Children on the playground at Black Forest Hills Elementary School in Aurora yelled “stranger danger!” as they ran away from a man who allegedly tried to kidnap an 11-year old child. The man accused of that crime, Soloman Galligan, was a registered sex offender.

At the time this happened in 2024, no one knew why Galligan stumbled onto the school grounds, but it made parents across Aurora hold their children a little closer that night.

Now, more than 460 days since his arrest, it appears Galligan’s case will be dismissed. Not due to a lack of evidence, or witness cooperation, or the many other reasons that criminal cases sometimes grind to a halt. No, Galligan’s case will be dismissed because a mental health evaluator determined he was incompetent to proceed and not likely to be restored in the future.

Incompetence in the criminal justice world means that, due to a mental disability of some kind, someone is unable to understand what is happening in court or help in their own defense.

Usually when this finding happens in a criminal case, the defendant is sent away for in-patient services like mental health treatment or medication that restores the person’s competency. This can be a lengthy and expensive process, full of procedural legal hurdles and delays that retraumatize victims. One recent example is the Boulder King Soopers mass murderer who was deemed incompetent to stand trial in 2021 and for nearly two years was able to stall the case against him.

When the news broke that Galligan could be released from jail and possibly back on the streets soon, the public was rightly outraged. As a father and the former district attorney who originally prosecuted Galligan, I was angry, too. Angry at the system that failed these kids and their parents, and the state legislature and governor who set it up in the first place.

So how could the criminal justice system let down the community so badly? There’s not one single silver bullet that will fix our state’s competency system and mental health crisis.

First, everyone should know the state is actually under a consent decree due to a federal lawsuit over its inadequate competency procedures, which resulted in hundreds of backlogged competency cases. These cases involved defendants sitting in jails, sometimes for over a year and with deteriorating mental conditions, waiting for a bed at the state’s in-patient mental health hospital in Pueblo. And because of the failure to bring the state in line with the requirements of that consent decree, the state has paid tens of millions of dollars in fines.

Next, if there were a mental health report card, Colorado would be failing. According to the Common Sense Institute, a nonpartisan think tank, Colorado had the second highest prevalence of mental illness in the county in 2024.

And according to Mental Health America, a national nonprofit organization, we rank 46th for overall mental health, including adults and children. Diving deeper into the numbers, it’s no surprise Colorado also ranks 48th in the country for substance abuse disorders, reflecting our permissive culture toward drugs.

Due to the state’s desire to resolve the competency case backlog and get out from underneath the consent decree, the legislature passed and Gov. Jared Polis signed House Bill 24-1034, titled “Adult Competency to Stand Trial.” The law made reckless changes to our failing competency system, including requiring the mandatory dismissal of charges if a defendant is deemed incompetent and not restorable, like Galligan. This change in law took away any semblance of discretion for the judge, prosecutor and even defense counsel, to address the unique situation of each defendant.

The dismissal is automatic even if the victim’s family and the district attorney object.

In Colorado Springs, another family is grappling with the brutal reality of a competency decision. According to the arrest affidavit, Kristy Kerst was in a McDonald’s drive-thru with her family when Joel Lang, in the vehicle behind her, ran into her car. When she went to confront him, Lang allegedly ran her over, dragging her hundreds of feet. Kerst tragically died at the scene.

For a tough-on-crime prosecutor such as 4th Judicial District Attorney Michael Allen, the decision to charge Lang with murder was probably an easy one. But the case quickly got hung up in competency proceedings. Now, despite Lang reportedly saying he ran over Kerst because he did not have insurance and wanted to get away, a mental health evaluator determined Lang was incompetent to proceed and not reasonably restorable. The judge had no choice under the law. Lang’s murder case was summarily dismissed a month ago.

Allen blasted the legislature and Polis for enacting the system that denied Kerst and her family justice. The governor responded in a way reminiscent of his recent two-step around the pedestrian bridge he claims to have never wanted. His spokesperson said, “Governor Polis is committed to making Colorado communities safer, and he’s signed several laws to do that, including providing more resources to local law enforcement, cracking down on auto and gun theft, and supporting crime prevention.” It’s the type of nonanswer that makes reasonable Coloradans question whether he cares about solving the competency issue.

The Lang case highlights a glaring hole in the law when someone is deemed incompetent and not restorable — the lack of a hand-off to the state hospital through a civil commitment.

A civil commitment means involuntary mental health treatment and is typically started by a county attorney, not the district attorney. It occurs when someone is determined to be a danger to themselves or others, a determination made by treatment providers. In the case of Lang, even though his criminal case is dismissed, it’s not yet known whether he will be civilly committed or for how long. That is simply unfair to victims and their loved ones.

This is not a new problem. In fact, I was part of a bipartisan group of district attorneys who wrote about this very issue two years ago and pushed for legislative reform so that a finding of permanent incompetence triggers automatic admission and care at a mental health facility. We need this change in law to ensure the safety of our communities and to improve the treatment of those with significant mental health disorders.

House Bill 24-1034 also made changes that push more incompetent defendants out of jail into out-patient facilities for restoration services. Getting defendants out of jail helps ease the backlog and helps bring the state in line with the consent decree, but it doesn’t necessarily serve the goal of public safety.

One such example involves the case of Eljiah Caudill, who left the Denver jail with the assistance of a state’s Bridges program — a program designed to connect offenders with outpatient mental health services. Tragically, two months later, Caudill is alleged to have stabbed four people on the 16th Street Mall in Denver, killing two innocent people.

The path to a safer Colorado requires the legislature to reverse course.

Change the law to ensure judges have discretion to make decisions about individual cases involving competency, rather than requiring dismissal of cases. Next, we need automatic admission to in-patient beds and mandated treatment for those found to be permanently incompetent.

Finally, we need more inpatient beds in the state’s mental health hospital, which requires meaningful funding from the legislature. Inpatient services are now offered at the Colorado Mental Health Hospital in Pueblo and in the Arapahoe County jail through the Restoring Individuals Safely and Effectively (RISE) program. That’s it.

The RISE program has 94 beds but only funding for about 70. A bold vision for fixing the competency system involves expanding the state hospital by building a facility in the greater Denver metro area, rather than relying on the local jail. Not only could such a facility serve the needs of mentally ill defendants and make our state safer, but it could tap into the world-class medical practitioners produced at the nearby Anschutz Medical Campus.

These are difficult challenges to address, but for the sake of public safety and a state mired in a mental health crisis, more can and should be done.

John Kellner is the former district attorney for Colorado’s 18th Judicial District and an Owens-Early Criminal Justice Fellow at the Common Sense Institute. He is the managing partner at Dan Caplis Law, specializing in catastrophic injury and wrongful death cases.