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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CYNTHIA LORD,
Court of Appeals No. A-12213
Appellant, Trial Court No. 3AN-09-04469 CI
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2702 - April 23, 2021
Appeal f
rom the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Susan Orlansky, Reeves Amodio LLC, under
contract with the Public Defender Agency, and Quinlan Steiner,
Public Defender, Anchorage, for the Appellant. Nancy R.
Simel, Assistant Attorney General, Office of Criminal Appeals,
Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for
the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Smith,
Senior Superior Court Judge.*
Judge HARBISON, writing for the Court.
Judge ALLARD, with whom Judge SMITH joins, concurring.
Judge SMITH, concurring and dissenting.
* Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
----------------------- Page 2-----------------------
Cynthia Lord appeals the dismissal of her application for post-conviction
relief for failure to state a prima facie claim for relief. In this appeal, Lord contends that
her application established a prima facie case that her trial attorneys provided her with
ineffective assistance of counsel. She also contends that her application established a
prima facie case that Alaska's 'guilty but mentally ill" (GBMI) statutes violate the equal
protection rights of defendants found GBMI by denying them the more appropriate and
higher quality mental health treatment that defendants found not guilty by reason of
insanity (NGI) receive.
For the reasons we explain in this opinion, we reject Lord's claims and
affirm the decision of the superior court.
Facts and proceedings
Cynthia Lord was convicted, following a bench trial, of three counts of
1
first-degree murder for killing her three teenage sons in 2004. It was uncontested during
the investigation and throughout trial that Lord was severely mentally ill. Several
witnesses, including Lord, testified that she believed that a force called 'Evil" was taking
over the world and specifically her sons, and that the only way to save her sons was to
kill them and cause them to be sent to heaven.
Lord was represented by the Public Defender Agency at trial and on direct
appeal. The Agency assigned five different attorneys to represent her prior to her trial.
Lord's first attorney filed a motion for a competency evaluation. After the
trial court granted the motion and found Lord competent to stand trial, her attorney filed
a notice of intent to rely on the defense that Lord was not guilty by reason of insanity.
That attorney also filed a motion challenging the constitutionality of Alaska's insanity
1 AS 11.41.100(a)(1)(A).
- 2 - 2702
----------------------- Page 3-----------------------
statute, arguing it impermissibly precluded defendants who lacked the ability to
appreciate the wrongfulness of their conduct from raising an insanity defense. The trial
court rejected Lord's constitutional claim, concluding that there was no federal right to
an insanity defense and that the statutory scheme did not violate the Alaska Constitution.
The State then filed notice that if Lord presented an insanity defense at trial,
2
it would seek a verdict of guilty but mentally ill (GBMI).
Lord's counsel did not
respond to the GBMI notice.
Lord waived her right to a jury trial. At her bench trial, she argued that she
was not guilty by reason of insanity. The court rejected the insanity defense and instead
found her guilty but mentally ill. Specifically, the court found that, because of the
severity of her mental illness, Lord lacked the substantial capacity to appreciate the
wrongfulness of her actions.
Lord appealed her conviction, raising due process and cruel and unusual
3
This Court affirmed her
punishment challenges to the insanity and GBMI statutes.
4
convictions, upholding the constitutionality of both statutes.
Lord also filed an application for post-conviction relief. In her application
for post-conviction relief, Lord argued that her trial attorneys provided ineffective
assistance of counsel by failing to challenge the constitutionality of the GBMI statutes
and by failing to interview Dr. Sperbeck, one of the State's witnesses, as to how the
Department of Corrections treats GBMI inmates. Lord also argued that the GBMI
statutes unconstitutionally deny equal protection to GBMI inmates, as compared to
2 See AS 12.47.030-.050.
3 Lord v. State , 262 P.3d 855, 861 (Alaska App. 2011).
4 Id. at 862.
- 3 - 2702
----------------------- Page 4-----------------------
individuals found not guilty by reason of insanity, by requiring GBMI inmates to be
confined in prison rather than in a mental hospital. 5
The State filed a motion to dismiss the application for failure to state a
prima facie claim for relief. The superior court accepted Lord's factual allegations but
nevertheless granted the State's motion, and this appeal followed.
Lord's application did not state a prima facie claim for relief
On appeal, Lord first contends that the superior court erred in dismissing
her application for failure to state a prima facie claim that her trial attorneys were
ineffective for: (1) failing to challenge the constitutionality of the GBMI statutes, and
(2) failing to interview Dr. Sperbeck. Lord argues that she presented a prima facie case
of ineffective assistance of counsel in each instance.
To establish a prima facie claim of ineffective assistance of counsel, an
applicant must establish: (1) that counsel's conduct did not 'fall within the range of
competence displayed by [an attorney] of ordinary training and skill in the criminal law"
and (2) that there is a reasonable possibility that, but for counsel's deficient performance,
6
As part of this first showing, the applicant must
the outcome would have been different.
7
rebut thepresumptionthat trialcounsel's actionsreflected soundtactical considerations.
Lord also contends that the superior court erred in dismissing her free-
standing equal protection claim that the GBMI statutes unconstitutionally deny equal
5 In her initial application for post-conviction relief, Lord provided two other free-
standing constitutional arguments against the GBMI statutes. She does not renew these
arguments on appeal.
6 Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
7 State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988); see also Simeon v. State,
90 P.3d 181, 184-85 (Alaska App. 2004).
- 4 - 2702
----------------------- Page 5-----------------------
protection to GBMI inmates, as compared to individuals found not guilty by reason of
insanity.
We will now address each of these three claims in turn.
The failure to raise a constitutional challenge to the GBMI statutes
Lord argues that her application for post-conviction relief set out facts that,
if proven, would establish that a minimally competent attorney would have challenged
the GBMI statutes as violative of the Eighth Amendment, Alaska's reformation clause,
and the equal protection clauses of the state and federal constitutions.
As an initial matter, we note that although there is a presumption that trial
counsel's actions reflected sound tactical considerations, Lord's application clearly
established a prima facie case that her attorneys' failure to file constitutional claims
against the GBMI statutes was not due to any tactical decisions. As we have explained,
Lord was given a series of attorneys before her trial. In their affidavits, these pretrial
attorneys alleged that they either relied on those before them to have completed the
necessary motion work in the case or expected the case to be quickly reassigned.
Likewise, the affidavits stated that Lord's trial attorney was inexperienced and deferred
to his co-counsel, who in turn saw his role only as assisting in conducting the trial.
As we have also explained, the superior court accepted Lord's factual
allegations but nevertheless dismissed Lord's application as deficient. The court
concluded that while a 'high caliber [trial] attorney" might have raised the Eighth
Amendment, right of reformation, and equal protection claims that Lord raised for the
first timein her application for post-conviction relief, Lord's application did notestablish
that any of her attorneys fell ''below the nadir' of the range of minimally competent
attorneys for their failure to raise th[ose] complex and nuanced arguments."
- 5 - 2702
----------------------- Page 6-----------------------
On appeal, Lord argues that the superior court erred in parsing each of her
constitutional arguments and finding them 'complex and nuanced." She asserts that the
fundamental incompetence of her attorneys was in failing to raise any of the challenges
to the GBMI verdict that she listed.
But Lord's arguments are significantly undermined by the fact that,
although her trial attorneys did not directly challenge the constitutionality of the GBMI
verdict, Lord's appellate attorney did raise many of these challenges in Lord's direct
appeal. As the State notes, Lord's appellate attorney filed a lengthy brief attacking
Alaska's insanity and GBMI statutes as violative of due process and the prohibition
against cruel and unusual punishment. This Court reachedthemerits ofthose arguments,
rejecting the arguments and adhering to our prior decisions in Hart v. State and Barrett
v. State, where we rejected similar constitutional challenges to the insanity and GBMI
8
statutes more than thirty years ago.
In other words, Lord cannot show that she was
prejudiced by her trial attorneys' failure to raise certain constitutional challenges when
her appellateattorney raisedandargued (albeit unsuccessfully) thosesameconstitutional
challenges in her direct appeal.
Moreover, we do not see a material difference between the due process and
cruel and unusual punishment claims that Lord argued (and lost) in her direct appeal, and
the equal protection claims she attempted to raise in her post-conviction relief
application. The central assertion of any equal protection claim is the assertion that
'similarly situated" persons are being treated differently. Fundamentally, therefore,
Lord's equal protection claim in this appeal is an argument that no reasonable basis
exists for distinguishing between defendants found not guilty by reason of insanity (i.e.,
8 Lord v. State , 262 P.3d 855, 861-62 (Alaska App. 2011) (first citing Hart v. State, 702
P.2d 651, 653-59 (Alaska App. 1985); then citing Barrett v. State, 772 P.2d 559, 573 (Alaska
App. 1989)).
- 6 - 2702
----------------------- Page 7-----------------------
defendants who, because of their mental illness, are 'unable . . . to appreciate the nature
andquality oftheir conduct")anddefendants found GBMI ( i.e.,defendants who, because
oftheir mentalillness,lack 'thesubstantialcapacityeither to appreciatethewrongfulness
of [their] conduct or to conform that conduct to the requirements of law"). But this is
essentially the same argument as the due process argument that Lord's appellate attorney
made, and this Court rejected, in Lord's direct appeal.
We also agree with the State that Lord was not prejudiced by her trial
attorneys' failure to challenge the conditions of her confinement as violative of her right
to reformation and the prohibition against cruel and unusual punishment. As the State
correctly points out, such claims can still be raised by Lord in a separate civil lawsuit,
and they are not dependent on her trial attorneys raising these constitutional grounds at
9
sentencing.
Lastly, we conclude that Lord has failed to show that she was prejudiced
by the failure to challenge the restrictions on mandatory parole under the GBMI verdict.
9 See Rust v. State, 582 P.2d 134, 143 (Alaska 1978) (recognizing the court's authority
to enforce the right to necessary medical and mental health services in an independent
action); Abraham v. State , 585 P.2d 526, 531-34 (Alaska 1978) (recognizing that an
independent civil action is the proper vehicle for seeking rehabilitative treatment while in
custody); LaBarbera v. State , 598 P.2d 947, 949 (Alaska 1979) (noting that an inmate's right
to receive rehabilitative services does not confer on a court the authority to furlough a
prisoner for a particular treatment program); State v. Hiser, 924 P.2d 1024 (Alaska App.
1996) (holding that the particulars of a prisoner's care and treatment are entrusted to the
Department of Corrections, and if they are inadequate, a prisoner may bring suit against the
Department); State, Dep't of Corr. v. Lundy, 188 P.3d 692, 696 (Alaska App. 2008) (finding
that the superior court did not have subject matter jurisdiction to address the legality of the
Department of Corrections' treatment decisions in a sentencing decision and could only do
so in an independent civil action filed by the prisoner against the Department); Twogood v.
State, 223 P.3d 641, 649 (Alaska App. 2010) (finding that the Department of Corrections'
denial of rehabilitative sex offender treatment was not cognizable on direct appeal from a
criminal proceeding).
- 7 - 2702
----------------------- Page 8-----------------------
(Alaska Statute 12.47.050(d) precludes a GBMI defendant from being released on
furlough or parole unless they are no longer receiving the treatment required by
AS 12.47.050(b). That treatment, in turn, is required 'until the defendant no longer
suffers from a mental disease or defect that causes the defendant to be dangerous to the
10
public peace or safety." )
Thirty years ago, in Barrett v. State, this Court rejected an equal protection
challenge to the restrictions on furloughs and discretionary parole inherent in the GBMI
11
statutory scheme. We found that, as a practical matter, '[n]o responsible correctional
official or parole board member would release a person into the community if he or she
12
felt that that person was dangerous." We reaffirmed this holding in a later case,
13
Monroe v. State . However, at the time of Lord's case, we had not explicitly addressed
any constitutional challenges to the restrictions on mandatory parole.
But this is no longer true. Two years after Lord's direct appeal, this Court
14
In Clifton, we rejected an argument that
issued our decision in State v. Clifton.
AS 12.47 unconstitutionally equated 'mental illness" with 'dangerousness" because we
15
concluded that the statute did not make such an equivalency.
Instead, we emphasized
that the requirement of mandatory mental health treatment (and the restriction of parole
that accompanies such treatment) only applies to defendants who 'continue to suffer
10 AS 12.47.050(b).
11 Barrett, 772 P.2d at 573-74.
12 Id. at 573.
13 Monroe v. State , 847 P.2d 84, 89 (Alaska App. 1993).
14 State v. Clifton, 315 P.3d 694 (Alaska App. 2013).
15 Id. at 703.
- 8 - 2702
----------------------- Page 9-----------------------
from a 'mental disease or defect that causes [them] to be dangerous to the public peace
or safety ."'16 We also rejected an argument that there was 'no good reason to impose
additional restrictions on the parole eligibility of [GBMI defendants] - no good reason
to conclude that [GBMI defendants] pose a greater danger to the public than [non-GBMI
17
defendants]." This Court held that the legislature could reasonably conclude that a
GBMI defendant's mental disease or defect was 'important toany assessment ofwhether
the defendant can be safely released on parole or furlough" and that GBMI defendants
18
'will be significantly less receptive to parole supervision and control."
In his dissent, Judge Smith argues that Clifton was wrongly decided. But
even if we were to agree with Judge Smith, we could not find that Lord suffered any
prejudice by her attorneys' failure to raise a legal argument that we expressly rejected
two years after her direct appeal.
The failure to interview Dr. Sperbeck
Lord's application for post-conviction relief alleged that Dr. David
Sperbeck was an expert for the State at Lord's trial, and that because of his employment
at the Alaska Psychiatric Institute as well as the Department of Corrections from 1982-
2005, Sperbeck was in a unique position to answer questions about the differences in
care that mentally ill people experienced in Department of Corrections custody versus
at the Alaska Psychiatric Institute before Lord's case went to trial. According to Lord's
application, an interview with Dr. Sperbeck would have provided information regarding
the disparate care given to mentally ill individuals in Department of Corrections custody
16 Id. (alteration in original).
17 Id. at 704.
18 Id.
- 9 - 2702
----------------------- Page 10-----------------------
as compared to those who are found not guilty by reason of insanity- information that
would have supported a constitutional attack on the GBMI statutes.
We agree with the superior court that Lord's trial attorneys were not
incompetent for failing to interview Dr. Sperbeck regarding Lord's conditions of
confinement if she were found GBMI. Dr. Sperbeck was an expert witness on Lord's
competency to stand trial and whether Lord's psychiatric illness prevented her from
appreciating the 'nature and quality" of her conduct - i.e., whether Lord qualified as
19
legally insane under Alaska law.
Questioning Dr. Sperbeck about the conditions of
Lord's confinement if she were found GBMI was not clearly within the scope of the trial
attorneys' duties. Nor is Lord prejudiced by her trial attorneys' failure to challenge her
future conditions of confinement, as she may still challenge her current conditions of
20
confinement through a separate civil law suit.
Lord's free-standing equal protection claim
In addition to arguing that Lord's trial attorneys were ineffective for failing
to interview Dr. Sperbeck to prepare a robust equal protection argument regarding the
treatment of GBMI defendants as compared to the treatment of defendants found not
guilty by reason of insanity, Lord's post-conviction relief application also raised a free-
standing equal protection claim, relying on the affidavit from Dr. Sperbeck.
The superior court found that this constitutional challenge could have been
raised on direct appeal, and it accordingly dismissed this claim pursuant to
AS 12.72.020(a)(2). Lord now appeals this dismissal.
19 See AS 12.47.010(a).
20 See cases cited in footnote 9.
- 10 - 2702
----------------------- Page 11-----------------------
Lord argues that the court erred in finding that this equal protection
challenge could have been raised on direct appeal. Specifically, she contends that the
claim depended upon Dr. Sperbeck's affidavit, which was only obtained after the trial
and sentencing.
The State argues that the equal protection claim could have been raised on
21
direct appeal without Dr. Sperbeck's affidavit and that res judicata therefore applies.
We agree. Indeed, as already noted, the underlying basis of Lord's equal protection
claim - that GBMI defendants are 'similarly situated" to NGI defendants and therefore
require equal treatment - was essentially argued, and rejected by this Court, in Lord's
22
direct appeal. Accordingly, given our established case law - which Lord is not
challenging in this appeal - we find no error in the superior court's dismissal of the
free-standing equal protection claim.
We also agree with the State that Dr. Sperbeck's affidavit supports an
Eighth Amendment conditions of confinement civil lawsuit, which Lord is still entitled
to pursue.
Conclusion
The judgment of the superior court is AFFIRMED.
21 Res judicata not only precludes the relitigation of claims that were actually raised in
the prior proceedings, but it also precludes litigation of 'related claims arising out of the
same transaction that could have been raised in that proceeding." White v. State, Dep't of
Nat. Res., 14 P.3d 956, 959 (Alaska 2000).
22 Lord , 262 P.3d at 861-62.
- 11 - 2702
----------------------- Page 12-----------------------
Judge ALLARD, with whom Senior Superior Court Judge SMITH joins, concurring.
Although I join the majority opinion, I write separately to express concerns
with some of our prior case law and to address what I believe to be colorable
constitutional claims against Alaska's 'guilty but mentally ill" verdict based on the
1
United States Supreme Court's recent decision in Kahler v. Kansas .
As I explain in this
concurrence, Alaska is a clear outlier in its harsh treatment of defendants who have been
found guilty but mentally ill, and no other jurisdiction has an insanity scheme like
Alaska's.
Some background history on Alaska's GBMI verdict and the ways it differs
from GBMI verdicts in other jurisdictions
From statehood until 1972, Alaska followed a version of the M'Naghten
2
The M'Naghten rule is derived from a 1843 British case, and it
rule of legal insanity.
has historically been 'the primary test of criminal responsibility in the United States, and
3
the exclusive test in a majority of American jurisdictions and in England and Canada."
The first prong of the M'Naghten test (sometimes referred to as the
'cognitive incapacity" prong) asks whether the defendant knew what they were doing
- i.e., whether the defendant understood the 'nature and quality" of their conduct. The
second prong (sometimes referred to as the 'moral incapacity" or 'wrongfulness" prong)
1 Kahler v. Kansas, 140 S.Ct. 1021 (2020).
2 Pope v. State, 478 P.2d 801, 808-09 (Alaska 1970) (Connor, J., concurring in part and
dissenting in part) (explaining history of insanity defense in Alaska); Schade v. State, 512
P.2d 907, 910-12 (Alaska 1973) (explaining legislature's amendments to M'Naghten rule).
3
Chase v. State, 369 P.2d 997, 1001-02 (Alaska 1962), overruled on other grounds by
Schade, 512 P.2d at 910-12.
- 12 - 2702
----------------------- Page 13-----------------------
asks whether the defendant had the capacity to understand that their conduct was wrong
4
- i.e., whether the defendant appreciated the wrongfulness of their actions.
In 1972, Alaska's M'Naghten insanity test was amended to add the
American Law Institute's (A.L.I.) insanity test set forth in the Model Penal Code, which
considered a defendant legally insane if, as a result of mental disease or defect, they
lacked 'substantial capacity either to appreciate the wrongfulness of their conduct or to
5
conform [their] conduct to the requirements of the law." The addition of this latter
'volitional incapacity" language represented an expansion of the legal test for insanity.
Notably, when the Alaska legislature amended the Alaska statutes to add
theA.L.I. definitionofinsanity, it retained only themoral incapacity/wrongfulness prong
of the M'Naghten test. Presumably the cognitive incapacity prong was not included in
deference to Alaska Supreme Court case law that had held that the two prongs were
6
functionally the same.
7
In 1982, the Alaska legislature revised Alaska's insanity laws. These
revisions were part of a national trend that occurred in response to several high-profile
cases in which defendants had been found not guilty by reason of insanity under the
4 See Kahler, 140 S.Ct. at 1025 (explaining M'Naghten test).
5 Former AS 12.45.083(a) (1972) (emphasis added); see also Model Penal Code § 4.01
(Proposed Official Draft 1962). In Schade v. State, the Alaska Supreme Court adopted the
A.L.I. test as a matter of law for application to crimes committed prior to the effective date
of former AS 12.45.083. Schade, 512 P.2d at 912.
6 See Chase, 369 P.2d at 1002.
7 SLA 1982, ch. 143, § 22.
- 13 - 2702
----------------------- Page 14-----------------------
expanded definitions of insanity that some jurisdictions had adopted in the 1960's and
8
1970's.
For the most part, the revisions in other jurisdictions were relatively
modest. Some jurisdictions eliminated the 'volitional prong" from their insanity tests,
and instead created a new verdict for 'guilty but mentally ill" (GBMI) defendants who,
because of their mental illness, were incapable of conforming their conduct to the
requirements of the law. However, these jurisdictions retained the central moral
incapacity/wrongfulness prong of the M'Naghten test in some form. Indeed, as of today,
forty-five states plus the federal criminal justice system, the military justice system, and
the District of Columbia provide an affirmative insanity defense that encompasses the
9
defendant's lack of moral culpability.
Afewjurisdictions went farther,eliminatingtheinsanitydefensealtogether.
Currently, four jurisdictions - Kansas, Montana, Utah, and Idaho - do not have an
10
affirmative insanity defense.
8 See, e.g., Christopher Slobogin, An End to Insanity: Recasting the Role of Mental
Disability in Criminal Cases, 86 Va. L. Rev. 1199, 1203 & n.16, 1214 (2000) (discussing the
significance of the not guilty by reason of insanity acquittal of John Hinckley - who
attempted to assassinate President Ronald Reagan as a result of delusions involving actress
Jodie Foster - in relation to a nationwide push to narrow the scope of the insanity defense);
Wallace Turner, New Law on Insanity Plea Stirs Dispute in Alaska, N.Y. Times, June 22,
1982, at D27 (discussing the significance of the Robert Meach case in Alaska).
9 See Kahler, 140 S.Ct. at 1051-59 (Breyer, J., dissenting) (appendix surveying forty-
five states, the District of Columbia, and the federal test for insanity); 10 U.S.C. § 850a(a)
(2018) (military test for insanity).
10 An affirmative insanity defense in this context means a defense that is 'distinct from,
and in addition to, a claim that by virtue of mental illness a person either acted unconsciously
or involuntarily or was unable to formulate the necessary mens rea to be guilty of an
offense." See Hart v. State, 702 P.2d 651, 656 (Alaska App. 1985) (citing Leland v. Oregon ,
(continued...)
- 14 - 2702
----------------------- Page 15-----------------------
Alaska took an entirely unique approach. Although it ostensibly did not
eliminate the insanity defense, it eliminated the moral incapacity/wrongfulness prong of
the M'Naghten test and restricted its definition of insanity to only the first prong - the
cognitive incapacity prong. Alaska also created a GBMI verdict that included not only
those defendants who would have been found legally insane under the A.L.I. test, but
also those defendants who would have been found legally insane under the second prong
of the M'Naghten test even though, under Alaska Supreme Court case law, the two
11
prongs were considered indistinguishable.
No other jurisdiction has taken this
approach to its insanity defense.
Cynthia Lord's case puts these differences between jurisdictions into stark
relief. At her trial, the superior court judge found that, because of the severity of her
mental illness and psychotic delusions, Lord lacked the substantial capacity to appreciate
the wrongfulness of her actions. Such a finding would result in a not guilty by reason
of insanity (NGI) verdict in forty-five states, the federal criminal justice system, the
military justice system, and the District of Columbia. Having been found not guilty by
reason of insanity in those jurisdictions, a defendant like Lord would then be committed
to the state mental hospital until such time as she could prove that she was no longer
dangerous as a result of her mental illness, subject to a maximum term that represented
the maximum sentence that she could have received if she had been found guilty and not
legally insane.
Moreover, even if Lord had been tried in one of the jurisdictions that has
abolished the insanity defense, she would still likely have ended up in a state mental
10 (...continued)
343 U.S. 790 (1952)).
11 See id. at 657; see also Chase, 369 P.2d at 1002.
- 15 - 2702
----------------------- Page 16-----------------------
hospital receiving treatment rather than incarcerated in prison. Under Kansas law, for
example, a sentencing judge has the authority to commit a convicted defendant to a
mental health facility rather than prison if 'the defendant is in need of psychiatric care,"
'such treatment may materially aid in the defendant's rehabilitation," and if 'the
defendant and society are not likely to be endangered" by permitting the defendant to
12
receive psychiatric care in lieu of imprisonment.
Evidence of mental illness can also
13
be used at sentencing to mitigate culpability and lessen the defendant's punishment.
Montana law also has provisions that seek to lessen the punishment that
severely mentally ill defendants face in a jurisdiction that no longer has an affirmative
14
insanity defense. For example, mandatory minimum sentences do not apply to such
15
defendants, and they are entitled to yearly reviews of their sentence. Severely mentally
ill defendants can also be committed to a mental health facility, residential facility, or
developmental disabilities facility for treatment, in lieu of incarceration in a correctional
16
institution.
12 Kan. Stat. Ann. § 22-3430(a).
13 Kahler, 140 S.Ct. at 1031; Kan. Stat. Ann. § 21-6625(a)(6) (including among
mitigating circumstances that '[t]he capacity of the defendant to appreciate the criminality
of the defendant's conduct or to conform the defendant's conduct to the requirements of law
was substantially impaired").
14 See, e.g., State v. Korell, 690 P.2d 992,1002 (Mont. 1984) ('Our legislature has acted
to assure that the attendant stigma of a criminal conviction is mitigated by the sentencing
judge's personal consideration of the defendant's mental condition and provision for
commitment to an appropriate institution for treatment, as an alternative to a sentence of
imprisonment.").
15 Mont. Code Ann. § 46-14-312(2)-(4).
16 Mont. Code Ann. § 46-14-312(2); see also Korell, 690 P.2d at 996-97 ('[W]hile
Montana has abolished the traditional use of insanity as a defense, alternative procedures
(continued...)
- 16 - 2702
----------------------- Page 17-----------------------
Utah law contains similar provisions. Like Alaska, Utah has a GBMI
verdict - called 'guilty with a mental illness" - for persons who would have been
17
found NGI under its prior laws.
But Utah's GBMI verdict, which focuses on
hospitalization and mitigation for defendants found GBMI, is markedly different from
Alaska's GBMI verdict, which contains no mitigation measures and does not directly
provide for hospitalization of these defendants. Upon a plea or verdict of 'guilty with
a mental illness," the Utah court will order the defendant committed to the state hospital
18
until the defendant is no longer mentally ill or can be safely treated in prison. Utah law
also gives the court the authority to resentence a defendant who has been found 'guilty
19
with a mental illness" following treatment and stabilization in the state hospital. In
addition, Utah law provides for special mitigation measures for severely mentally ill
defendants like Lord who commit homicides while suffering from a delusion that made
20
them believe that their actions were justified.
Idaho also has statutory protections for defendants with severe mental
illnesses. Under Idaho's sentencing scheme, a trial court must consider a defendant's
16 (...continued)
have been enacted to deal with insane individuals who commit criminal acts.").
17 See Utah Code Ann. §§ 77-16a-102, 76-2-305; State v. Herrera, 895 P.2d 359, 362
(Utah 1995) (explaining Utah's approach to the insanity defense).
18
Utah Code Ann. §§ 77-16a-104, -202 to -203. The court also has the authority to
extend such placement or to order re-commitment to the state hospital if appropriate. Utah
Code Ann. § 77-16a-202.
19
Utah Code Ann. § 77-16a-202(1)(b). This provision does not apply to capital crimes.
Utah Code Ann. § 77-16a-202(2).
20
Utah Code Ann. § 76-5-205.5. Specifically, this section reduces the level of criminal
culpability from aggravated murder to murder or from murder to manslaughter. Utah Code
Ann. § 76-5-205.5(5).
- 17 - 2702
----------------------- Page 18-----------------------
mental illness, including their ability to appreciate the wrongfulness of their actions, as
21
a mitigating factor when fashioning a sentence.
Additionally, a trial court may order
a defendant to receive mental health treatment during the period of confinement or
22
probation. Indeed, the existence of these sentencing safeguards was integral to the
Idaho Supreme Court's decision to uphold its legislature's abolition of the insanity
defense.23
In contrast, there are no provisions in Alaska law that give the courts the
authority to place a GBMI defendant in a therapeutic hospital setting. But when Alaska's
GBMI verdict was originally enacted in 1982, the assumption appears to have been that
GBMI defendants would be treated in a state hospital, just as they would have been
under the prior law which would have found them not guilty by reason of insanity.
Contemporary documents from the time reflect this assumption that GBMI defendants
would be treated at the Alaska Psychiatric Institute. In an article about Alaska's new
insanity laws, Dr. Richard R. Parlour and Dr. David J. Sperbeck warned that more
needed to be done to ensure that the hospital would be prepared to care for these
defendants:
Almost two years after the new mentally ill offender
statute became law in Alaska, the first [GBMI] convicts are
presentingthemselvesfor themandatory treatment atthestate
hospital. No special program or facility has been designated
for this purpose. The already over-utilized maximum
21 Idaho Code § 19-2523(1); see also Idaho Code § 19-2522.
22 Idaho Code § 19-2523(2); see also Idaho Code § 19-2524.
23 See State v. Delling , 267 P.3d 709, 718 (Idaho 2011).
- 18 - 2702
----------------------- Page 19-----------------------
security unit at the hospital is expected to serve this new
[24]
patient population.
The shift from hospital placement for GBMI defendants to placement in a
correctional facility appears to have been a (perhaps unintended) consequence of an
administrative restructuring. In 1982, when the legislation was first enacted, the
treatment of GBMI defendants was committed to the authority of a unitary Department
of Health and Social Services, which administered both the Alaska Psychiatric Institute
25
and the Division of Corrections.
In 1984, however, the department was restructured
to create a separate Department of Corrections, and GBMI defendants were then placed
under the authority of this new department. This change took place through an executive
26
order, without legislative debate or discussion.
There are also no provisions under Alaska law that treat a finding of GBMI
as a mitigating factor that serves to lessen the defendant's culpability or punishment. To
the contrary, as this Court has recognized, a finding of GBMI under Alaska law actually
27
serves to aggravate a defendant's sentence.
Under AS 12.47.050(d), a GBMI
defendant is ineligible for parole while they are receiving mental health treatment in
prison for their mental illness. They also cannot be released on furlough except to a
secured setting. Because the restrictions on parole and furlough essentially serve to
24 Richard R. Parlour & David J. Sperbeck, The Straits of Insanity in Alaska, 32
Corrective and Social Psychiatry and Journal of Behavior Technology Methods and Therapy
109, 113 (1986).
25 See SLA 1982, ch. 143, § 22.
26 See Executive Order No. 55, §§ 3-4, 46 (1984).
27
State v. Clifton, 315 P.3d 694, 702 (Alaska App. 2013) (holding that a finding of
GBMI is an aggravator that must be found by the jury under Blakely v. Washington, 542 U.S.
296 (2004)).
- 19 - 2702
----------------------- Page 20-----------------------
increase an Alaska GBMI defendant's incarceration above what would otherwise apply
to a non-GBMI defendant, this Court held in State v. Clifton that Blakely v. Washington
required that the finding of 'guilty but mentally ill" be made beyond a reasonable doubt
28
by a jury.
In short, Alaska stands in the clear minority of jurisdictions in eliminating
moral culpability/wrongfulness from its insanity defense. And Alaska stands virtually
alone in failing to provide mitigation to, and hospitalization of, severely mentally ill
defendants like Cynthia Lord who have been found to lack the capacity to appreciate the
wrongfulness of their actions.
Prior constitutional challenges to Alaska's GBMI statutes
The first time this Court addressed the constitutionality of the 1982
29
revisions to the insanity defense was in 1985, in Hart v. State. Unlike Lord, the
defendant in Hart was not so mentally ill that he was incapable of appreciating the
wrongfulness of his conduct. However, his mental illness did mean that he lacked the
capacity to conform his conduct to the requirements of the law. In other words, Hart
would have qualified as insane under the A.L.I. 'volitional prong" definition of insanity
30
but he would not have qualified as insane under the M'Naghten rule. Hart argued that
a statutory scheme that held a person who lacked substantial capacity to conform their
conduct to the requirements of the law criminally responsible violated, inter alia, the due
28 Id. (citing Blakely, 542 U.S. at 303-04).
29 Hart v. State, 702 P.2d 651 (Alaska App. 1985).
30 Id. at 658.
- 20 - 2702
----------------------- Page 21-----------------------
31
process clauses of the United States and Alaska constitutions. We rejected this
32
challenge, relying on the United States Supreme Court decision, Leland v. Oregon . In
Leland, the Supreme Court held that Oregon could choose to adopt the'right and wrong"
33
M'Naghten test rather than the 'irresistible impulse" test without violating due process.
As the Supreme Court explained:
Knowledge of right and wrong is the exclusive test of
criminal responsibility in a majority of American
jurisdictions. The science of psychiatry has made
tremendous strides since that test was laid down in
M'Naghten's Case, but the progress of science has not
reached a point where its learning would compel us to require
the states to eliminate the right and wrong test from their
criminal law.[34]
In Hart, this Court adopted this reasoning and concluded that 'the state may
constitutionally eliminate a separate insanity defense based on 'irresistible impulse' or
inability to conform one's conduct to the requirements of the law" without violating the
35
However, the Court withheld comment on the
state or federal constitutions.
31 Id. at 653. Hart additionally argued that the narrowed NGI defense violated equal
protection and was cruel and unusual punishment, but this Court rejected those challenges
without detailed analysis. Id. at 653, 658-59.
32 Id. at 658-59.
33 Leland v. Oregon , 343 U.S. 790, 800-01 (1952).
34 Id.
35 Hart, 702 P.2d at 658-59 (footnote omitted).
- 21 - 2702
----------------------- Page 22-----------------------
legislature's elimination of the wrongfulness prong of the M'Naghten test because that
36
issue was not raised by the parties.
Two years later, the Court issued Patterson v. State, which made clear that
37
this Court believed that 'wrongfulness" was still part of Alaska's insanity test. The
Court cited to Chase v. State, in which the Alaska Supreme Court treated the two prongs
38
of the M'Naghten test as essentially interchangeable. The Court also pointed out that
the legislature had modified the cognitive incapacity prong of the M'Naghten test from
39
'know" to 'appreciate" and 'act" to 'conduct." The Court therefore concluded this
new language - that a defendant must be able 'to appreciate the nature and quality of
40
[their] conduct" - must be interpreted broadly rather than restrictively, and must refer
both to the defendant's bare awareness of their physical acts and also to their ability to
41
'appreciat[e] the nature and quality of the mental state that accompanied [their] acts."
In other words, this Court largely restored the 'wrongfulness" component to Alaska's
definition of insanity.
36 Id. at 658 & n.9.
37 Patterson v. State , 708 P.2d 712 (Alaska App. 1985), rev'd, 740 P.2d 944 (Alaska
1987).
38 Id. at 716 (citing Chase v. State, 369 P.2d 997, 1001-02 (Alaska 1962), overruled on
other grounds by Schade v. State, 512 P.2d 907, 910-12 (Alaska 1973).
39 Id. at 716-17.
40 AS 12.47.010(a).
41 Patterson, 708 P.2d at 717; cf. Joshua Dressler, Kahler v. Kansas: Ask the Wrong
Question, You Get the Wrong Answer, 18 Ohio St. J. Crim. L. 409, 416 (2020) (noting that
'[i]n early years, the term 'mens rea' simply meant that an actor committed the offense with
a 'morally blameworthy state of mind'").
- 22 - 2702
----------------------- Page 23-----------------------
The Alaska Supreme Court disagreed with this interpretation of the
legislative intent. In State v. Patterson , the Alaska Supreme Court reversed the decision
of the Court of Appeals, and held that Alaska's definition of insanity incorporated only
the first prong of the traditional M'Naghten insanity defense and did not include the
42
second 'wrongfulness" prong. The supreme court declined to decide, however,
whether this statutory scheme violated due process, equal protection, or the prohibition
against cruel and unusual punishment, concluding that these constitutional questions
were not ripe because Patterson's case had to be remanded for a new trial on other
43
grounds.
The Alaska Supreme Court has never subsequently ruled on the
constitutionality of these issues.
In 1989, in Barrett v. State, this Court addressed questions about the
44
constitutionality of the GBMI verdict. In its analysis, the Court relied heavily on its
belief that 'a person found not guilty by reason of insanity and a person found guilty but
45
mentally ill are treated substantially the same." The Court found their treatment
substantially similar because 'each person is subjected to mental health treatment
calculated to cure the mental illness or defect or to render the defendant less dangerous
to the public" and 'neither person may be released absent a finding that either the mental
illness has been cured or that, despite the mental illness, the defendant is no longer
42 State v. Patterson, 740 P.2d at 949.
43 Id. at 949 n.18.
44 Barrett v. State, 772 P.2d 559, 570-74 (Alaska App. 1989). While Barrett raised due
process, cruel and unusual punishment, and equal protection claims, his due process and
cruel and unusual punishment claims were poorlyframed and this Court summarilydismissed
them. Id. at 573.
45 Id. at 572.
- 23 - 2702
----------------------- Page 24-----------------------
46
dangerous." And in either case, 'the defendant may not be subjected to compulsory
mental health treatment beyond the limits of an appropriate criminal sentence unless the
47
state successfully obtains civil commitment."
The Court did not acknowledge the
obvious way in which the two classes of defendants were not treated the same - i.e.,
that defendants found not guilty by reason of insanity are housed in a therapeutic hospital
environment while GBMI defendants are incarcerated in prison.
Withthis incompleteunderstandingoftheGBMI verdict,theCourt rejected
Barrett's argument that the restrictions on parole and furlough for GBMI defendants
violated equal protection. The Court concluded that, as to furloughs and discretionary
parole, the link between a GBMI defendant's mental illness and their criminal conduct
justified treating them like defendants found not guilty by reason of insanity (who are
committed to the state hospital and can only be released prior to the expiration of their
48
maximum possible sentence upon a showing of non-dangerousness). The Court noted
that 'the procedures at issue here simply require that a responsible trier of fact make an
express finding regarding a particular defendant's mental illness and danger before the
49
defendant can be released into the community." The Court also reasoned that these
restrictions were not materially different fromthe obstacles that regular defendants faced
when applying for furlough or discretionary parole because '[n]o responsible
correctional official or parole board member would release a person into the community
46 Id. at 572-73.
47 Id. at 573.
48 Id. at 573-74.
49 Id. at 574.
- 24 - 2702
----------------------- Page 25-----------------------
50
if he or she felt that that person was dangerous." The Court did not directly address the
restriction on mandatory parole in its decision.
51
Four years later, the Court reaffirmed this reasoning in Monroe v. State .
In Monroe, the defendant argued that the statutory parole restrictions that applied to
GBMI defendants violated equal protection because they did not apply to regular
defendants. The Court held that the restrictions were constitutional because they further
the legitimate and substantial state interest of 'protect[ing] society from offenders who
52
pose a continuing danger to the community."
TheCourt noted,however,thatMonroe'must beprovided someprocedural
mechanism to seek eligibility for parole or furlough by demonstrating his lack of
53
continued dangerousness."
The Court concluded that this issue was not yet ripe in
Monroe's case and it expressed optimism that '[i]n the interim, the Parole Board or the
54
Department of Corrections may promulgate regulations addressing the problem." (In
recent years, the Department of Corrections has issued regulations granting GBMI
defendants hearings in which they could demonstrate that they were no longer dangerous
50 Id. at 573.
51 Monroe v. State , 847 P.2d 84 (Alaska App. 1993).
52 Id. at 89. 'However, a person who stands to be sentenced upon conviction of a crime
has no fundamental right to liberty. In such cases, 'the individual interest affected . . . is the
relatively narrow interest of a convicted offender in minimizing the punishment for an
offense.'" Id. (omission in original) (quoting Maeckle v. State , 792 P.2d 686, 689 (Alaska
App. 1990)).
53 Id. at 90 n.4. This Court relied on an analogy to AS 12.47.090(e), which gives
'persons who have been committed for treatment following a successful insanity defense the
right to petition for review of their need for continued institutionalization." Id.
54 Id.
- 25 - 2702
----------------------- Page 26-----------------------
55
as a result of their mental illness. To my knowledge, the adequacy of these regulations
has not been tested and I express no opinion as to whether they address the due process
problem we identified almost thirty years ago in Monroe .)
Thenext timetheCourt addressed theconstitutionality oftheGBMI verdict
was in Lord's direct appeal. As mentioned in the majority opinion, Lord's appellate
attorney raised multiple constitutional challenges to Alaska's insanity statutory scheme,
including the GBMI verdict. Even though some of these arguments had not been raised
by Lord's trial attorneys, this Court responded to the arguments on the merits, albeit in
a cursory manner. The Court provided very little analysis of Lord's constitutional
challenges other than to state that it was adhering to its prior decisions in Hart and
Barrett.56
But, as just explained, neither Hart nor Barrett addressed the real heart of
Lord's constitutional challenge - which was essentially that it was unconstitutional to
find a defendant criminally culpable and to incarcerate that defendant in a prison setting
when, because of the severity of the defendant's mental illness, the defendant lacked the
substantial capacity to appreciate the wrongfulness of their conduct.
Indeed, the first part of this question - whether such defendants can be
found criminally culpable - was not answered under the federal constitution until just
57
Moreover, in answering this question in the affirmative,
recently, in Kahler v. Kansas .
55 See Alaska Dep't of Corr., Policies and Procedures 807.22, Due Process Hearings for
Prisoners Adjudicated Guilty But Mentally Ill (2018).
56 Lord v. State , 262 P.3d 855, 861-62 (Alaska App. 2011) (citing Hart v. State, 702 P.2d
651, 653-59 (Alaska App. 1985); Barrett v. State, 772 P.2d 559, 573 (Alaska App. 1989)).
57 Kahler v. Kansas, 140 S.Ct. 1021 (2020).
- 26 - 2702
----------------------- Page 27-----------------------
the United States Supreme Court relied heavily on precisely those mitigating aspects of
the Kansas statutory scheme that are absent from Alaska law.
The United States Supreme Court's decision in Kahler v. Kansas and the
constitutional questions that it raises for Alaska's statutory scheme
In the 2019-2020 term, the United States Supreme Court granted certiorari
to a Kansas Supreme Court case, Kahler v. Kansas, to decide whether Kansas's abolition
oftheinsanitydefenseviolatedtheEighthAmendment and theFourteenthAmendment.58
The case resulted in extensive briefing on the history of the insanity defense and the
approaches followed by the different jurisdictions. Amicus briefs were filed by multiple
organizations on both sides of the issue.
Ultimately, the decision rested only on the question of whether Kansas's
abolition of the insanity defense violated the due process clause of the Fourteenth
Amendment. The SupremeCourt did not reach the Eighth Amendment question because
59
that issue was not properly before it.
In a majority opinion authored by Justice Kagan, six members of the
60
Supreme Court upheld the Kansas law as constitutional.
But three justices dissented,
essentially agreeing with the position advocated by Lord in her direct appeal - that is,
the position that due process requires an insanity defense that acknowledges a
61
defendant's mental capacity to understand the wrongfulness of their actions. Justice
Breyer authored the dissent, which was joined by Justices Ginsburg and Sotomayor. In
58 Id. at 1027.
59 Id. at 1027 & n.4.
60 Id. at 1027.
61 Id. at 1038 (Breyer, J., dissenting).
- 27 - 2702
----------------------- Page 28-----------------------
thedissent,Justice Breyer noted that '45 States, theFederal Government, and theDistrict
of Columbia continue to recognize an insanity defense that retains some inquiry into the
62
blameworthiness of the accused."
And he further concluded that '[s]even hundred
years of Anglo-American legal history, together with basic principles long inherent in
the nature of the criminal law itself convince me that Kansas' law 'offends . . .
principle[s] of justice so rooted in the traditions and conscience of our people as to be
63
ranked as fundamental.'"
The majority opinion held otherwise, as we did in Lord . However, the
majority opinion rested on different grounds than our opinion in Lord . Central to the
majority's holding was the fact that Kansas law allowed evidence of mental illness at
sentencing 'to mitigate culpability and lessen punishment" and the fact that Kansas law
specifically gave the authority to the sentencing judge to 'replace any prison term with
64
commitment to a mental health facility." As the majority opinion states:
[S]ignificantly, Kansas permits a defendant to offer whatever
mental health evidence he deems relevant at sentencing. . . .
In other words, any manifestation of mental illness that
Kansas's guilt-phaseinsanitydefensedisregards -including
the moral incapacity Kahler highlights - can come in later
to mitigate culpability and lessen punishment. And that same
kind of evidence can persuade a judge to replace any prison
term with commitment to a mental health facility. So as
noted above, a defendant arguing moral incapacity may well
receive the same treatment in Kansas as in States that would
62 Id. at 1046.
63 Id. at 1038 (alterations in original) (quoting Leland v. Oregon , 343 U.S. 790, 798
(1952)).
64 Id. at 1031 (majority opinion).
- 28 - 2702
----------------------- Page 29-----------------------
acquit - and, almost certainly, commit - him for that
[65]
reason.
In other words, the United States Supreme Court upheld Kansas's abolition of the
insanity defense, at least in part, because Kansas law still treated severely mentally ill
defendants in a manner similar to how they would be treated if they had been found not
guilty by reason of insanity.
But this is not true in Alaska. As already explained, Alaska law does not
contain the mitigating provisions that Kansas law contains. To the contrary, Alaska
appears to be alone in treating severely mentally ill defendants who have been found to
lack the capacity to understand the wrongfulness of their actions more harshly than it
does non-mentally ill defendants who have been convicted of the same crimes.
Alaska's outlier status raises serious constitutional issues not answered by
Kahler, and not generally addressed by our prior decisions finding Alaska's insanity
statutory scheme constitutional.
In Barrett v. State, this Court held that Alaska's GBMI statutes did not
violate the constitution, but it did so, in part, under the erroneous belief that GBMI
defendants were treated 'substantially the same" as defendants who were found not
66
guilty by reason of insanity. Barrett also failed to acknowledge the singular harshness
of Alaska's GBMI verdict and the absence of any mitigating measures in Alaska law for
defendants like Cynthia Lord who would still be found not guilty by reason of insanity
in the vast majority of jurisdictions in this country.
But, when evaluating whether a punishment is categorically
disproportionate for a particular type of offender, courts are required to look at 'the
65 Id. (citations omitted).
66 See Barrett v. State, 772 P.2d 559, 573 (Alaska App. 1989).
- 29 - 2702
----------------------- Page 30-----------------------
67
evolving standards of decency that mark the progress of a maturing society." As a
generalmatter, the'clearest and most reliableobjectiveevidenceofcontemporary values
68
is the legislation enacted by the country's legislatures."
Given Alaska's outlier status,
I question whether Barrett and the cases that rely on Barrett (including Lord) are
correctly decided.
Application of these principles to Cynthia Lord's case
Given our current case law, I agree with the majority opinion that Lord's
trial attorneys were not incompetent for failing to raise constitutional claims that, for the
most part, appeared to be resolved by our Court. I also agree with the majority that
Lord's free-standing equal protection claim can be litigated as an Eighth Amendment
conditions of confinement claim in a separate civil suit. But as Judge Smith points out
in his dissent, there are institutional obstacles that will make it difficult for Lord to bring
such a lawsuit. Moreover, while a conditions of confinement lawsuit may be able to
bring relief to Lord personally, it will do nothing to address the structural defects in
Alaska's GBMI verdict, which fails to provide hospitalization and mitigation to a class
of offenders who would have been found not criminally culpable under long-standing
and deeply rooted legal concepts of criminal culpability and moral blameworthiness.
In recent years, the United States Supreme Court has strengthened the
protections of the Eighth Amendment by imposing categorical limits on certain
67 Abraham v. State , 585 P.2d 526, 531 (Alaska 1978) (quoting Rust v. State, 582 P.2d
134, 142 (Alaska 1978)); see also Gray v. State, 267 P.3d 667, 670-71 (Alaska App. 2011)
(discussing Graham v. Florida, 560 U.S. 48, 60-61, 74-75 (2010), and Roper v. Simmons ,
543 U.S. 551, 574-75 (2005)).
68 Graham, 560 U.S. at 62 (quoting Atkins v. Virginia , 536 U.S. 304, 312 (2002)).
- 30 - 2702
----------------------- Page 31-----------------------
sentencing practices as they apply to juveniles. 69 Although Kahler did not address the
Eighth Amendment, its holding strongly suggests that, like juveniles, severely mentally
ill defendants like Lord are less blameworthy than other defendants. Kahler also
suggests that whilesuch defendants can beheld criminallyresponsiblewithoutoffending
the due process clause of the federal constitution, mitigation and placement in a
therapeutic environment is nevertheless required.
Accordingly, in my view, Kahler represents a substantive enough change
to the law as to constitute good cause for allowing Lord to file a second application for
post-conviction relief raising these constitutional claims under both the state and federal
constitutions so that Alaska's outlier status can finally be acknowledged and addressed
70
by the courts.
69 See Graham, 560 U.S. at 82; Roper , 543 U.S. at 578; Miller v. Alabama , 567 U.S.
460, 489 (2012); Montgomery v. Louisiana , 136 S.Ct. 718, 734 (2016).
70
Cf. Hall v. State, 446 P.3d 373, 378 (Alaska App. 2019) (holding that a 'due process
exception exists for claims of newly discovered evidence of innocence"); Grinols v. State,
74 P.3d 889, 896 (Alaska 2003) (holding that a 'defendant must be given the opportunity to
challenge the effectiveness of counsel in a second petition for post-conviction relief").
- 31 - 2702
----------------------- Page 32-----------------------
Senior Superior Court Judge SMITH, concurring and dissenting.
I concur with the Court's decision insofar as it rejects Lord's equal
protection claim and her claims regarding the failure to interview Dr. Sperbeck but write
separately to highlight my concerns regarding the issues raised in Dr. Sperbeck's
affidavit. I dissent from the decision as it applies to whether Lord suffered prejudice due
to her attorneys' failure to file a constitutional challenge to the preclusion of mandatory
parole for GBMI defendants. I will address each point in turn.
ord's challenge to the conditions of confinement
L
In a supporting affidavit, Lord's expert witness Paul Maslakowski stated
that he believed Lord's attorneys should have filed a constitutional challenge to the
requirement that GBMI defendants be placed in Department of Corrections custody. I
concur with the Court's holding that Lord was not prejudiced by the failure to file this
motion (and the concomitant failure to interview Dr. Sperbeck). But I think that the
issues raised by Dr. Sperbeck's affidavit warrant attention. That affidavit raised
significant issues regarding the disparate treatment of GBMI and NGI defendants, ones
that clearly call into question the constitutionality of that disparate treatment - not to
mention the efficacy of the treatment that GBMI defendants currently receive. It is
unfortunate that under Alaska case law, Lord must challenge this disparity in a civil
1
case,
where she has no guarantee of finding either an attorney to represent her or the
funding that probably would be required to maintain the suit, given the probable need for
1 See, e.g., Abraham v. State , 585 P.2d 526, 531-34 (Alaska 1978) (recognizing that an
independent civil action is the proper vehicle for seeking rehabilitative treatment while in
custody).
- 32 - 2702
----------------------- Page 33-----------------------
expert witnesses. This in turn only underlines how profoundly the GBMI verdict is in
no way of any value to a defendant found to be GBMI - it condemns them to treatment
far worse than that afforded their counterparts who are not guilty by reason of insanity
or in whose cases competence has never been raised. I note in this respect that perhaps
the ultimate insult here is that Lord, like most GBMI defendants, did not raise this
defense or acquiesce to the damaging verdict that resulted - it was thrust upon her by
the State, once she raised an insanity defense.
Lord's claim of prejudice resulting from the failure to challenge the
restriction on mandatory parole
Maslakowski also stated in his affidavit that Lord's attorneys should have
filed a constitutional challenge to the preclusion of mandatory parole for GBMI
defendants. The Court rejects Lord's claimthat she was not afforded effective assistance
of counsel by her attorneys' failure to file this motion because Lord suffered no prejudice
2
due to its subsequent decision in State v. Clifton.
I respectfully disagree, for I believe
that, for the reasons that follow, the provision precluding mandatory parole is
unconstitutional, and to the extent this Court's ruling in Clifton upholds that provision,
Clifton should be overruled.
Lord contends that her ineligibility for mandatory parole as a GBMI
defendant violates her right to equal protection because there are dangerous non-GBMI
defendants who are eligible for mandatory parole even if they remain dangerous at the
time of their release. The Court now holds that while Lord's attorney incompetently
failed to file a motion challenging the preclusion of mandatory parole, Lord nevertheless
suffered no prejudice from her attorneys' failure to raise this claim because this Court
2 State v. Clifton, 315 P.3d 694, 703-05 (Alaska App. 2013).
- 33 - 2702
----------------------- Page 34-----------------------
subsequently concluded in Clifton that the preclusion of mandatory parole for GBMI
defendants did not violate equal protection.
Alaska Statute 12.47.050(d) precludes a GBMI defendant from being
released on furlough or parole unless they are no longer receiving the treatment required
by AS 12.47.050(b). That treatment, in turn, is required 'until the defendant no longer
suffers from a mental disease or defect that causes the defendant to be dangerous to the
3
public peace or safety."
This means that a GBMI defendant cannot be released unless
and until they no longer are dangerous, as determined by the Department of Corrections
in the course of that defendant's treatment. And since this prohibition applies to
4
'parole," it necessarily applies to both mandatory and discretionary parole.
As the Court notes, this Court did consider and reject a constitutional claim
against the preclusion of parole in Clifton. The appellant in Clifton there contended that
the statute equated mental illness with dangerousness. This Court rejected that argument
for two reasons: (1) the statute required the State to prove both 'that the defendant
suffered from a mental illness and that, because of this mental illness, the defendant
lacked the substantial capacity to appreciate the wrongfulness of their conduct or to
confirm their conduct to the requirements of the law," and (2) only defendants who were
5
found to be dangerous are required to undergo treatment.
The Court also rejected Clifton's argument that there was 'no good reason
to impose additional restrictions on the parole eligibility of [GBMI defendants] - no
good reason to conclude that [GBMI defendants] pose a greater danger to the public than
3 AS 12.47.050(b).
4 AS 12.47.050(d)(2).
5 Clifton, 315 P.3d at 703.
- 34 - 2702
----------------------- Page 35-----------------------
6
[non-GBMI defendants]." The Court reasoned that the legislature could reasonably
conclude that the mental disease or defect suffered by a GBMI defendant was 'important
to any assessment of whether the defendant can be safely released on parole or furlough"
and hence that GBMI defendants 'will be significantly less receptive to parole
7
supervision and control." This Court did, however, point to a potential due process
issue, noting that there was no procedure by which a GBMI defendant could prove that
8
This
they were no longer dangerous and hence should be eligible for release on parole.
Court concluded, however, that this issue was not ripe for review, since Clifton would
9
not be eligible for discretionary parole for several years.
Because Lord's argument here is virtually identical to that raised in Clifton,
it would appear to be precluded by the holding in that case. I note at the outset that it is
not entirely clear that Clifton did in fact address the preclusion of mandatory parole;
while the Court's language appears to apply to both types of parole, the Court confined
10
its due process discussion and analysis to discretionary parole. But even if Clifton did
uphold the preclusion of mandatory parole against an equal protection challenge, I
believe that the Court's holding was erroneous and that this Court should conclude that
AS 12.47.050(d) is unconstitutional to the extent that it precludes mandatory parole for
GBMI defendants.
Alaska Statute 33.16.010(c) provides, in relevant part, that an incarcerated
individual serving a term of two or more years 'shall be released on mandatory parole
6 Id. at 704.
7 Id.
8 Id. at 704-05.
9 Id.
10 Id. at 703-05.
- 35 - 2702
----------------------- Page 36-----------------------
for the term of good time deductions credited under AS 33.20." Alaska Statute
33.20.010(a), in turn, governs the calculation of good time, stating that incarcerated
prisoners are 'entitled to a deduction of one-third of the term of imprisonment rounded
off to the nearest day if the prisoner follows the rules of the correctional facility in which
11
the prisoner is confined ." Alaska Statutes 33.20.030 and 33.20.040(a) then confirm
that each such individual 'shall be released at the expiration of the term of sentence less
the time deducted for good conduct," with individuals on mandatory parole released to
the 'custody and jurisdiction of the parole board."
The loss of good time is confined by both statute and regulation to whether
the prisoner follows the rules of the facility in which they are housed. In particular,
AS 33.20.050 provides that '[i]f during the term of imprisonment a prisoner commits an
offense or violates the rules of the correctional facility, all or part of the prisoner's good
time may be forfeited under regulations adopted by the commissioner of corrections."
Those regulations, in turn, define more specifically the conduct for which good time may
12
be forfeited and the procedures to be used to determine if good time should be forfeited.
13
All of the specified conduct relates to what the individual does at the facility.
The key point here is that an individual can lose the opportunity to be
released on mandatory parole if and only if they do not follow the rules of the facility -
there is no provision that allows the Department of Corrections to refuse to release an
11 (Emphasis added).
12 22 Alaska Administrative Code (AAC) 05.470 (describing the procedures and types
of punishment available for infractions committed in a state facility, including the loss of
good time).
13 22 AAC 05.400 (describing prohibited conduct punishable by disciplinary action).
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14
individual on mandatory parole because they present a danger to the public. Thus, all
non-GBMI individuals must be released even if they are dangerous, provided they have
not lost their good time, while GBMI defendants cannot be released if they remain
dangerous, even if they have not lost their good time.
Aside from GBMI defendants, there are four categories of incarcerated
individuals who are not eligible for mandatory parole: (1) those sentenced to a
mandatory 99-year term for first-degree murder; (2) those sentenced to a definite term
of 99 years under AS 12.55.125(l); (3) those who committed certain sexual felonies; and
(4) those sentenced for an unclassified felony under AS 11.41.100 or AS 11.41.110
15
(first- or second-degree murder).
All of these categories focus on individuals who have
committed very serious crimes against a person, which suggests that they were adopted
because the legislature believed that individuals who committed these crimes were too
dangerous to be released on mandatory parole. That is, these categories are tied to the
underlying crime of the defendant, not to their personality or any mental health issues
they may have.
GBMI defendants are treated very differently. They cannot be released on
16
mandatory parole unless and until they are determined not to be dangerous. This
indicates that the legislature presumed that, unless proved otherwise on a case-by-case
basis, GBMI defendants are inherently dangerous due to the fact that they suffered from
a mental defect or disease that caused them to lack the substantial capacity either to
14 Id. However, the Alaska Parole Board may refuse to release an individual on
discretionary parole if, inter alia, they 'pose a threat of harm to the public if released on
parole." AS 33.16.100(a)(3).
15 AS 33.20.010(a).
16
AS 12.47.050(b), (d); see also State v. Clifton, 315 P.3d 694, 703 (Alaska App. 2013).
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appreciate the wrongfulness of their conduct or to conform that conduct to the
17
requirements of the law.
Put differently, unlike all other defendants who are ineligible
for mandatory parole, GBMI defendants are precluded from mandatory parole not by
virtue of their conduct, but by virtue of their status as GBMI.
In short, GBMI defendants are treated differently from all other defendants
in two respects: (1) they cannot be released on mandatory parole if they remain
dangerous, even if they otherwise qualify for release for good time, and (2) this
preclusion is based not on their underlying crime, but on the fact that they suffer from
a particular form of mental disease or defect.
The Court's reasons for rejecting similar arguments in Clifton were
erroneous. As noted above, the Court first rejected the claim that the statute equated
mental illness with dangerousness because the State must prove both that the defendant
suffered from a mental illness and that that illness met the criteria set forth in
18
But this misses the point. The Court conceived the issue as relating
AS 12.47.030(a).
to mental illness in general, but the statute actually defines a particular type of mental
illness: a mental illness that causes a person to lack the substantial capacity either to
appreciate the wrongfulness of their conduct or to conform that conduct to the
19
requirements of the law. In so doing, the statute necessarily ties individuals suffering
from a particular kind of mental illness to dangerousness, thereby equating such
individuals with being dangerous.
It is true that the Court implicitly addressed this problem in noting that only
dangerous GBMI defendants may be precluded from being released on mandatory
17 See AS 12.47.030(a).
18 Clifton, 315 P.3d at 703.
19 AS 12.47.030(a).
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parole.20 But as noted above, only GBMI defendants are subject to a requirement that
they affirmatively be found not to be dangerous while other defendants may be released
even if they are still dangerous. The Court rejected an argument that these differences
violated equal protection on the grounds that the legislature could reasonably determine
that, by virtue of their mental defect or disease, GBMI defendants would be less
21
amenable to supervision on parole.
But there are four problems with this analysis.
First, this reasoning misses the central point of mandatory parole: unlike
discretionary parole, mandatory parole is based purely on an individual's behavior in
prison, not on their general amenability to supervision after release, and there is no
reason why a GBMI defendant who follows the rules while in prison necessarily will fail
on parole once released.
Second, in relying solely on amenability to supervision, this analysis
undercuts the Court's reasoning in upholding the preclusion of mandatory parole. A
GBMI defendant who is not dangerous can be released,notwithstandingthefact that they
continue to suffer from the type of mental disease or defect that, in the legislature's view,
rendered them unamenable to supervision. And if that disease or defect is the bar to
release, then there is no reason to confine the preclusion of mandatory parole to
dangerous GBMI defendants.
This suggests that the real issue for the legislature was its concern over the
dangerousness of GBMI defendants, not their amenability to supervision, which leads
to the third problem with respect to the entitlement to mandatory parole: there simply
is no necessary link between dangerousness and success on mandatory parole. In
particular, if the legislature was willing to let all defendants other than GBMI defendants
20 Clifton, 315 P.3d at 703.
21 Id. at 704.
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be released even if they are dangerous, provided that they complied with the rules of the
institution, then there is no basis on which to find that dangerous GBMI defendants who
would otherwise qualify for good time should not be released.
The final problem relates to the requirement that GBMI defendants
affirmatively be found not to be dangerous before they can qualify for release on
mandatory parole. As noted above, this Court explained in Clifton that the lack of any
statutory procedure by which a GBMI defendant could prove that they are no longer
22
dangerous could present a violation of due process.
The Department of Corrections
subsequently promulgated a policy that, on its face at least, resolves that due process
concern. It sets forth a process by which a GBMI defendant can request a hearing to
23
determine whether they no longer are dangerous to public health and safety. I express
no opinion as to whether these procedures in fact provide adequate due process, but they
do not address the equal protection problem presented by the preclusion on mandatory
parole. In particular, all incarcerated individuals who are not GBMI are released as a
matter of right if they otherwise qualify for good time - they do not have to request a
hearing, and not only are they free from the burden of proving they are not dangerous,
they can be released even if they are dangerous. GBMI defendants who qualify for good
time cannot be released unless they first request and participate in a hearing, and they
must provide proof that they are no longer dangerous. And for the reasons identified
above, there is no rational basis for requiring only GBMI defendants to participate in a
hearing before they can be released.
22 Id. at 704-05.
23 Alaska Dep't of Corr., Policies and Procedures 807.22, Due Process Hearings for
Prisoners Adjudicated Guilty But Mentally Ill (2018).
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This last point is particularly significant given the broad range of
defendants who may be found GBMI. The verdict of guilty but mentally ill is not
confined to crimes against a person, much less to violent crimes. Rather, it broadly
applies to all crimes, the vast bulk of which do not involve any violent behavior at all.
For example, a defendant can be found GBMI in the context of an escape from prison,
24
which is a victimless crime.
Yet, all of these individuals must request a hearing before
they can be released on mandatory parole. There simply is no reason why they should
be required to do so.
In short, there is no constitutional basis for the differential treatment GBMI
defendants receive with respect to the preclusion of mandatory parole. Lord therefore
was prejudiced by her attorneys' failure to make this claim. I accordingly respectfully
dissent from the Court's conclusion to the contrary.
24 See Barrett v. State, 772 P.2d 559 (Alaska App. 1989) (upholding GBMI statute in a
case involving second-degree escape).
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