three
business days following AFTER receipt. The Colorado bureau of
investigation shall include any registration information received pursuant
to this section in the central registry established pursuant to section
16-22-110 and shall specify that the information applies to a defendant
required to register as a condition of COMMUNITY PLACEMENT OR temporary
physical removal from an institution. The forms completed by defendants
A DEFENDANT required to register pursuant to this subsection (2) shall be
ARE confidential and shall not be ARE NOT open to inspection except as
otherwise provided in section 16-8-115 (3)(e) for information pertaining to
persons granted conditional release and except as provided for release of
information to the public pursuant to sections 16-22-110 (6) and 16-22-112.
PAGE 4-SENATE BILL 26-014
(d) (I) Any A defendant required to register pursuant to this
subsection (2), upon completion of a period of not less than twenty years
from AFTER the date the defendant begins receiving treatment and
rehabilitation activities involving COMMUNITY PLACEMENT OF THE
DEFENDANT OR temporary physical removal of the defendant from the
institution, may petition the district court for an order that discontinues the
requirement for such registration and removes the defendant's name from
the central registry established pursuant to section 16-22-110. The court
may issue such AN order only if the court makes written findings of fact that
the defendant has neither been convicted nor found not guilty by reason of
insanity of an offense involving unlawful sexual behavior subsequent to
such THE COMMUNITY PLACEMENT OR temporary removal and that the
defendant would not pose an undue threat to the community if allowed to
live in the community without registration.
SECTION 5. In Colorado Revised Statutes, 16-8-120, add (5) as
follows:
16-8-120. Applicable tests for release.
(5) A S TO A PERSON CHARGED WITH A CRIME ALLEGEDLY
COMMITTED ON OR AFTER JULY 1, 2026:
(a) T HE STANDARD FOR UNCONDITIONAL RELEASE FROM
COMMITMENT IS: THE DEFENDANT HAS NO ABNORMAL MENTAL CONDITION
THAT WOULD BE LIKELY TO CAUSE THE DEFENDANT TO BE DANGEROUS TO
THE DEFENDANT'S SELF OR OTHERS OR TO THE COMMUNITY IN THE
REASONABLY FORESEEABLE FUTURE, AND THE DEFENDANT IS CAPABLE OF
DISTINGUISHING RIGHT FROM WRONG AND HAS SUBSTANTIAL CAPACITY TO
CONFORM THE DEFENDANT'S CONDUCT TO REQUIREMENTS OF LAW.
(b) THE STANDARD FOR CONDITIONAL RELEASE FROM COMMITMENT
IS: WITHOUT THE IMPOSITION OF AND COMPLIANCE WITH CONDITIONS, THE
DEFENDANT IS INELIGIBLE FOR RELEASE, BUT WITH THE IMPOSITION OF AND
COMPLIANCE WITH CONDITIONS , THE DEFENDANT HAS NO ABNORMAL
MENTAL CONDITION THAT WOULD BE LIKELY TO CAUSE THE DEFENDANT TO
BE DANGEROUS TO THE DEFENDANT'S SELF OR OTHERS OR TO THE
COMMUNITY IN THE REASONABLY FORESEEABLE FUTURE , AND THE
DEFENDANT IS CAPABLE OF DISTINGUISHING RIGHT FROM WRONG AND HAS
SUBSTANTIAL CAPACITY TO CONFORM THE DEFENDANT'S CONDUCT TO THE
PAGE 5-SENATE BILL 26-014
REQUIREMENTS OF LAW.
SECTION 6. Safety clause. The general assembly finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, or safety or for appropriations for
the support and maintenance of the departments of the state and state
institutions.
____________________________ ____________________________
James Rashad Coleman, Sr. Julie McCluskie
PRESIDENT OF SPEAKER OF THE HOUSE
THE SENATE OF REPRESENTATIVES
____________________________ ____________________________
Esther van Mourik Vanessa Reilly
SECRETARY OF CHIEF CLERK OF THE HOUSE
THE SENATE OF REPRESENTATIVES
APPROVED________________________________________
(Date and Time)
_________________________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 6-SENATE BILL 26-014