Colorado § 16-8-120 - Applicable tests for release.

§ 16-8-120. Applicable tests for release.

(1) As to any person charged with any crime allegedly committed on or after June 2, 1965, the test for determination of a defendant's sanity for release from commitment, or the defendant's eligibility for conditional release, is: "That the defendant has no abnormal mental condition that would be likely to cause the defendant to be dangerous either to the defendant's self or to others or to the community in the reasonably foreseeable future".

(2) As to any person charged with any crime allegedly committed prior to June 2, 1965, the test for determination of a defendant's sanity for release from commitment, or the defendant's eligibility for conditional release, is the test provided by law at the time of the alleged crime to determine the sanity or insanity of the defendant.

(3) As to any person charged with any crime allegedly committed on or after July 1, 1983, the test for determination of a defendant's sanity for release from commitment, or the defendant's eligibility for conditional release, is: "That the defendant has no abnormal mental condition that would be likely to cause the defendant to be dangerous either to the defendant's self or others or to the community in the reasonably foreseeable future, and is capable of distinguishing right from wrong and has substantial capacity to conform the defendant's conduct to requirements of law".

(4) As to any person charged with any crime allegedly committed on or after July 1, 1983, but before July 1, 1995, resulting in commitment by reason of impaired mental condition, the test for determination of a defendant's mental condition for release from commitment, or a defendant's eligibility for conditional release, is: "That the defendant has no abnormal mental condition that would be likely to cause the defendant to be dangerous either to the defendant's self or to others or to the community in the reasonably foreseeable future".

(5) As to a person charged with a crime allegedly committed on or after July 1, 2026:

(a) The 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 requirements of law.

Source: L. 72: R&RE, p. 232, § 1. C.R.S. 1963: § 39-8-120. L. 83: (3) added, p. 680, § 3, effective July 1; (4) added, p. 676, § 9, effective July 1. L. 95: (4) amended, p. 78, § 13, effective July 1. L. 2025: Entire section amended, (HB 25-1058), ch. 15, p. 57, § 23, effective August 6. L. 2026: (5) added, (SB 26-014), ch. 54, p. 232, § 5, effective April 20.

ANNOTATION

Law reviews. For article, "Legislative Update", see 12 Colo. Law. 1251 (1983). For article, "Not Guilty by Reason of Insanity: A Research Note", see 14 Colo. Law. 569 (1985).

Standard for determining eligibility for conditional release constitutional on its face. People v. Howell, 196 Colo. 408, 586 P.2d 27 (1978).

Section is not unconstitutionally vague. Glatz v. Kort, 650 F. Supp. 191 (D. Colo. 1984), aff'd, 807 F.2d 1514 (10th Cir. 1986).

The term "dangerousness" does not violate due process due to lack of specificity. People v. Hilton, 902 P.2d 883 (Colo. App. 1995).

Historically, the supreme court has considered mental health proceedings to be special statutory proceedings. People v. District Court, 192 Colo. 225, 557 P.2d 414 (1976).

The test for release under this section is a fair and rational standard. People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976).

And need not be same test applied to determine insanity at time of offense. A state is not required to apply the same standard to govern release of one previously found not guilty by reason of insanity as it applied in determining that he was insane at the time of offense. People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976).

Defendant was not denied due process by failure to apply as the standard for release the same test applied to determine whether he was insane several years earlier when the alleged crime was committed. People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976).

This section meets the due process requirements set by the United States supreme court, because it bases continued commitment on a finding of both mental disorder and dangerousness. People v. Parrish, 879 P.2d 453 (Colo. App. 1994).

The term "abnormal mental condition" according to its plain meaning includes a severe antisocial personality disorder, however such a disorder is manifested. People v. Hilton, 902 P.2d 883 (Colo. App. 1995).

Insanity test under this section and § 16-8-101 different. The general assembly has chosen by enactment of § 16-8-101 and this section to distinguish between the test in a criminal case for a verdict of not guilty by reason of insanity and the test for release from a mental institution once it is suggested that commitment might safely be terminated. People v. Lyles, 186 Colo. 302, 526 P.2d 1332 (1974).

The purpose of the test for release under this section is to determine whether a person who previously claimed he was criminally insane, and therefore not accountable for actions which otherwise would be crimes, should now be set free. People v. Giles, 192 Colo. 240, 557 P.2d 408 (1976).

Stringent standards for release related to public safety. The more stringent standards for release applicable to the criminally committed defendant reflect the increased risk to the public associated with the release decision and, as in the case of automatic commitment, they are reasonably related to the state's interest in public safety. People v. Chavez, 629 P.2d 1040 (Colo. 1981).

For purposes of determining eligibility for release, the terms "mental disease or defect", as used in § 16-8-116, and "abnormal mental condition", as used in this section, are equivalent. People v. Parrish, 879 P.2d 453 (Colo. App. 1994); Parrish v. State of Colo., 78 F.3d 1473 (10th Cir. 1996).

Potential dangerousness of a defendant is an essential element in determining his eligibility for release. Evidence regarding conditions of release recommended to reduce that dangerousness is, therefore, directly related to a fact of consequence to the determination of the action. Vialpando v. People, 727 P.2d 1090 (Colo. 1986).

Determination of dangerousness function of jury. Although a court should take full advantage of the expert psychiatric and psychological testimony offered by parties as to the element of danger, the ultimate determination of whether one has an abnormal mental condition likely to cause him to be dangerous in the reasonably foreseeable future is for the jury. People v. Howell, 196 Colo. 408, 586 P.2d 27 (1978).

Probable future conduct may be considered in determination of dangerousness. The fact that the determination of dangerousness involves a prediction of the appellant's future conduct rather than mere characterization of his past conduct does not violate due process, since the required finding is the likelihood of dangerous conduct in terms of probability, not mere possibility. People v. Howell, 196 Colo. 408, 586 P.2d 27 (1978).

Application of statutory test within expertise of qualified expert clinical psychologist. Where witness was qualified by the court as an expert clinical psychologist, the application of the statutory test for release specified in this section is within his expertise, and, with the proper foundation and questions, he may give his professional opinion as to whether a patient suffers from "an abnormal mental condition". People v. Lyles, 186 Colo. 302, 526 P.2d 1332 (1974).

A defendant is not required to submit the matter of his eligibility for release to a second jury trial before he may be released. People ex rel. Farina v. District Court, 191 Colo. 225, 553 P.2d 394 (1976).

Where defendant was determined eligible for release from the hospital in a hearing in one county, the doctrine of collateral estoppel applied, and a hearing on the same issue scheduled in another county was precluded. People ex rel. Farina v. District Court, 191 Colo. 225, 553 P.2d 394 (1976).

A person confined pursuant to a not guilty by reason of insanity plea may not be released under this section so long as that person remains under the effects of a treatable abnormal mental condition rendering such person dangerous and such person continues to receive appropriate treatment for that abnormality. People v. Jones, 935 P.2d 28 (Colo. App. 1996).

Applied in Campbell v. District Court, 195 Colo. 304, 577 P.2d 1096 (1978).