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The Dire Consequences of Pleading Not Guilty by Reason of Insanity in Colorado

People found not guilty by reason of insanity are sent to Colorado’s mental health hospital ostensibly for treatment. Here, a look inside one man’s three-year-long struggle for freedom.

The nurses were plotting against him. He could hear them whispering. He knew he had to escape his room in the ICU at Lakewood’s St. Anthony Hospital before they killed him. David Hoffschneider ripped out his IV and catheter, put on his clothes, and walked into the hallway. He didn’t make it far before hospital staff stopped him.

Six days earlier, the 34-year-old, a recovering heroin addict, had picked up his methadone from the clinic as he had done every morning for about two years. That night, July 2, 2016, he swallowed some extra medication and a Xanax to help him sleep, something he says he’d done before with no issues. This time was different. His father, David Varela, with whom Hoffschneider was living, found him asleep but struggling to breathe. Varela called an ambulance.

At St. Anthony, Hoffschneider was intubated and administered more than a dozen medications. His medical records indicate that on July 5 he developed agitated delirium—a state of fear, panic, and hyperactivity that can lead to respiratory arrest—and required sedation. As the drugs wore off on July 8, he grew increasingly apprehensive about the nursing staff and tried to escape. The next day, on the afternoon of July 9, he was discharged, without a psychiatric evaluation, into his father’s care.

Hoffschneider had never experienced delusions before, but his paranoia grew more intense after he left the hospital. As he approached his father’s garden-level apartment in Lakewood, he saw some neighbor kids playing outside. Once inside, he saw someone run by the window. He looked out and thought he saw one of the children’s mothers telling him that a drug cartel was after him. “I’m warning you,” she said. “They are going to get you.” Panicked, he asked his father to patrol the area around their home.

Hoffschneider’s mind was betraying him with false visions, but the fear was real. He loaded two guns and hid them out of his father’s sight. It was past midnight when Hoffschneider says he fired a “warning shot” toward the apartment’s wall. He thought the noise might make his neighbors call the police, who could, he believed, protect him from the cartel. Varela jolted awake to find a blank look on his son’s face and a ricocheted bullet hole in the front door. Hoffschneider fired again. A window in the living room shattered.

The gunfire had drawn the building’s other residents outside, and they had called the police, as Hoffschneider had hoped. But ambulances also had to be summoned: Two of Hoffschneider’s neighbors had been hit by the bullets. One woman was struck in her thigh; the other suffered a wound to her torso, where the slug lodged near her spine.

Convinced that the responding law enforcement officers were cartel members in disguise, Hoffschneider fired at least five additional shots over the next hour as Lakewood police surrounded the apartment. Varela ran outside around 1:35 a.m. after grabbing Hoffschneider’s 9 mm pistol. A silver Winchester rifle was still inside, though Varela had unloaded it, dropping the ammo into his pocket. As SWAT moved in—using explosives to breach the apartment and firing foam baton rounds—Hoffschneider picked up two knives for protection. A nearly seven-hour standoff ended with him on the kitchen floor, tased and handcuffed.

Americans are familiar with—and often fascinated by—cases in which alleged perpetrators have pleaded not guilty by reason of insanity (NGRI). People such as John Hinckley Jr., who attempted to assassinate President Ronald Reagan; Lorena Bobbitt, who cut off her husband’s penis after she says he sexually assaulted her; and the Aurora theater shooter, who unsuccessfully asserted insanity, have generated media frenzies. They’ve also caused the public to question the fairness and necessity of laws that say not everyone is equally culpable for criminal acts.

For more than two centuries, state legislatures across the United States have generally supported the idea that individuals with certain degrees of mental illness cannot be held criminally responsible for their actions and should be directed toward medical support, not incarceration. Although people are constitutionally entitled to be found competent to stand trial, the U.S. Supreme Court upheld in March 2020 the notion that there is no constitutional right to an insanity defense. Four states—Kansas, Utah, Idaho, and Montana—have done away with the NGRI defense entirely. Today, about one percent of all felony cases in the nation contain an insanity plea; of those, only around a quarter are successful.

Colorado continues to allow individuals to plead NGRI based on a very strict legal definition. David Hoffschneider’s lawyer thought his client was a good fit based on the details of the incident. Local attorneys and legal experts explain that the defense should only be considered in the most serious situations, because of the attendant repercussions: In the Centennial State, NGRI acquittees are automatically committed to the state psychiatric hospital for treatment. Unlike convicted criminals, who are sentenced for a set period of time, those who are deemed insane remain at the Colorado Mental Health Institute at Pueblo (CMHIP) until doctors and the courts agree they are stable and safe enough to reintegrate into the community. Under Colorado law, their sentences aren’t supposed to be influenced by the specifics of their alleged crimes, as they are in some other states. The amount of time to be served is the same for everyone: one day to life.

The state psychiatric hospital in Pueblo is a sprawling campus of brick buildings that covers 300 acres in the northwest corner of the city. Originally known as the Colorado State Insane Asylum when it opened in October 1879, it has grown and shrunk and adapted over the past 142 years. Inside one of the newest structures, the high-security Robert L. Hawkins Building, which opened in 2009, patients are allowed a specific number of clothing articles and books; smartphones are forbidden; showers are restricted to certain hours; and rooms are sparsely outfitted with a bed and a nightstand. There’s a small courtyard where patients can access fresh air and sunshine but very little real freedom. Of the 434 people residing at CMHIP as of mid-August—the majority of whom were court-ordered to the facility—130 were insanity acquittees. Until early July, David Hoffschneider was one of them.

Following his arrest in his father’s apartment, Hoffschneider had been taken back to St. Anthony, where his delusions continued. It took about a week for the medications to leave his system and for the false perceptions to recede, though it would be another two months until the paranoia fully faded. It wasn’t until his arraignment, five days after the shooting, that he learned he’d wounded two people, both of whom survived.

When Hoffschneider pleaded NGRI, the district court ordered competency and insanity evaluations, tests performed by medical experts that can be slow to take place due, in part, to the state and judicial system’s molasseslike pace. A CMHIP psychologist carried out the latter assessment in October 2017; in the official report, he stated Hoffschneider had developed ICU delirium—a rather common but acute condition from which individuals usually recover—and was legally insane at the time of the offense. In short: The medical interventions in the ICU that were supposed to help him recover from a bad drug interaction had instead sickened Hoffschneider’s mind. After reviewing the expert opinion, the judge accepted the NGRI defense and committed Hoffschneider to the Colorado Department of Human Services, which sent him to Pueblo. He walked through the front doors of the Hawkins maximum-security facility in October 2018.

By law, patients like Hoffschneider are confined to CMHIP in order to receive care that may eventually enable them to rejoin society. That treatment might include group therapy to help reduce recidivism risk and improve cognitive skills, individual therapy to address past trauma, the use of medications to regulate psychosis or depression, and frequent check-ins with psychiatrists and psychologists. At least, that’s how it should work in an ideal setting, says Dr. Elissa Ball, a forensic psychiatrist who worked at CMHIP from 1985 to 2015, including stints as the chief of forensic psychiatry and chief of medicine. “Higher-risk [patients] probably need to do every treatment you’re capable of providing,” she says. “People who’ve been assessed as low-risk should be moved much more quickly…. It’s not rocket science.”

When Hoffschneider pleaded NGRI to eight charges, including six felony counts—the most serious of which were class 2, the second-most-serious category in Colorado—he expected to be placed in that low-risk category and leave the hospital in less than a year. (He also pleaded guilty to possession of a weapon by a prior offender, but his sentence of one year in the Department of Corrections was waived for time already served in jail while awaiting the judge’s decision on his NGRI plea.) He assumed, that is, that CMHIP doctors would look at his medical records, recognize that ICU delirium likely caused his behavior, treat him for any remaining issues, and ultimately send him home. “It was medical. It wasn’t a mental illness. I thought when I came here, they’d see that,” Hoffschneider says. “I never thought for a second they would intentionally try to keep me here.”

Instead, he’d spend the next three years consumed by attempts to get released. Eventually, in October 2020, he filed a civil lawsuit in federal district court against 21 CMHIP employees for violating his 14th Amendment rights to life, liberty, and due process and conspiring to block his release from CMHIP—in part by inventing a mental illness he says he never had.

David Hoffschneider in Littleton this past September. Photo Daniel J. Brenner

A significant percentage of CMHIP patients have at least one diagnosed major mental disorder. These individuals may have committed heinous crimes in connection with their illnesses. In some situations, long-term inpatient care at the state mental health hospital may be necessary to protect them from themselves and to keep the public safe. But that’s not always the case. Some patients, like Hoffschneider, whose hospital paperwork stated he had “no active symptoms of a psychiatric illness” upon arrival, don’t fit neatly into the well-defined diagnostic categories providers at CMHIP are accustomed to treating. Experts say the desire to push all patients through a similar program regardless of their individual situations leads to problems.

Advocates such as Meghan Baker, a staff attorney at Disability Law Colorado, maintain the hospital’s treatment strategy has been not only nebulous and often one-size-fits-all, but also nearly nonexistent for some patients. Instead of individualization, there are certain therapy groups everyone is expected to complete, regardless of need. And, patients say, there are no progress benchmarks or clear path leading to release. They receive, on average, two to four hours of focused care per week, according to Baker, who regularly meets with CMHIP administrators as an employee of a federally funded nonprofit that helps monitor such facilities. “Some of [the treatment],” she says, “unfortunately ends up looking like crossword puzzles and coloring sheets.”

Hospital administrators see the program differently. They say there is no set treatment track for NGRI acquittees in order to allow for tailoring. After being stabilized with medication, if needed, CMHIP providers develop a Master Treatment Plan they say is customized for each patient’s needs; that blueprint is reviewed at least monthly, and the patient is ideally involved in those meetings. They are provided with short- and long-term goals so they can consistently move toward release, says CEO Jill Marshall: “With any patient, discharge planning starts at admission.”

The intention, according to CMHIP administrators, is that as patients work through their treatment plans, they gradually earn more privileges—like walking around campus unsupervised or getting a job in the canteen—and transition into less restrictive treatment units until they’re ready to begin a three-tiered reintegration process. The first level is community placement, during which a person lives outside of the hospital setting but is still officially “committed” to the venue; then comes conditional release, a parolelike situation in which commitment to the hospital is terminated. Finally, they may reach unconditional release, meaning they are completely clear of the courts. Individuals can first petition to begin this release process 182 days after their initial commitment is ordered.

The critical question is how long does it—and how long should it—take patients to reach each of these stages? No one has a definitive answer. Colorado’s insanity statute contains no safeguards for NGRI acquittees or mandated timelines for when any of these steps must occur. There are zero guidelines for how often cases should be reviewed by CMHIP administrators or the courts to ensure headway is being made or for how long either institution can take to make release-related decisions. Furthermore, the hospital has no coherent policies or published lists for what a patient needs to achieve to earn privileges, move to more autonomous housing, or start the reintegration process. It’s “arbitrary and completely unrelated to the patient’s individual needs,” Ball, the former CMHIP forensic psychiatrist, says. And that can lead to patients spending more time locked in the facility than is necessary.

Current administrators don’t agree with Ball’s assessment. “We’re an acute care hospital; we’re not a long-term care hospital,” says CMHIP’s chief clinical officer, Dr. Richard Pounds, a psychiatrist. “The pressure on me is to get people out of here. Those times when there’s any opportunity to progress people, we’re taking it. … Everything’s an incentive to get people out the door as fast as possible.”

Fast is relative. Data obtained through a Colorado Open Records Act (CORA) request show that NGRI acquittees remain at CMHIP for an average of 4.3 years. How they move through units, and how long those steps take, remains unclear. What is discernible is that there are individuals who have been at the hospital significantly longer, and those who work closely with this population say seven years is relatively common. Research by Michael Perlin, professor emeritus at New York Law School and founding director of the International Mental Disability Law Reform Project, shows NGRI acquittees across the country generally remain confined in state hospitals longer than they would have been imprisoned had they pleaded guilty and entered the traditional carceral system. “The less serious the crime, the greater the disparity is,” he says.

Data acquired from the Colorado Judicial Branch show that, since 2010, less than 40 percent of all NGRI court filings in the state involved at least one murder or attempted murder charge. Nearly a quarter of the cases in which insanity was presented included only class 5 felonies or below. (Most felonies are labeled from class 1—the most serious crimes, punishable by life in prison—down to class 6.) According to hospital data received via a CORA request, as of late August, 31 percent of NGRI patients at CMHIP had a maximum offense level of felony classes 4 to 6. “You need to supervise these folks, but there’s no reason to keep them in as long as they would have been in prison had they been convicted,” says Chris Slobogin, a professor of law at Vanderbilt University who helped update the mental health standards for the American Bar Association in 2016. “Most of the time, they could be let out a lot earlier, and they should be.”

Patients like Hoffschneider, who spent a year and a half in a high-security unit and was shackled at his wrists and legs whenever he traveled around campus, are left in a sort of purgatory—committed to a hospital with no clue as to when they’ll be able to leave. “There was no plan for me to progress,” Hoffschneider says. “It’s just until they feel like it, or until someone makes them.”

Hoffschneider isn’t the first patient to feel as if he were being warehoused in Pueblo. Twenty-two years ago, James Neiberger, an insanity acquittee who’d been at CMHIP for 25 years, filed a lawsuit with three other patients arguing that he was receiving little to no treatment and being unconstitutionally held at the facility. The initial filing grew into a class-action suit with roughly 50 others. Kathleen Mullen, the Denver lawyer who represented Neiberger, visited the facility at the time and says there was a lack of trained personnel to treat patients. “Systems don’t work,” she says, “unless there’s constant oversight.”

The hospital agreed to an $850,000 settlement in 2002, and most of the complainants were discharged after outside evaluators were brought in. The deal also required the hospital to increase staffing levels, establish a committee to automatically review cases after a full year in one unit, improve the grievance system for patient complaints (more than 2,000 have been filed annually, on average, over the past five years), and add more beds. CMHIP soon became a national model for forensic treatment.

Many of those positive changes have faded over the years, says Ball: “As soon as the external controls were taken away, the investment in providing good treatment went away.” From her perspective, the administration became more retributive in nature, and the focus on high-quality treatment was lost. The downward spiral led to her decision to retire early.

Pounds, who’s worked at CMHIP for more than 20 years, is adamant his staff isn’t punitive. When asked if punishment—patients needing to atone in some way for their crimes—plays a role in the hospital’s policies or treatment decisions, he responded, “Absolutely no.”

That doesn’t square with some patient and employee experiences. They believe who progresses and how quickly they do so isn’t consistent or based on achieving clinical milestones; instead, those decisions are strongly tied to how long someone has been in the program and whether the decision-makers like them as people. “They put the goal posts there for your release, and then when you reach them, they put the goal posts farther and make you do other things,” says Phillip Amabile, 38, who has been an NGRI patient at CMHIP since January 2019, after he was charged with attempted murder. “It’s like walking into a brick wall over and over again.”

More than one patient accused CMHIP employees of playing up minor infractions to impede advancement; some also expressed concerns that racial biases have negatively impacted their progress. Hospital officials declined to comment on individual cases but seem to recognize that reform is needed: CMHIP launched an NGRI planning committee to review its handling of these patients just before the pandemic began. No significant changes have yet been made.

Disability Law Colorado’s Meghan Baker in front of artwork her CMHIP clients have sent to her. Photo by Daniel J. Brenner

This punitive ethos may not be intentional, but Disability Law Colorado’s Baker and former staffers say it clearly exists. Baker says there is a deep-seated stigma among some staff members that their patients are criminals, even though state law declares otherwise. “It’s hard to get away from the inherent belief in our society that if you commit [a crime],” she says, “especially if it’s a more serious crime, that you have to pay some price.” Megan Chandler, a licensed psychologist and former CMHIP employee, points to an internal tug of war that’s “baked into a system that lacks identity as to whether it is primarily carceral or primarily restorative.”

That identity crisis likely isn’t the only factor contributing to sluggish patient progress. In June 2017, the Centers for Medicare & Medicaid Services—the national organization that oversees compliance with Medicare health and safety standards—threatened to shut down CMHIP after a complaint-triggered survey revealed that staffing shortages extending for more than six months were placing “all patients in jeopardy for serious harm.” One individual who was used as an example in the report had 36 group therapies canceled over a 3.5-month period, with no alternatives provided. Although emergency overtime pay and recruitment efforts helped keep the facility open, staffing problems persist.

According to data acquired via a CORA request, CMHIP had 252 vacant positions it was looking to fill as of mid-August, including spots for eight psychologists. That equates to 20 percent of the staff. “I train forensic psychiatrists,” says Dr. Richard Martinez, director of forensic psychiatry services at the University of Colorado Anschutz Medical Campus. “I have not been able to place one of my forensic psychiatrists at the state hospital [in the past five years].” He, and others, lay much of the blame on low salaries and CMHIP’s location in Pueblo.

Such workforce issues translate to a reduced quality of care. At least three units in CMHIP’s maximum-security building were temporarily closed this past August, partly due to staffing issues. That same month, a suicide attempt and an escape prompted an investigation by the Colorado Department of Public Health & Environment, which licenses the facility. Undertrained staff are sometimes put in charge of running groups, and one-on-one trauma therapy—or any kind of individual treatment—can be extremely limited. There was limited staff on the high-security unit while Hoffschneider was there, and some other units have lacked social workers in recent years.

The consequence, beyond potentially substandard treatment, is that patients may not be able to transition into less-restrictive units even when their treatment teams believe they are ready. “I realized how difficult it was to actually move or release anyone while working there,” Chandler says, “because the stars really had to align, resource-wise.”

One night in 2012, Nathan Ownby got drunk. He punched a few cars on his way home from a bar in Manitou Springs, and when the police showed up at his door, he refused to let them in. He was eventually arrested and sent to El Paso County Jail, where, a couple of months later, he began experiencing hallucinations. Ownby had struggled with anxiety and depression for a few years and believes he was on the wrong medication while incarcerated. During a particularly powerful period of delusions, in which he thought he was God and three guards were possessed by the devil, he spit water on the men. He was charged with three counts of assault 2, a class 4 felony. The 48-year-old has been at CMHIP for nine years. He attends two therapy groups each week: music and substance education.

There are far more people—roughly 10 times as many—with serious mental illnesses being held in jails and prisons than in state hospitals, according to the Treatment Advocacy Center, a national nonprofit that works to reduce barriers to mental health care. But mentally ill or not, when prisoners’ penal sentences end, they are released into the community. Neither the courts, nor the jails, nor the departments of corrections first assess the potential impact on public safety or their likelihood to commit other crimes.

That’s not the case with those declared insane by the courts in Colorado. To be released from CMHIP, NGRI acquittees like Ownby and Hoffschneider must be found to have “no abnormal mental condition which would be likely to cause him or her to be dangerous either to himself or herself or to others or to the community in the reasonably foreseeable future.” It’s all about probability, Slobogin, the law professor, says: “What if there’s a 50 percent chance this guy will do something? Does that give us grounds for keeping the person in or not? Some people would say one percent is too high. If that were true, we would have to keep everybody who’s in prison, in prison forever.”

Around 50 percent of people released from prison recidivate. National recidivism rates for NGRI acquittees are not tracked, but limited research suggests they’re lower than those of incarcerated individuals. “People who are found not guilty by reason of insanity face a larger uphill battle [to get released] than people who are not, even if their dangerousness or risk for violence is far lower than a person who might have committed the same offense and been put in prison,” says Neil Gowensmith, director of the Denver Forensic Institute for Research, Service and Training at the University of Denver. “It’s a totally different standard, and one that may be, at times, not just stigmatizing, but flat-out discriminatory.”

That standard is based partly on patients’ Violence Risk Assessments (VRAs). At CMHIP, a VRA is supposed to be completed within six months of an NGRI patient’s admission. The diagnostic tool considers patients’ health histories, criminal records, interviews with the patients and their family members, and a variety of risk factors (things like substance use history and consistency with medication) to determine their potential for posing a risk in the future. Those findings influence treatment plans and follow patients throughout their time in the hospital, potentially impacting how they’re perceived by CMHIP staff as well as their formal release evaluations and court hearings.

Hoffschneider’s record was far from clean. He’d compiled a significant rap sheet over a 15-year period that primarily coincided with his drug use; his record included four DUIs and two felony charges for burglary and theft. Still, one month after Hoffschneider was sent to CMHIP, a staff psychologist recommended he be fast-tracked through the system. Six months later, a VRA done by another CMHIP clinician declared Hoffschneider a high-risk patient, ranking him just under the cutoff for a psychopath—a characterization that may have created a barrier for his release and that at least two other members of his care team say they believe was incorrectly applied. (CMHIP declined to comment on Hoffschneider’s case, citing ongoing litigation.) The evaluation scored him in the category of male offenders and forensic patients who have a 78 percent likelihood of re-offending violently within 10 years.

Numerous studies have found that most people with serious mental illnesses are not violent and that when they are, it may not be the illness driving the behavior. Yet the question of perceived risk to oneself and the public is what guides courts’ understanding of insanity and forms the foundation for Colorado’s statute. “It essentially becomes not this personalized decision between a patient and their doctor, [but] a bureaucratic decision,” says one Denver criminal defense attorney who asked to remain nameless to protect the anonymity of clients.

The standard set by both state law and U.S. Supreme Court precedent is that continued confinement in a state psychiatric hospital is only justified when both dangerousness and mental illness are present. Determining the former involves a complicated guessing game that is based partly on science and partly on subjective opinion. Those who work in this area of the law and medicine say even experts’ abilities to estimate a person’s future threat potential are not great. “At some point, we have to give them a chance. We have to say, ‘OK, they’re rehabilitated, they’ve addressed the issues that brought them here,’ ” says one CMHIP staffer who asked to remain anonymous. “A lot of times I think the issues get broadened into other issues that don’t even pertain to why they came to the hospital in the first place. That is not fair. That is not justice.”

But no one—judge, doctor, district attorney—wants to be the one responsible for releasing an individual who then goes on to re-offend.

Colorado’s insanity laws were last updated in 1995, and those who rely on them say they could use some reworking. “The statute doesn’t tell anyone anything,” says Jennifer Longtin, a Denver-based criminal defense attorney who is representing Hoffschneider in his release hearings. “There needs to be a timeline for stuff like this. There needs to be a presumptive release date. We all need to know what the rules of the game are, because right now it’s very ill-defined.”

Advocates like Longtin are seeking reforms such as mandatory case review requirements and discretionary commitment, meaning the court can recommend community treatment, for example, instead of automatically sending someone to CMHIP indefinitely. Mental Health Colorado and Disability Law Colorado have drafted an NGRI reform bill that includes both of these recommendations. The state Legislature’s Joint Committee on the Treatment of Persons with Mental Health Disorders in the Criminal Justice System was voting on whether or not to move the bill forward at press time in mid-October.

There are models—including laws in other states—for these sorts of changes. And in Colorado, too: An April 2019 state Senate bill put CMHIP under a consent decree that sets time limits on how long people can wait to be evaluated to determine if they’re competent to stand trial so their court cases can move forward. (If a professional evaluation deems a person incompetent, he or she is sent for treatment in an attempt to return that person to competency; both the assessment and restoration work can occur at CMHIP.) The Department of Human Services is fined for every additional day that a person waits for that evaluation beyond 42 days—to the tune of $17 million so far.

There are no similar time constraints on CMHIP or the state judicial system when it comes to NGRI acquittees. As a result, it’s not uncommon for those patients to feel trapped while a bureaucratic game of hot potato plays out. “Even staff members were asking me at some points, ‘Why are you still here?’ ” says Jonathan, a former CMHIP patient who asked that his last name be omitted. The now 32-year-old had his first psychotic episode in 2010; while in a delusional state that made him believe the police were chasing him for a computer chip in his head, he caused a car accident that killed a man. He was at CMHIP for about four and a half years before earning community placement. “They [the staff] understood, and I understood, it was the paperwork, the court process.”

Even if Colorado’s statute is updated, though, the courts will remain the deciders in NGRI cases. Judges determine if acquittees should be approved for certain privileges. Judges say whether a release hearing can move forward after prosecuting attorneys motion for one or after patients petition for one, which they are allowed to do roughly six months after they’re admitted and once a year thereafter. They also decide if a patient can be released into the community. Those who wield gavels, however, are not mental health experts, so they lean on the recommendations of the CMHIP doctors who submit evaluations and testify during proceedings.

Hoffschneider submitted his first request for release in late November 2018. He stepped into a courtroom in December 2019. The 13-month lag occurred despite the fact that on the day he pleaded NGRI, Judge Tamara Russell said she expected to set a hearing soon because she assumed the hospital would find “he is not in need of any restoration” and that “he’s competent and not insane.”

During that December hearing, CMHIP’s expert, Dr. Lennart Abel, a staff psychiatrist who no longer works at the facility, testified—after meeting with Hoffschneider for less than two hours—that the patient had a personality disorder with antisocial and narcissistic traits and polysubstance use disorder. It was the first time Hoffschneider had received any diagnosis of mental illness beyond the acute delirium he experienced during and after his ICU stay. A personality disorder was not mentioned in two previous court-ordered evaluations. There is also no record of hospital staff complaining about aggressive or inappropriate behavior; Hoffschneider had no record of a conduct disorder before the age of 15, a key criterion when diagnosing personality disorders; and he was generally described as genial and helpful toward other patients.

The judge asked Abel about available treatment options. He responded: “Correctional treatment … Being locked up for a period of time.”

Judge Tamara Russell: Just put him in prison?

Dr. Lennart Abel: Yep.

Russell: OK. So, he’s not being treated right now for his personality disorder?

Abel: Well, he is being treated. He’s confined …

Russell: OK. But the law doesn’t allow me to keep someone in the facility as punishment.

Abel: No. But you’re keeping him—the law allows you to treat him, and the treatment here is the confinement and the slow increase in privileges that he gets as he progresses through the hospital.

Russell denied Hoffschneider’s release five months later.

Five years to the day after the shooting, Hoffschneider is sitting in a Littleton Starbucks. He looks like most people in the coffeeshop: He’s staring down at his phone. Hoffschneider was released from the hospital the previous day and has since been bombarded with calls and texts.

Although his VRA was still on file and his diagnoses hadn’t changed, a second release evaluation, completed in February by a different forensic psychiatrist contracted by CMHIP, declared him eligible for conditional release. Hoffschneider walked out of the hospital on July 9, 2021.

The now 39-year-old appears resigned rather than elated to be home. He knows his freedom still has serious limits. The conditions for his release seem straightforward—no alcohol, no drugs, no weapons—but the boundaries around them are fuzzy. Other patients have been pulled back into the hospital for starting a romantic relationship, applying for an auto loan, or getting a credit card—actions they say no one told them were infractions until they were disciplined.

The conditions are placed “on an individual basis” and centered around the original offense, maintains Jagruti Shah, director of forensic services for Colorado’s Office of Behavioral Health, the department that takes on the supervisory role once patients leave CMHIP. “If the index crime was money laundering, for example, we’re going to be more cautious about finances and access to bank accounts or credit cards.”

Conditional release is not meant to be correctional or feel like parole, she says. However, Shah admits that “being so closely tied to the criminal justice system is a challenge, because it’s a confusing message that we’re giving to this population.”

Hoffschneider is currently living in that murkiness. It’s unclear how long he’ll continue to be monitored. Longtin has a client who’s been on conditional release for 15 years; another CMHIP patient who was charged with aggravated assault has had conditional status for nine years. Hoffschneider will have to wait until at least January, when a hearing is set on his request for unconditional release. “I might be out of the hospital setting, but I’m still under conditions that are holding me back from living my life,” he says. “My life has been paused, and they [CMHIP staff] tried to make me and others believe something about me that’s not true.”

Hoffschneider’s suspended reality didn’t extend to those living outside CMHIP’s walls. In the years he was incarcerated, his father and one of his brothers died. “That’s the one thing that weighs on him the most—the fact that he couldn’t be here when all that stuff happened,” says his younger brother, Marcus Sanchez, with whom Hoffschneider is living.

After reading Hoffschneider’s ongoing civil lawsuit against CMHIP, one could be forgiven for thinking it sounds outrageous. In it, he alleges nearly two dozen employees conspired to keep him committed by fabricating a personality disorder diagnosis, including false information in his VRA, and generally violating his civil rights. “At best, they were just willfully negligent,” says Mark Scabavea, Hoffschneider’s attorney, who believes that what appears to have begun as employees being overly cautious developed into a personal vendetta. “I think they are entrenched in a situation where they don’t want to take any risks. … They always want to err on the side of holding somebody there.”

There is some formal support for Hoffschneider’s claims: One clinician who worked closely with him is quoted, anonymously, in the complaint as saying, “The truth is, David is being held not for a mental illness, but because staff at CMHIP personally have issues with him advocating for himself. I have personally seen staff laughing about keeping him institutionalized. … The treatment team responsible for the decisions regarding his release and continued hospitalization are biased against him. … His continued confinement is punitive, and not necessary.”

The state attorney general’s office, which is representing all but one defendant in the lawsuit, declined to comment, citing active litigation. In September, its motion to dismiss Hoffschneider’s case was denied by a district court judge.

That decision marked the first time Hoffschneider has allowed himself to feel hopeful that someone will be held accountable for his drawn-out incarceration. Standing on his brother’s porch in July, Hoffschneider picks up a piece of wood painted with the Denver Nuggets logo that he brought back from the hospital. “This was my treatment,” he says. An art project to pass the time. “It wasn’t worth my life.” He looks down at his hands and tosses the piece back onto a chair, his brown eyes squinting in the summer sun.

 

Clarification: This story was updated to include information about the type of furniture in patient rooms at CHMIP.

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