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Cynthia Lord v State of Alaska (4/23/2021) ap-2702

Cynthia Lord v State of Alaska (4/23/2021) ap-2702

                                                                  NOTICE
  

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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).  



                                                                              -  36 -                                                                         2702
  


----------------------- Page 37-----------------------

                                                                                                                                                                                                      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).  



                                                                                                          -  37 -                                                                                                       2702
  


----------------------- Page 38-----------------------

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).  



                                                              -  38 -                                                         2702
  


----------------------- Page 39-----------------------

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.  



                                                                                   -  39 -                                                                               2702
  


----------------------- Page 40-----------------------

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).  



                                                                                          - 40 -                                                                                       2702
  


----------------------- Page 41-----------------------

                                  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).  



                                                                                                     - 41 -                                                                                                   2702
  

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