2023 Colorado Revised Statutes › Title 16 - CRIMINAL PROCEEDINGS (§§ 16-1-101 — 16-23-105) › CODE OF CRIMINAL PROCEDURE (§§ 16-1-101 — 16-13-1002) › Article 8 - INSANITY - RELEASE (§§ 16-8-101 — 16-8-301) › Part 1 - GENERAL PROVISIONS (§§ 16-8-101 — 16-8-122) › Section 16-8-115 - Release from commitment after verdict of not guilty by reason of insanity or not guilty by reason of impaired mental condition

(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), the court shall schedule an initial release hearing no later than one hundred and twenty days from 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.
(II)
The court shall conduct the initial release hearing. At the initial release hearing, if any evidence is introduced that shows the defendant is ineligible for conditional release, the defendant has the burden of proving by a preponderance of the evidence that the defendant meets the applicable test for conditional release pursuant to section 16-8-120. If the court finds the defendant eligible for conditional release, the court may impose such terms and conditions as the court determines are in the best interest of the defendant and the community. If the court finds the defendant ineligible for conditional release, the court shall commit or continue the previous commitment of the defendant to the physical custody of the department of human services.
(III)
This subsection (1)(a) applies to individuals found not guilty by reason of insanity on or after September 1, 2022.
(b)
Following the initial release hearing pursuant to subsection (1)(a) of this section, the court may order a release hearing at any time on its own motion, on motion of the prosecuting attorney, or on motion of the defendant. The court shall order a release hearing upon receipt of the report of the chief officer of the institution in which the defendant is committed that the defendant no longer requires hospitalization, as provided in section
16-8-116
. Except for the initial release hearing, unless the court for good cause shown permits, the defendant is not entitled to a hearing within one year subsequent to a previous hearing.
(c)
Beginning September 1, 2022, the chief officer of the institution in which the defendant is committed shall annually submit a release examination report to the court certifying whether the defendant continues to meet the criteria for ongoing inpatient hospitalization or meets the applicable test for release pursuant to section 16-8-120. The report must be submitted each year by the date on which the defendant was initially committed for inpatient hospitalization unless another release examination is ordered within the twelve months preceding such date. The release examination report must include the information required for a release examination pursuant to subsection (2.5) of this section. The institution shall provide a copy of the report to the defendant, the prosecuting attorney, and any other attorney of record. Upon receipt and after review of the report, the court may order a release hearing on its own motion, on motion of the prosecuting attorney, or on motion of the defendant.
(1.5)
(a)
Any victim of any crime or any member of such victim's immediate family, if the victim has died or is a minor, the perpetrator of which has been found not guilty by reason of insanity or not guilty by reason of impaired mental condition, shall be notified by the court in a timely manner prior to any hearing for release of the perpetrator held pursuant to subsection (1) of this section, if such victim or family member can reasonably be located. This paragraph (a) shall apply only to offenses committed before July 1, 1995.
(b)
Any victim of any crime or any member of such victim's immediate family, if the victim has died or is a minor, the perpetrator of which has been found not guilty by reason of insanity, shall be notified by the court in a timely manner prior to any hearing for release of the perpetrator held pursuant to subsection (1) of this section, if such victim or family member can reasonably be located. This paragraph (b) shall apply to offenses committed on or after July 1, 1995.
(2)
(a)
The court shall order a release examination of the defendant when a current one has not already been furnished or when either the prosecution or defense moves for an examination of the defendant at a different institution or by different experts. The court may order any additional or supplemental examination, investigation, or study that it deems necessary to a proper consideration and determination of the question of eligibility for release. The court shall set the matter for release hearing after it has received all of the reports that it has ordered under this section. When none of said reports indicates that the defendant is eligible for release, the defendant's request for release hearing shall be denied by the court if the defendant is unable to show by way of an offer of proof any evidence by a medical expert in mental disorders that would indicate that the defendant is eligible for release. For the purposes of this subsection (2), "medical expert in mental disorders" means a physician licensed under the provisions of article
240
of title
12
, a psychologist licensed under the provisions of article
245
of title
12
, a psychiatric technician licensed under the provisions of article
295
of title
12
, a registered professional nurse as defined in section
12-255-104(11)
, who by reason of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing, or a social worker licensed under the provisions of part 4 of article
245
of title
12
. The release hearing shall be to the court or, on demand by the defendant, to a jury of not to exceed six persons. At the release hearing, if any evidence of insanity is introduced, the defendant has the burden of proving restoration of sanity by a preponderance of the evidence; if any evidence of ineligibility for release by reason of impaired mental condition is introduced, the defendant has the burden of proving, by a preponderance of the evidence, that the defendant is eligible for release by no longer having an impaired mental condition. This subsection (2)(a) shall apply only to offenses committed before July 1, 1995.
(b)
The court shall order a release examination of the defendant when a current one has not already been furnished or when either the prosecution or defense moves for an examination of the defendant at a different institution or by different experts. The court may order any additional or supplemental examination, investigation, or study that it deems necessary to a proper consideration and determination of the question of eligibility for release. The court shall set the matter for release hearing after it has received all of the reports that it has ordered under this section. When none of the reports indicates that the defendant is eligible for release, the defendant's request for release hearing shall be denied by the court if the defendant is unable to show by way of an offer of proof any evidence by a medical expert in mental disorders that would indicate that the defendant is eligible for release. For the purposes of this subsection (2), "medical expert in mental disorders" means a physician licensed under the provisions of article
240
of title
12
, a psychologist licensed under the provisions of article
245
of title
12
, a psychiatric technician licensed under the provisions of article
295
of title
12
, a registered professional nurse as defined in section
12-255-104(11)
, who by reason of postgraduate education and additional nursing preparation has gained knowledge, judgment, and skill in psychiatric or mental health nursing, or a social worker licensed under the provisions of part 4 of article
245
of title
12
. The release hearing shall be to the court or, on demand by the defendant, to a jury composed of not more than six persons. At the release hearing, if any evidence that the defendant does not meet the release criteria is introduced, the defendant has the burden of proving by a preponderance of the evidence that the defendant has no abnormal mental condition that would be likely to cause the defendant to be dangerous either to himself or herself or to others or to the community in the reasonably foreseeable future. This subsection (2)(b) shall apply to offenses committed on or after July 1, 1995.
(2.5)
In addition to any other requirement pursuant to this section, The release examination report must include:
(a)
A summary of the materials reviewed, assessments conducted, and other bases of opinion rendered;
(b)
the defendant's current diagnosis and whether the defendant's symptoms of mental disease or defect are in remission;
(c)
Information about medications currently prescribed to the defendant and whether the defendant is compliant with taking the prescribed medications;
(d)
A summary of the treatment provided to the defendant since the last release examination, if applicable;
(e)
An initial assessment of the defendant's risk of reoffending, including a summary of the defendant's treatment needs by utilizing evidence-based standards of individualized treatment and management of people acquitted by reason of insanity;
(f)
A summary of the specific treatment options available to the defendant in the community and the specific treatment the defendant may receive at a facility designated by the executive director of the department of human services;
(g)
A summary of whether and how ongoing risks could be managed if placement in the community were granted; and
(h)
An opinion as to whether the defendant currently meets the applicable test for release, as described in section 16-8-120, citing specific facts and evidence supporting the opinion.
(3)
(a)
If the court or jury finds the defendant eligible for release, the court may impose such terms and conditions as the court determines are in the best interests of the defendant and the community, and the jury shall be so instructed. If the court or jury finds the defendant ineligible for release, the court shall recommit the defendant. The court's order placing the defendant on conditional release shall include notice that the defendant's conditional release may be revoked pursuant to the provisions of section
16-8-115.5
.
(b)
When a defendant is conditionally released, the chief officer of the institution in which the defendant is committed shall forthwith give written notice of the terms and conditions of such release to the executive director of the department of human services and to the director of any behavioral health safety net provider that may be charged with continued treatment of the defendant. The director of such behavioral health safety net provider, shall make written reports every three months to the executive director of the department of human services and to the district attorney for the judicial district where the defendant was committed and to the district attorney for any judicial district where the defendant may be required to receive treatment concerning the treatment and status of the defendant. Such reports shall include all known violations of the terms and conditions of the defendant's release and any changes in the defendant's mental status that would indicate that the defendant has become ineligible to remain on conditional release as defined in section
16-8-102
(4.5).
(c)
A defendant who has been conditionally released remains under the supervision of the department of human services until the committing court enters a final order of unconditional release. When a defendant fails to comply with any conditions of his release requiring him to establish, maintain, and reside at a specific residence and his whereabouts have therefore become unknown to the authorities charged with his supervision or when the defendant leaves the state of Colorado without the consent of the committing court, the defendant's absence from supervision shall constitute unauthorized absence, as defined in section 18-8-208.2. Such offense occurs in the county in which the defendant is authorized to reside.
(d)
Any terms and conditions imposed by the court on the defendant's release and the defendant's mental status shall be reviewed at least every twelve months unless the court sooner holds a release hearing as provided in this section.
(e)
As long as the defendant is granted conditional release and is subject to the provisions thereof, there shall be free transmission of all information, including clinical information regarding the defendant, among the department of human services, the appropriate behavioral health safety net providers, and appropriate district attorneys, law enforcement, and court personnel.
(4)
(a)
In addition to any terms and conditions of release imposed pursuant to subsection (3) of this section, a court shall order a defendant, as a condition of release, to register with the local law enforcement agency of the jurisdiction in which the defendant resides if the court finds that:
(I)
The defendant was found not guilty by reason of insanity on a charge of an offense involving unlawful sexual behavior; or
(II)
The defendant was found not guilty by reason of insanity on a charge of any other offense, the underlying factual basis of which includes an offense involving unlawful sexual behavior.
(a.5)
In addition to any terms and conditions of release imposed pursuant to subsection (3) of this section, a court may order a defendant, as a condition of release, to register with the local law enforcement agency of the jurisdiction in which the defendant resides if the court finds that the chief officer of the institution in which the defendant has been committed 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)
The court's order placing the defendant on conditional release shall include notice of the requirement to register. The court's order, at a minimum, shall specify:
(I)
The time period following release within which the defendant shall register with the local law enforcement agency;
(II)
The time period following a change of residence within which the defendant shall reregister with the local law enforcement agency of the jurisdiction in which the defendant resides;
(III)
The frequency with which the defendant must reregister with the local law enforcement agency of the jurisdiction in which the defendant resides to provide a periodic verification of the defendant's location;
(IV)
Any other circumstances under which the defendant must reregister with the local law enforcement agency of the jurisdiction in which the defendant resides.
(c)
Prior to release of any defendant who is required to register as a condition of release pursuant to this subsection (4), the department of human services shall obtain from the defendant the address at which the defendant plans to reside upon release. At least two days prior to release of the defendant, the department of human services shall notify the local law enforcement agency of the jurisdiction in which the defendant plans to reside upon release and the Colorado bureau of investigation of the anticipated release of the defendant and shall provide to the local law enforcement agency and the Colorado bureau of investigation the address at which the defendant plans to reside, a copy of the court order establishing the condition to register pursuant to this section, and any other pertinent information concerning the defendant.
(d)
If the defendant plans to reside within the corporate limits of any city, town, or city and county, the defendant shall register at the office of the chief law enforcement officer of the city, town, or city and county. If the defendant plans to reside outside of such corporate limits, the defendant shall register at the office of the county sheriff of the county in which the defendant plans to reside.
(e)
A defendant who registers with a local law enforcement agency as a condition of release pursuant to this subsection (4) shall register using forms provided by the local law enforcement agency and shall provide the information requested by the local law enforcement agency, including at a minimum a photograph and a complete set of fingerprints.
(f)
The local law enforcement agency shall transmit any registrations received pursuant to paragraph (e) of this subsection (4) to the Colorado bureau of investigation within three business days following 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 release pursuant to this section. The forms completed by defendants required to register as a condition of release pursuant to this subsection (4) shall be confidential and shall not be open to inspection except as provided in paragraph (e) of subsection (3) of this section and except as provided for release of information to the public pursuant to sections
16-22-110(6)
and
16-22-112
.
(g)
As used in this subsection (4), "an offense involving unlawful sexual behavior" means any of the following offenses:
(I)
(A)
Sexual assault, in violation of section
18-3-402
, C.R.S.; or
(B)
Sexual assault in the first degree, in violation of section
18-3-402
, C.R.S., as it existed prior to July 1, 2000;
(II)
Sexual assault in the second degree, in violation of section
18-3-403
, C.R.S., as it existed prior to July 1, 2000;
(III)
(A)
Unlawful sexual contact, in violation of section
18-3-404
, C.R.S.; or
(B)
Sexual assault in the third degree, in violation of section
18-3-404
, C.R.S., as it existed prior to July 1, 2000;
(IV)
Sexual assault on a child, in violation of section
18-3-405
, C.R.S.;
(V)
Sexual assault on a child by one in a position of trust, in violation of section
18-3-405.3
, C.R.S.;
(VI)
Sexual assault on a client by a psychotherapist, in violation of section
18-3-405.5
, C.R.S.;
(VII)
Enticement of a child, in violation of section
18-3-305
, C.R.S.;
(VIII)
Incest, in violation of section
18-6-301
, C.R.S.;
(IX)
Aggravated incest, in violation of section
18-6-302
, C.R.S.;
(X)
Human trafficking of a minor for sexual servitude, as described in section
18-3-504(2)
, C.R.S.;
(XI)
Sexual exploitation of children, in violation of section
18-6-403
, C.R.S.;
(XII)
Procurement of a child for sexual exploitation, in violation of section
18-6-404
, C.R.S.;
(XIII)
Indecent exposure, in violation of section
18-7-302
, C.R.S.;
(XIV)
Soliciting for child prostitution, in violation of section
18-7-402
, C.R.S.;
(XV)
Pandering of a child, in violation of section
18-7-403
, C.R.S.;
(XVI)
Procurement of a child, in violation of section
18-7-403.5
, C.R.S.;
(XVII)
Keeping a place of child prostitution, in violation of section
18-7-404
, C.R.S.;
(XVIII)
Pimping of a child, in violation of section
18-7-405
, C.R.S.;
(XIX)
Inducement of child prostitution, in violation of section
18-7-405.5
, C.R.S.;
(XX)
Patronizing a prostituted child, in violation of section
18-7-406
, C.R.S.; or
(XXI)
Criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in this paragraph (g).
(h)
Any condition imposed pursuant to this subsection (4) shall be in addition to any conditions that may be imposed pursuant to subsection (3) of this section and shall be subject to monitoring, review, and enforcement in the same manner as any condition imposed pursuant to subsection (3) of this section.
(i)
(I)
Any defendant required to register as a condition of release pursuant to this subsection (4), upon completion of a period of not less than twenty years from the date the defendant is placed on conditional release, 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 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 his or her conditional release and that the defendant would not pose an undue threat to the community if allowed to live in the community without registration.
(II)
Upon the filing of a petition pursuant to this subsection (4)(i), the court shall set a date for a hearing on the petition. The defendant shall notify the local law enforcement agency with which the defendant is required to register and the prosecuting attorney for the jurisdiction in which the local law enforcement agency is located of the filing of the petition and the hearing date. The court shall notify the victim of the filing of the petition and the hearing date. At the hearing, the court shall give opportunity to the victim to provide written or oral testimony. If the court enters an order discontinuing the defendant's duty to register, the defendant shall send a copy of the order to the local law enforcement agency and the Colorado bureau of investigation.
Amended by 2022 Ch. 222, § 220, eff. 7/1/2024.
Amended by 2023 Ch. 298,§ 3, eff. 10/1/2023.
Amended by 2022 Ch. 438, § 2, eff. 8/10/2022.
Amended by 2019 Ch. 136, § 84, eff. 10/1/2019.
Amended by 2019 Ch. 296, § 1, eff. 5/28/2019.
Amended by 2014 Ch. 282, § 10, eff. 7/1/2014.
L. 72: R&RE, p. 231, § 1. C.R.S. 1963: § 39-8-115. L. 81: (3) amended, p. 934, § 3, effective July 1; (1) amended, p. 938, § 1, effective September 1; (2) amended, p. 939, § 1, effective September 1. L. 83: (1) and (2) amended, p. 679, § 1, effective July 1; (2) amended, p. 676, § 8, effective July 1. L. 86: (2) amended, p. 736, § 1, effective March 13. L. 90: (1.5) added, p. 924, § 4, effective March 27. L. 94: (3)(a) amended, p. 1423, § 1, effective July 1; (3)(b), (3)(c), and (3)(e) amended, p. 2649, § 121, effective July 1. L. 95: (1.5) and (2) amended, p. 77, § 12, effective July 1. L. 2002: (4) added, p. 495, § 1, effective July 1; (4)(f) amended, p.1191, § 37, effective July 1. L. 2003: (4)(i)(I) amended, p. 1990, § 28, effective May 22. L. 2005: (4)(a) amended and (4)(a.5) added, p. 995, § 1, effective June 2. L. 2010: (4)(g)(X) amended, (SB 10-140), ch. 537, p. 537, § 4, effective April 21. L. 2012: (1) amended, (SB 12-175), ch. 850, p. 850, § 76, effective July 1. L. 2014: (4)(g)(X) amended, (HB 14-1273), ch. 1152, p. 1152, § 10, effective July 1. L. 2019: (4)(i)(II) amended, (HB 19-1064), ch. 2749, p. 2749, § 1, effective May 28; (2) amended, (HB 19-1172), ch. 1670, p. 1670, § 84, effective October 1.
2022 Ch. 438, was passed without a safety clause. See Colo. Const. art. V, § 1(3).
For the legislative declaration contained in the 1994 act amending subsections (3)(b), (3)(c), and (3)(e), see section 1 of chapter 345, Session Laws of Colorado 1994.