2021 Colorado Code
Title 17 - Corrections
Article 23 - Inmates With a Behavioral or Mental Health Disorder or an Intellectual and Developmental Disability - Transfer
§ 17-23-101. Transfer of an Inmate Who Has a Behavioral or Mental Health Disorder or an Intellectual and Developmental Disability

1. 1. The executive director, in coordination with the executive director of the department of human services, may only transfer an inmate who has a behavioral or mental health disorder or an intellectual and developmental disability and who cannot be safely confined in a correctional facility to an appropriate facility operated by the department of human services for observation and stabilization if the department of corrections follows the policy established pursuant to subsection (1)(b) of this section. The costs associated with care provided in the facility operated by the department of human services are charged to the department of human services.
   2. On or before August 1, 2015, the department of corrections shall develop and maintain a policy that provides for due process guarantees prior to the transfer of an inmate who cannot be safely confined in a correctional facility to a facility operated by the department of human services for observation and stabilization.

2. (Deleted by amendment,L. 2000, p. 846, § 43, effective May 24, 2000.)
3. The executive director of the department of human services may transfer to a correctional facility a person who is receiving care at the Colorado mental health institute at Pueblo or Fort Logan only if the person is serving a sentence to the department.
4. (Deleted by amendment,L. 2000, p. 846, § 43, effective May 24, 2000.)

History. Source: L. 77: Entire title R&RE, p. 926, § 10, effective August 1. L. 79: (1), (2), and (4) amended, p. 697, § 59, effective July 1. L. 91: (1), (3), and (4) amended, p. 1143, § 7, effective May 18. L. 94: (1) amended, p. 604, § 9, effective July 1; (3) amended, p. 2652, § 129, effective July 1. L. 2000: Entire section amended, p. 846, § 43, effective May 24. L. 2006: (1) and (3) amended, p. 1398, § 46, effective August 7. L. 2015: (1) and (3) amended,(HB 15-1269), ch. 117, p. 354, § 1, effective April 24. L. 2017: (1)(a) amended,(SB 17-242), ch. 263, p. 1303, § 132, effective May 25.

This section is similar to former § 27-23-101 as it existed prior to 1977.

1. For records required upon transfer, see § 17-1-108.
2. For the legislative declaration contained in the 1994 act amending subsection (3), see section 1 of chapter 345, Session Laws of Colorado 1994. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.

Annotator's note. Since § 17-23-101 is similar to repealed § 27-23-101 , and repealed CSA, C. 105, § 27(2), relevant cases construing those provisions have been included in the annotations to this section.

For exclusiveness of procedure outlined by this section, see Parker v. People, 108 Colo. 362 , 117 P.2d 316 (1941).

Confinement of insane persons is constitutional. The state as parens patriae has general power and is under the general duty of caring for insane persons. The prerogative is a segment of police power. In the exercise of such power, insane persons may be restrained and confined both for the welfare of themselves and for the protection of the public, and if the exactions of due process are met, such restraint and confinement do not violate any constitutional right of the individual. Pigg v. Patterson, 370 F.2d 101 (10th Cir. 1966).

Whether in a federal or state penal system, the disposition of those adjudicated criminally irresponsible is a matter of administrative determination which the federal courts should not undertake to supervise. Sound and practical reasons readily occur in support of the state's designation of the penitentiary as the appropriate place of confinement for those criminally insane who demonstrate dangerous or violent tendencies. One who has been adjudicated in a court of law to be criminally irresponsible, and duly committed thereupon, has no vested right to any particular place of institutionalization. Pigg v. Patterson, 370 F.2d 101 (10th Cir. 1966).

The procedures for transfer among the Colorado correctional institutions are valid, are discretionary with the officials concerned, and give rise to no duty the breach of which is cognizable in a § 1983 action for a violation of the federal Civil Rights Act. Coppinger v. Townsend, 398 F.2d 392 (10th Cir. 1968).

Therefore, state district court judge, superintendent of state hospital, and staff psychiatrist held protected by governmental immunity, in § 1983 action involving revocation of probation and transfer to state penitentiary, those acts being discretionary. Franklin v. Meredith, 386 F.2d 958 (10th Cir. 1967).

No patient may be involuntarily transferred to the penitentiary except upon a finding that he is so dangerous that he cannot be safely confined in the state hospital. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Subsection (3) authorizes involuntary transfer of the “dangerous”, not the nondangerous, high escape risk or the patient allegedly in danger from others. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Subsection (3) draws a perfect classification, and it has not been contended that in practice it is drawn less perfectly. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Therefore transfer and confinement in the penitentiary, in and of themselves, work no denial of equal protection even when subjected to strict scrutiny. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

The accusation that a patient is dangerous is not a criminal charge. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Therefore a proceeding at which the dangerousness issue is determined is not a criminal proceeding. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Patients at state hospital do not forfeit all constitutional rights. Just as the inmates of a prison do not forfeit all constitutional rights upon commitment, neither do the patients at the Colorado state hospital, although those rights retained may be somewhat restricted by the nature of the institutional environment. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Psychiatric care provided in penitentiary must be equivalent to that provided at state hospital. The state must provide patients transferred to the state penitentiary with psychiatric care and treatment substantially equivalent to that provided patients confined at the state hospital. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Or patients in penitentiary denied equal protection. Confinement of mental patients in the state penitentiary without psychiatric treatment substantially equivalent to that provided patients at the Colorado state hospital denies them equal protection of the laws. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

Dangerousness of patient does not provide rational basis for inferior treatment. Although the dangerousness of the patient may justify his transfer to, and incarceration in, the penitentiary, even when subjected to strict scrutiny, the classification does not provide a rational basis for inferior psychiatric treatment provided dangerous patients who are confined in the penitentiary. Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974 ).

An adjudication that an insane person has been restored to reason cannot be had in “habeas corpus” proceedings. Pigg v. Tinsley, 158 Colo. 160 , 405 P.2d 687 (1965).

Applied in Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. 1979 ); People v. White, 656 P.2d 690 (Colo. 1983).