Restorability
If the court finds the defendant incompetent to proceed, that finding does not automatically mean the defendant begins restoration services. If, at any time, an evaluator opines that “there is not a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future,” the court must set a restoration hearing pursuant to § 16-8.5-111(4) to determine whether the defendant is restorable to competency within the reasonably foreseeable future. § 16-8.5-111(4). As a result of SB 25-041, parties now have a right to request a second opinion on the defendant’s competency and restorability within fourteen days of receiving a court-ordered competency report. § 16-8.5-111(4)(a)(II).
Prima Facie Case of Non-restorability
At a restoration hearing, an evaluator’s opinion, in a report or through testimony, that “there is not a substantial probability that the defendant, with restoration services, will attain competency within the reasonably foreseeable future” automatically establishes a prima facie case of incompetence and non-restorability. § 16-8.5-111(4)(c). Once this prima facie case of incompetence and non-restorability is established, the burden shifts to the prosecution to prove that “there is a viable restoration treatment that is substantially likely to restore the defendant to competency in the reasonably foreseeable future.” Id. The degree of burden on the prosecution increases depending the defendant’s diagnosis and the results of prior restoration attempts:
| Scenario | Burden on Prosecution |
| If the court has not yet ordered restoration services and restoration services have not been provided . . . | preponderance of the evidence that there is a viable restoration treatment that will restore the defendant to competency and a substantial probability that restoration efforts will be successful within the reasonably foreseeable future |
| If the defendant’s diagnosis includes a neurocognitive or neurodevelopmental impairment, whether or not co-occurring with a mental illness that substantially affects the defendant’s ability to gain or maintain competency . . . | clear and convincing evidence that there is a viable restoration treatment that is substantially likely to restore the defendant to competency in the reasonably foreseeable future |
| If the court has ordered restoration services and the court finds recent restoration services have been attempted and the defendant was not restored to competency . . . | clear and convincing evidence that the defendant, with continued restoration services, will attain competency in the reasonably foreseeable future and that the defendant can maintain competency through the adjudication of the case |
Id.
In practice, these burdens are especially difficult for prosecutors to meet. Preponderance of the evidence might seem like a low standard relative to beyond a reasonable doubt, but given the lack of clarity and certainty in the field of forensic psychiatry, it is a very high burden. You are even less likely to prove a defendant is restorable by “clear and convincing evidence.” Consult more experienced prosecutors in your office on whether and how you might be able to meet your burden at a restorability hearing.
Consequences of Non-Restorability
If, after a restorability hearing, the court “does not find that the party asserting that there is a substantial probability that the defendant, with restoration services, will attain competency in the reasonably foreseeable future,” statute dictates the court dismiss the case. § 16-8.5-111(5). The order to dismiss can be stayed for a period of time to permit the defendant be referred to Bridges Wraparound Care. The order to dismissal can also be stayed for 35 days and up to 175 days for certain serious offenses, to permit certain statutorily authorized persons, including the District Attorney, to attempt to civilly commit the defendant before the criminal case is dismissed. § 16-8.5-116.5(7), (8).