(concurring in part, dissenting in part).
I concur with Parts III through VII of the Court’s opinion. However, on the critical issue in this case — the constitutionality of the guilty but mentally ill verdict and the integrally related question of whether the jury should have been instructed on the consequences of that verdict and the consequences of a verdict of not guilty by reason of insanity — I dissent.
Basically, I have come to a conclusion opposite from that reached by the majority in Part 1(A)(2) of its opinion. In my view, the 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 does this in just the ways the majority says it does not: It misleads the jurors by encouraging them to think that there is some significant difference between a straight “guilty” verdiet and a verdict of “guilty but mentally ill,” when there is no such difference. It 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; but since we fail to ensure that such a defendant actually receives a more lenient sentence or greater opportunities for treatment as other persons convicted of the same offense, we “palter ... in a double sense” with the jury and the defendant: We “keep the word of promise to [their] ear, and break it to [their] hope.”1
These reasons why the guilty but mentally ill verdict is basically unfair, as well as unsound from a policy standpoint, have been thoroughly explored by others, and I shall not add to the existing weight of paper on the subject. See People v. Ramsey, 422 Mich. 500, 520-53, 375 N.W.2d 297, 305-21 (1985) (Levin, J., dissenting); see generally Fentiman, “Guilty But Mentally III”: The Real Verdict is Guilty, 26 B.C.L.Rev. 601 (1985); McGraw, Farthing-Capowich & Keilitz, The “Guilty But Mentally III” Plea and Verdict: Current State of the Knowledge, 30 Vill.L.Rev. 117 (1985); Rodriguez, LeWinn & Perlin, The Insanity Defense Under Siege: Legislative Assaults and Legal Rejoinders, 14 Rutgers L.J. 397 (1983); Slobogin, The Guilty But Mentally III Verdict: An Idea Whose Time Should Not Have Come, 53 Geo.Wash.L.Rev. 494 (1985); Stelzner & Piatt, The Guilty But Mentally III Verdict and Plea in New Mexico, 13 N.M.L.Rev. 99 (1983); Comment, Indiana’s Guilty But Mentally III Statute: Blueprint to Beguile the Jury, 57 Ind.L.J. 639 (1982); Note, The Guilty But Mentally III Verdict and Due Process, 92 Yale L.J. 475 (1983). As the American Bar Association has noted, the guilty but mentally ill verdict
is not a proper verdict at all. Rather it is a dispositional mechanism transferred to the guilt determination phase of the criminal process. The hybrid nature of the verdict is demonstrated by the fact that a jury determination of mental illness at the time of a charged offense is relevant not to criminal responsibility or culpability but to whether accused persons might receive treatment after they have been sentenced * * * *
ABA Criminal Justice Mental Health Standards, standard 7-6.10 commentary, at 393-94 (1988) (emphasis in original).
The majority opinion points to three purposes that it finds the legislature could have intended in enacting our guilty but mentally ill statutes:2 To reduce the number of improper or inaccurate insanity acquittals; to clarify for the jury the distinction between a defendant who is not guilty by reason of insanity and one who is mentally ill yet not criminally insane; and to assist in identifying convicted defendants in need of psychiatric treatment and facilitate just sentencing of mentally ill defendants.3 Unlike the majority, I find the last of these objectives to be illegitimate and the first wholly speculative and devoid of foundation. Though I concede that the second objective — reducing jury confusion and assisting it to understand graduations in degrees of criminal responsibility — is a proper legislative goal, I disagree with the deference the majority accords to this goal in the face of the defendant’s countervailing interest in a fair trial.
As to the first objective, nothing has been cited to us to establish or even suggest that by enacting Sections 31-9-3 and 31-9-4 our legislature was attempting to “reduce the number of improper or inaccurate insanity acquittals.” There is no evidence at all that in New Mexico there has been a significant number of any insanity acquittals, much less improper or inaccurate ones. Indeed, in the only study cited to us discussing the incidence of insanity acquittals in New Mexico, the authors state: “Although hard data is currently unavailable in New Mexico, professionals in the mental health, corrections, and criminal justice fields agree that few defendants in New Mexico have successfully raised the [not guilty by reason of insanity] defense.” Stelzner & Piatt, supra at 113. See also ABA Criminal Justice Mental Health Standards, Part VI introduction, at 323 (“The best evidence suggests that the mental nonresponsibility [insanity] defense is raised in less than 1 percent of all felony cases in the United States and is successful in about a fourth of those.”).
Thus, I conclude that the guilty but mentally ill verdict is, as the amici describe it, “a solution in search of a problem.” If the legislature were concerned with the number of insanity acquittals, without regard to their propriety or accuracy, the legislature might move more directly and seek to abolish the insanity defense altogether, without injecting the confusing and misleading device of an alternative verdict (which, as the ABA states, is not a proper verdict at all).4
With respect to the third of the proffered legislative objectives — helping to identify convicts in need of psychiatric treatment and facilitating just sentencing of mentally ill defendants or, as the majority also phrases it, “allowing the jury to signal to the sentencing court and the department of corrections that ... the defendant is a person in need of evaluation” — there are two problems. First, as the majority itself recognizes, the disposition of the defendant after conviction is ordinarily outside the province of the jury — the jury generally has no business considering the consequences of its verdict or actually making dispositional decisions, and indeed it may be reversible error for the jury to do so. See, e.g., State ex rel. Schiff v. Madrid, 101 N.M. 153, 678 P.2d 821 (1984); United States v. Patrick, 494 F.2d 1150 (D.C.Cir.1974) (permitting jury to make recommendation of psychiatric treatment held reversible error); see also Ramsey, 422 Mich. at 550-51, 375 N.W.2d at 320 (guilty but mentally ill verdict inconsistent with rule that jurors should confine deliberations to issue of guilt or innocence and should not consider potential disposition of defendant after verdict).
The second problem with this third supposed legislative objective is that it is frustrated by the majority’s own holding that instructing the jury on the consequences of a guilty but mentally ill verdict is improper. If we are to recognize the legitimacy of this objective, we should be consistent and inform the jury as to the consequences of its choice, if it finds the defendant mentally ill, between a verdict of guilty but mentally ill and a verdict of not guilty by reason of insanity. I recognize the well-settled rule of law, noted above, that the jury is not to concern itself with the consequences of its verdict; but I believe there is or should be an exception when the verdict is avowedly dispositional in effect. We have adopted such an exception when the jury is called upon to decide a defendant’s disposition in a capital sentencing proceeding. State v. Henderson, 109 N.M. 655, 658-59, 789 P.2d 603, 606-07 (1990). To me, it is no less imperative that, when one purpose of a statute is to enable the jury to participate in the defendant’s disposition after conviction, the jury be instructed on the practical consequences of the different verdicts it is called upon to choose from. To instruct the jury instead — as was done in this case — that it is not to concern itself with the consequences of its verdict, and at the same time to rely on the jury’s ability to send “signals” to the sentencing court and the Corrections Department as an objective legitimating this statute, strikes me as fundamentally unfair.
In point of fact, what the jury really needs are instructions telling it that a defendant found guilty but mentally ill will have precisely the same opportunities for mental treatment as all other prison inmates — no more, no less — and will probably receive the same sentence as any other person convicted of the same crime, mentally ill or not. Likewise, to put such an instruction into perspective, the jury needs to be told that a finding of not guilty by reason of insanity may, and probably will, result in the involuntary commitment of the defendant to the state hospital for an indefinite time and at least until the defendant is “cured.” The absence of any requirement that the court give such consequential instructions, and the failure to so instruct in a particular case, when considered in conjunction with the misleading effect of the verdict itself, in my view render the statutes unconstitutional on their face and as applied. See generally State v. Shickles, 760 P.2d 291, 296-98 (Utah 1988).
Turning to the second of the majority’s three presumed purposes of the guilty but mentally ill verdict, I concede that legislation intended to clarify matters for the jury, to clear up potential sources of confusion,5 and (more particularly in this case) to inform the jury about differences between degrees of criminal responsibility based on differences in impairment resulting from mental illness, has a legitimate purpose. Of course, the appellate courts in New Mexico, in other contexts, have not found it difficult, when they wanted to invalidate a statute dealing with procedure in a criminal case, to characterize such an objective as impermissible in light of the exclusive power in this Court to regulate matters of judicial procedure. See, e.g., State v. Garcia, 101 N.M. 232, 680 P.2d 613 (Ct.App.) (invalidating NMSA 1978, Section 31-11-6, in reliance on State ex rel. Anaya v. McBride, 88 N.M. 244, 539 P.2d 1006 (1975), and Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976)), cert, quashed, 101 N.M. 189, 679 P.2d 1287 (1984). While I certainly would not rely on the Ammerman doctrine to invalidate Sections 31-9-3 and -4, see Maples v. State, 110 N.M. 34, 37-43, 791 P.2d 788, 791-97 (1990) (Montgomery, J., dissenting), it is to me an entirely different question whether those statutes pass constitutional muster under the Due Process Clauses of our state and federal constitutions.
This question cannot be answered solely by examining the legitimacy of the state’s objective in adopting the statute; the nature of the defendant’s interest infringed by the statute, and the strength of that interest, must also be considered. The majority does not in,terms set out a standard of review in a due process case such as this, although by noting in footnote 5 that defendant does not argue for a “heightened standard of scrutiny” the majority implies that some such toothless standard as “minimum rationality” is all that is required to uphold the statute’s constitutionality.6 For its part, the State expressly articulates a standard of due process review: “The test to measure the validity of a statute under due process is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.” The State cites Williamson v. Lee Optical, Inc., 348 U.S. 483, 486-88, 75 S.Ct. 461, 463-65, 99 L.Ed. 563 (1955), in support of this standard.
Williamson, of course, is a case involving economic regulation of a commercial enterprise; not surprisingly, the Supreme Court said: “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.” 348 U.S. at 488, 75 S.Ct. at 464 (citing, inter alia, Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940 (1934)). However the various formulations for gauging a challenge to state regulation of economic and social conditions may have evolved over this century, in my view it remains true today that a due process challenge to a state deprivation of liberty, particularly when the means of deprivation is an assertedly unfair trial, must be assessed by comparing the strength of the state’s interest in enacting the challenged legislation with the depth of the state’s incursion into the individual’s right not to be deprived of her liberty without a fair trial. Given the fundamental role that a fair trial plays in our society, see, e.g., Spencer v. Texas, 385 U.S. 554, 563-64, 87 S.Ct. 648, 653, 17 L.Ed.2d 606 (1966) (“[T]he Due Process Clause guarantees the fundamental elements of fairness in a criminal trial.”), a statute that impairs this right must have a compelling justification indeed. In short, I follow Justice Marshall’s formulation, albeit in a somewhat different context, that “as with other due process challenges, the inquiry should be whether the governmental interests served by any given restriction outweigh the individual deprivations suffered.” Bell v. Wolfish, 441 U.S. 520, 564, 99 S.Ct. 1861, 1887, 60 L.Ed.2d 447 (1979) (Marshall, J., dissenting). I believe this test has been applied, if not expressly articulated, in other, relatively recent Supreme Court decisions, e.g., Ake v. Oklahoma, 470 U.S. 68, 78,105 S.Ct. 1087,1093, 84 L.Ed.2d 53 (1985) (Marshall, J.) (indigent criminal defendant must have access to psychiatric assistance for defense when sanity at issue; “[t]he private interest in the accuracy of a criminal proceeding that places an individual’s life or liberty at risk is almost uniquely compelling.”); Spencer, 385 U.S. at 564, 87 S.Ct. at 654 (prejudicial effect of evidence of prior convictions where offered to enhance penalty weighed against state purpose in deterring recidivism).
In this case the majority and I part company not so much on the nature of the due process inquiry nor on the strength of the defendant’s interest as on the extent, if any, to which that interest has been impaired. The majority and I simply disagree over whether or not the guilty but mentally ill verdict, combined with the failure to instruct the jury on the consequences of that verdict and of an acquittal by reason of insanity, deprived defendant of her right to a fair trial. I have concluded that the guilty but mentally ill verdict is little more than a charade — a subterfuge that surreptitiously deprives defendants suffering from mental illness of the defense of insanity. It deflects the jury’s attention from the issue of guilt or innocence to the extraneous issue of whether, though perhaps guilty, she should receive special consideration because of her mental illness. Since the legislature has not provided for any such special consideration, and since the jury is prevented from being informed of this basic fact, the result is a “procedure which * * * offer[s] a possible temptation to the average man * * * to forget the burden of proof required to convict the defendant * * * [and] denies the latter due process of law.” Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927). I therefore dissent.
. W. Shakespeare, Macbeth, act V, scene vii.
. NMSA 1978, §§ 31-9-3, -4 (Repl.Pamp.1984).
. Identifying defendants in need of treatment and facilitating just sentencing together comprise a possible dispositional purpose for the statutes.
. I express no view as to whether such an attempt by the legislature would be constitutional. Compare State v. Korell, 213 Mont. 316, 690 P.2d 992 (1984) (upholding legislature’s abolition of insanity defense except where relevant to negate element of intent) with State v. Hoffman, 328 N.W.2d 709, 714-15 (Minn.1982) (defendant has due process constitutional right to assert defense of insanity).
. However, as I have argued, the guilty but mentally ill verdict, rather than eliminating confusion, tends to inject it into the jury’s deliberations.
. To be fair, however, the majority does proceed to examine the defendant’s claim of impairment of her right to a fair trial, though it then finds (incorrectly in my view) that that right is not impaired.