(specially concurring).
I concur, with the greatest reluctance, in the majority’s holding that a district court does not have discretion to modify a mandatory sentence of life imprisonment for commission of a capital felony, even when the defendant has been found guilty but mentally ill. (I concur unreservedly in the majority’s holdings that the trial court had subject-matter jurisdiction, that the trial court’s order was final and appealable, and that Neely preserved the issue of whether the trial court had discretion to sentence her to other than a mandatory sentence in the penitentiary.) Given this Court’s holding in Neely I that the guilty but mentally ill verdict is constitutional (which is the law of this case), and given the provision in Section 31-20-3 of our statutes that a trial court may only defer or suspend a sentence for a crime not constituting a capital or first-degree felony, I see no escape from the majority’s conclusion that the trial court did not have discretion “to sentence Neely to a mental facility.”1
If today’s majority opinion does nothing else, it severely undercuts the rationale of the majority’s opinion in Neely I. That majority, which was not quite the same as today’s majority, addressed the facial constitutionality of the verdict in light of three challenges: that it deprives the defendant of due process of law; that it deprives her of equal protection of the laws; and that it authorizes imposition of cruel and unusual punishment. 112 N.M. at 704-09, 819 P.2d at 251-256. The Court rejected all three challenges. In connection with defendant’s due-process challenge, the Court said: “The verdict ... may assist in identification of convicted defendants in need of psychiatric treatment and facilitate just sentencing of mentally ill defendants.” Id. at 705, 819 P.2d at 252. If the trial court has no discretion in sentencing a mentally ill defendant, how can the guilty but mentally ill verdict facilitate just sentencing of such a defendant?
Similarly, still rebuffing the due-process challenge, the Neely I majority said (in the language quoted by today’s majority): “Because the legislature left to the discretion of the trial court the determination of whether the legally-mandated sentence for a straightfonmrd guilty verdict should be applied to the guilty but mentally ill convicted defendant, we believe that the guilty but mentally ill verdict is more than a verdict without a distinction.” Id. at 706-07, 819 P.2d at 253-54 (emphasis added).2 Additionally, with respect to Neely’s cruel-and-unusual-punishment challenge, the majority in Neely I reiterated its point that the trial court had discretion, saying (in language also quoted by today’s majority): “[T]he statute allows the court discretion to sentence a mentally ill defendant to a different sentence than that otherwise authorized, indicating the legislature’s intent not to inflict cruel and inhuman punishment on the mentally ill.” Id. at 709, 819 P.2d at 256 (emphasis added).
Today’s majority opinion thus flatly contradicts significant portions of the rationale in Neely I for upholding the constitutionality of the guilty but mentally ill verdict. With those portions'of Neely I overruled sub silentio by today’s majority, it is perhaps not totally unrealistic to suggest that the constitutionality of the guilty but mentally ill verdict has been placed in legal limbo and to express the hope that this Court (or the legislature) will someday revisit the question and apply a more forthright, and less inconsistent, analysis to it. If such a day should ever come (which I realize — given the current climate of near-hysteria over violent crime and lack of sympathy for persons suffering from mental disabilities — is not terribly likely), then I offer my dissenting observations in Neely I, which I summarized as follows:
[T]he guilty but mentally ill verdict distorts the fact-finding process of the jury, resulting in a trial which is not fair and which therefore violates due process____ It misleads the jurors by encouraging them to think that there is some significant difference between a straight “guilty” verdict and a verdict of “guilty but mentally ill,” when there is no such difference. In induces compromise verdicts by seducing jurors into settling on a middle ground between guilty and not guilty when in fact there is no middle ground: The defendant found guilty but mentally ill receives no greater entitlement to psychiatric evaluation and treatment than is already made available to other inmates. The jury, or at least some jurors, will inevitably believe that a guilty but mentally ill verdict will result in the defendant’s receiving either leniency or treatment____
Id. at 713-14, 819 P.2d at 260-61.
Today’s majority opinion certainly demonstrates that any such belief on the part of a jury or jurors (i.e., any belief that a guilty but mentally ill verdict will result in the defendant’s receiving either leniency or treatment) is sorely misplaced.
. The majority places undue emphasis, in my opinion, on the fact that the "only relief” sought by Neely in her motion was to be sentenced "to an appropriate mental facility.” I do not think the specificity of Neely’s motion prevented the trial court from doing what the motion also requested — namely, to consider her mental illness "in crafting a humane, secure, alternative to life in a New Mexico^penitentiary.” If, as this Court clearly stated in Neely I, a trial court has discretion in sentencing a defendant found guilty but mentally ill, I can see no reason why the trial court could not order the defendant "to undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose" as contemplated by Section 31-20-6(B). (Section 31-20-6, however, is tied to Section 31-20-3, in that all of its provisions are applicable only when the trial court defers or suspends a sentence, which, as stated in the text, can only be done in the case of a sentence for a crime not constituting a capital or first-degree felony.)
. The Court added in a footnote: "We do not, however, believe the constitutionality of the statute turns on this.” Id. at 707 n. 7, 819 P.2d at 254 n. 7.